Babcock v. Commissioner of Social Security

• Court: District Court, N.D. New York
• Decided: February 6, 2020
• Docket: 6:19-cv-00242
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

DARINDA B. B.,

Plaintiff, v. Civil Action No. 6:19-CV-0242 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

DOLSON LAW OFFICE STEVEN R. DOLSON, ESQ. 126 North Salina St., Suite 3B Syracuse, NY 13202

FOR DEFENDANT

HON. GRANT C. JAQUITH FERGUS J. KAISER, ESQ. United States Attorney for the Special Assistant U.S. Attorney Northern District of New York P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198

DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner, pursuant to 42 U.S.C. '' 405(g) and 1383(c)(3), are cross-

motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on January 23, 2020, during a telephone conference held on the record. At the close of argument, I issued a bench

decision in which, after applying the requisite deferential review standard, I found that the Commissioner=s determination did not result from the application of proper legal principles and is not supported by substantial evidence, providing further detail regarding my reasoning and addressing

the specific issues raised by the plaintiff in this appeal. After due deliberation, and based upon the court=s oral bench decision, a transcript of which is attached and incorporated herein by

reference, it is hereby ORDERED, as follows: 1) Plaintiff=s motion for judgment on the pleadings is GRANTED. 2) The Commissioner=s determination that plaintiff was not

disabled at the relevant times, and thus is not entitled to benefits under the

1 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Social Security Act, is VACATED. 3) The matter is hereby REMANDED to the Commissioner, without a directed finding of disability, for further proceedings consistent with this determination. 4) The clerk is respectfully directed to enter judgment, based

upon this determination, remanding the matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case.

U.S. Magistrate Judge

Dated: February 6, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------x DARINDA BRIANA B.,

Plaintiff,

vs. 6:19-CV-242

Defendant. ----------------------------------------------------x DECISION - January 23, 2020 James Hanley Federal Building, Syracuse, New York HONORABLE DAVID E. PEEBLES United States Magistrate-Judge, Presiding

APPEARANCES (by telephone) For Plaintiff: STEVEN R. DOLSON Attorney at Law 126 North Salina Street Syracuse, New York 13202

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel 26 Federal Plaza New York, New York 10278 BY: FERGUS J. KAISER,ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: I have before me a request by the 2 plaintiff for judicial review of an adverse determination by 3 the Commissioner of Social Security pursuant to 42, United 4 States Code, Sections 405(g) and 1383(c)(3). The background 5 is as follows. 6 Plaintiff was born in May of 1989. She is 7 currently 30 years old. She was 27 years of age at the time 8 of the amended alleged onset date of December 26, 2016. 9 Plaintiff lives alone in an apartment in Lowville, 10 New York. She stands 5 foot, 2 inches in height and is 11 approximately 202 pounds in weight. Plaintiff does not have 12 a driver's license. Plaintiff completed ninth grade. She 13 was in special education classes classified as learning 14 disabled and attention-deficit/hyperactivity disorder, or 15 ADHD. Plaintiff did not achieve a GED. According to her, 16 she reads at a seventh grade level. 17 Prior to 2015 plaintiff had children. She has a 18 son who has been adopted by others. She has baby twins that 19 were taken from her at birth and are in foster care; she does 20 have some visitation. And she has two older children who are 21 with their father. 22 Plaintiff last worked on December 24, 2007. She 23 was fired. She was at that time working as a call center 24 associate handling calls for Sirius Radio customers. She was 25 fired from that position. Prior to that she worked as a 1 kitchen helper in a hospital, a meal preparer, and a laborer 2 in a summer youth program. 3 The Administrative Law Judge examined those 4 positions and concluded that plaintiff did not at any point 5 engage in what can be characterized as substantial gainful 6 activity since her amended onset date. The Administrative 7 Law Judge also concluded at step four that the plaintiff has 8 no past relevant work. He did not consider those positions 9 as substantial gainful employment rising to a level of past 10 relevant work. 11 Physically, plaintiff testified she does not suffer 12 from any condition that precludes her from performing work 13 functions. That's at page 41 of the Administrative 14 Transcript. She is somewhat obese but it does not appear to 15 limit her ability to perform basic work functions. 16 Mentally, plaintiff has been diagnosed as suffering 17 from major depressive disorder, learning disability, panic 18 disorder, personality disorder, borderline personality 19 disorder, also possible bipolar disorder. She receives 20 treatment from the Lewis County Mental Health Center, 21 including from Nurse Practitioner April Diles and Nurse 22 Practitioner Chelsea Ashcroft. 23 Plaintiff has been prescribed Effexor. She also is 24 taking Trazodone to assist her in sleeping. In the past she 25 has also tried Paxil, Zoloft and Celexa. She goes to the 1 mental health center approximately every two weeks or as 2 needed. Plaintiff was hospitalized in August of 2016 with 3 suicidal ideation. She was also hospitalized as suicidal in 4 June of 2015. 5 Plaintiff has in the past suffered from substance 6 abuse, including opiates, heroin, cannabis and 7 methamphetamines, beginning around 2015. She has undergone 8 treatment in various programs. She has apparently been sober 9 and clean from drugs since December of 2016. 10 In terms of activities of daily living, plaintiff 11 is able to cook, clean, shop, care for her hygiene needs, do 12 laundry, manage finances, she walks, reads, listens to music, 13 she does go bowling, and she likes to play darts. 14 Procedurally, plaintiff applied for Title XVI 15 benefits on August 27, 2015 alleging an onset date of 16 August 27, 2015. At the hearing in this matter that date was 17 amended to December 26, 2016. That's at pages 31 and 32 of 18 the Administrative Transcript. 19 In support of her application, plaintiff claimed 20 disability based on her learning disability and emotional 21 disability. That's at page 150. A hearing was conducted on 22 February 12, 2018 by Administrative Law Judge Kenneth 23 Theurer. The ALJ issued a decision on March 28, 2018 finding 24 that plaintiff was not disabled at the relevant times and, 25 therefore, ineligible for the benefits sought. That became a 1 final determination of the Agency on January 3, 2019 when the 2 Social Security Administration Appeals Council denied 3 plaintiff's request for administrative review by that body. 4 In his decision ALJ Theurer applied the familiar 5 five-step test for determining disability. 6 At step one he concluded plaintiff had not engaged 7 in substantial gainful activity since the amended onset date 8 alleged in the application. 9 At step two he concluded that plaintiff suffers 10 from conditions that do limit her ability to perform 11 work-related functions, including depression, borderline 12 personality disorder, attention-deficit/hyperactivity 13 disorder, panic disorder, and a history of substance abuse. 14 At step three the Administrative Law Judge 15 concluded that plaintiff's conditions do not meet or 16 medically equal any of the listed presumptively disabling 17 conditions set forth in the Commissioner's regulations, 18 specifically considering listings 12.04, 12.06 and 12.08. In 19 arriving at that conclusion, the Administrative Law Judge 20 gave great weight to the opinions of T. Bruni, at Exhibit 1A, 21 the Agency psychologist that examined plaintiff's records. 22 After making a determination and reviewing the 23 record, ALJ Theurer concluded that plaintiff was capable of 24 performing at a full range of exertional levels with 25 limitations as follows. 1 She retains the ability to understand and follow 2 simple instructions and directions; perform simple tasks with 3 supervision and independently; maintain 4 attention/concentration for simple tasks; regularly attend to 5 a routine and maintain a schedule; she can relate to and 6 interact with others to the extent necessary to carry out 7 simple tasks, but should avoid work requiring more complex 8 interaction or joint effort to achieve work goals; she should 9 have no more than incidental contact with the public and can 10 handle reasonable levels of simple work-related stress in 11 that he -- meaning she, I assume -- can make occasional 12 simple decisions directly related to the completion of his -- 13 meaning her -- tasks in a stable, unchanging work 14 environment. The ALJ went on to define incidental as more 15 than never and less than occasional. Simply, the job should 16 not involve direct interaction with the public but the 17 plaintiff does not need to be isolated away from the public. 18 At step four, applying that residual functional 19 capacity, or RFC, finding, he noted that plaintiff did not 20 have any past relevant work, and therefore proceeded to step 21 five. 22 At step five the Administrative Law Judge, after 23 eliciting the testimony of a vocational expert, concluded 24 that despite her conditions and the limitations associated 25 with those conditions, plaintiff is capable of performing 1 available work in the national economy, including as a 2 commercial cleaner, a machine feeder, and a cleaner 3 housekeeping, and, therefore, was not disabled at the 4 relevant times. 5 As you know, my task is limited and the standard 6 that I apply is extremely deferential. I must determine 7 whether substantial evidence supports the determination and 8 whether correct legal principles were applied. 9 The term substantial evidence is construed to mean 10 such relevant evidence as a reasonable mind might accept as 11 adequate to support a conclusion. As the Second Circuit 12 noted in Brault versus Social Security Administration, 683 13 F.3d 443, from 2012, this standard is extremely stringent and 14 it means that facts determined by the ALJ can be rejected 15 only if a reasonable fact finder would have to conclude 16 otherwise. 17 The arguments raised by the plaintiff were 18 summarized and center upon the Administrative Law Judge's 19 recitation of the record and whether it was selective, unduly 20 selective, relied on records that predate the alleged amended 21 onset date, and also whether they were accurately stated. 22 And secondly, whether the medical opinions that unanimously 23 show at least some diminution in the ability to perform a 24 schedule and maintain concentration and attention were 25 improperly rejected. 1 Obviously, as a backdrop I note that it is 2 plaintiff's burden through step four to show her limitations. 3 At step five the burden shifts, of course, to the 4 Commissioner. 5 It is unquestionable that the Administrative Law 6 Judge cited many records in his decision, including records 7 from T. Bruni and Dr. Santoro, and records elsewhere as well 8 that predate the amended onset date. But there is no 9 indication that I could find of any significant deterioration 10 of plaintiff's condition. And as plaintiff candidly 11 conceded, records that fall outside of the relevant period 12 can be relevant to the condition of the plaintiff during the 13 period in question. The real issue that I have with this 14 case is in the findings by ALJ Theurer that plaintiff is 15 capable of maintaining attention and concentration for simple 16 tasks and regularly attend to a routine and maintain a 17 schedule. 18 There are three opinions that speak to that. 19 Dr. Santoro at page 209 concluded that plaintiff would have a 20 moderate difficulty in maintaining a regular schedule. 21 T. Bruni at page 64 concluded that plaintiff's ability to 22 perform activities within a schedule, maintain regular 23 attendance, and be punctual within customary tolerances is 24 moderately limited. In her medical source statement, Nurse 25 Practitioner Chelsea Ashcroft at page 412 concluded that 1 plaintiff's ability to maintain regular attendance and be 2 punctual within customary, usually strict tolerances was 3 seriously limited. 4 Those three opinions were given great weight by the 5 Administrative Law Judge and all three indicate some 6 diminution in this area. I understand the reliance on Flake 7 and the argument that perhaps this constitutes harmless error 8 because at least a moderate limitation in this area would not 9 necessarily be inconsistent with the ability to perform 10 unskilled work. 11 The problem I have here is that the Administrative 12 Law Judge affirmatively addressed this issue in his RFC and 13 also in the hypothetical that was based on the RFC and posed 14 to the vocational expert that stated that the plaintiff can 15 regularly attend to a routine and maintain a schedule. There 16 isn't any medical opinion that says that, and the three 17 medical opinions say there is at least some diminution. This 18 could be regarded as falling within the four corners of Stacy 19 versus Commissioner, a recent decision. It's reported at 20 2020 WL 61986 from the Second Circuit, January 7, 2020. 21 But in any event, in my view the Administrative Law 22 Judge failed and should have discussed this aspect. I 23 understand that Nurse Practitioner Ashcroft is not 24 necessarily an acceptable medical source, but when all three 25 of the only opinions in the record show some diminution, 1 there should have been a discussion, and she being the only 2 person that treated and saw plaintiff on a longitudinal 3 basis, if hers was to be rejected, there should have been an 4 explanation given as to why it was rejected over the opinion 5 of a person who only reviewed her medical records, and 6 significantly long ago, and Dr. Santoro who only examined her 7 once. 8 So I don't find that the determination in this case 9 was supported by substantial evidence. I don't find 10 persuasive evidence of disability. So I think that the 11 matter should be remanded to the Agency for further 12 consideration consistent with this decision. 13 I will issue a short form order to that effect. 14 And I want to thank you both for excellent presentations. It 15 was an interesting case, I enjoyed working on it. Thank you. 16 * * * 17 18 19 20 21 22 23 24 25 CERTIFICATION

I, EILEEN MCDONOUGH, RPR, CRR, Federal Official Realtime Court Reporter, in and for the United States District Court for the Northern District of New York, do hereby certify that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.

Leen Deneragh EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter