Berg v. Commissioner of Social Security

• Court: District Court, N.D. New York
• Decided: August 26, 2022
• Docket: 5:21-cv-00189
• Status: Unknown

Opinion

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

WILLIAM B.,

Plaintiff, v. Civil Action No. 5:21-CV-0189 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

AMDURSKY, PELKY LAW FIRM AMY CHADWICK, ESQ. 26 East Oneida Street Oswego, NY 13126

FOR DEFENDANT

SOCIAL SECURITY ADMIN. LUIS PERE, ESQ. 625 JFK Building 15 New Sudbury St Boston, MA 02203

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 of Social Security (“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 heard in connection with those motions on

August 19, 2022, during a telephone conference conducted 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 resulted from the application of proper legal principles and is 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, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is hereby

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

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. disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. 3) The clerk is respectfully directed to enter judgment, based

upon this determination, DISMISSING plaintiff's complaint in its entirety.

David E. Peebles U.S. Magistrate Judge Dated: August 26, 2022 Syracuse, NY

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

Plaintiff,

vs. 5:21-CV-189

Defendant. -------------------------------------------------------x TRANSCRIPT OF DECISION BEFORE THE HONORABLE DAVID E. PEEBLES held on August 19, 2022 James Hanley Federal Building, Syracuse, New York

APPEARANCES (by telephone) For Plaintiff: AMDURSKY, PELKY LAW FIRM 26 East Oneida Street Oswego, NY 13126 BY: AMY CHADWICK, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION 25 New Sudbury Street Boston, MA 21235 BY: LUIS PERE, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: Let me begin by thanking both counsel 2 for excellent and spirited presentations. 3 The background of this matter is as follows. 4 Plaintiff has commenced a proceeding pursuant to 5 42, United States Code, Sections 405(g) and 1383(c)(3) to 6 challenge an adverse determination of the Commissioner of 7 Social Security finding that he was not eligible for the 8 benefits for which he applied. 9 Plaintiff was born in December of 1977 and is 10 currently 44 years of age. He was 41 years old at the 11 alleged onset of disability, that is, the amended onset date 12 of March 7, 2019. 13 Plaintiff resides in Williamstown with his wife and 14 four children, who by my calculation are approximately ages 15 four, seven, ten and eleven years. Plaintiff stands 5-foot 16 9-inches in height and weighs 190 pounds approximately. 17 Plaintiff has a twelfth grade education. He 18 attended Vernon-Verona-Sherrill Central School District where 19 he was in a special education program and he received an IEP 20 diploma. He attended a BOCES diesel and small engine repair 21 course, but states that he did not pass the course. And 22 while in school he repeated one grade. 23 Plaintiff has a driver's license and, in fact, 24 states that he likes to drive. Plaintiff worked from 2007 to 25 2010 as a temporary laborer in various positions and as a 1 farmhand from 2011 to 2016. 2 Mentally, plaintiff suffers from several conditions 3 that have been variously diagnosed, including schizoaffective 4 disorder, antisocial personality disorder, learning disorder, 5 and ADHD. He suffers from anxiety and anger issues. 6 Physically, plaintiff alleges that he suffers from 7 asthma and allergies. Plaintiff has received treatment from 8 various sources, including Physician's Assistant Amy McCune 9 and the Oswego Hospital Behavioral Services where he has been 10 in therapy every other week. There are also two evaluations, 11 psychological evaluations in the record and we'll discuss 12 those in a few moments. 13 Plaintiff has a fairly wide range of activities of 14 daily living. He is able to dress, bathe, groom, cook, help 15 with laundry, sweep and mop. He drives. He engages in 16 repair of machinery and cars. He can mow, weed. He attends 17 picnics with his family. He took his family to a water park. 18 He attends church. He takes his sons to appointments. He 19 watches television, walks, listens to the radio, cares for 20 pets and co-parents his four children. 21 Plaintiff is a smoker and has a not insignificant 22 criminal history, including a period of incarceration. 23 Procedurally, plaintiff applied for Title II and 24 Title XVI benefits on April 10, 2019, alleging an onset date 25 of January 1, 2017, although that was later amended to 1 March 7, 2019. There are prior denials apparently in the 2 record, including one from March 11, 2019 based upon a 3 decision of Administrative Law Judge John Ramos. 4 In support of his application, plaintiff alleges 5 ADHD, learning disorder, depression, asthma, allergies, 6 impulse disorder, and schizoaffective disorder as conditions 7 that limit his ability to perform work functions. 8 A hearing was conducted on September 8, 2020, with 9 the vocational expert by Administrative Law Judge Jeremy 10 Eldred on September 23, 2020. ALJ Eldred issued an 11 unfavorable decision which became a final determination of 12 the Agency on January 26, 2021, when the Social Security 13 Administration Appeals Council denied plaintiff's application 14 for review. This action was commenced on February 18, 2021, 15 and is timely. 16 In his decision, ALJ Eldred applied the familiar 17 five-step sequential test for determining disability, first 18 noting that plaintiff was last insured on September 30, 2021. 19 At step one, he concluded plaintiff had not engaged 20 in substantial gainful activity since the amended onset date. 21 At step two, the ALJ concluded that plaintiff does 22 suffer from severe impairments and impose more than minimal 23 limitations on his ability to perform work functions, 24 including schizoaffective disorder, antisocial personality 25 disorder, learning disorder, attention deficit/hyperactivity 1 disorder, or ADHD. 2 At step three, ALJ Eldred concluded that 3 plaintiff's conditions do not meet or medically equal any of 4 the listed presumptively disabling conditions set forth in 5 the Commissioner's regulations, specifically considering 6 listings 12.03, 12.04, 12.08 and 12.11. 7 The ALJ next concluded that notwithstanding his 8 conditions, plaintiff retains the ability to perform a full 9 range of work at all exertional levels, except as follows: 10 He can understand, remember, and carry out only simple and 11 routine tasks. He can concentrate, persist, and maintain 12 pace in a work setting to the extent necessary to perform 13 only simple and routine tasks. The claimant can interact no 14 more than occasionally with supervisors or co-workers, and is 15 unable to do a job that requires interaction with the public. 16 He can also appropriately deal with ordinary changes in an 17 unskilled occupation that involves only simple and routine 18 tasks. 19 Applying that RFC finding at step four, the 20 Administrative Law Judge concluded that plaintiff is capable 21 of performing his past relevant work as a farmhand, as that 22 position is generally performed, and therefore concluded that 23 he is not disabled. 24 As the parties know, the Court's function at this 25 juncture is extremely limited to determining whether correct 1 legal principles were applied and whether the result is 2 supported by substantial evidence, which is defined as such 3 relevant evidence as a reasonable mind would find sufficient 4 to support a fact. The Second Circuit has noted, including 5 in Brault versus Social Security Administration Commissioner, 6 683 F.3d 443 from 2012, that this is an extremely deferential 7 standard. Under the substantial evidence standard, once an 8 ALJ finds a fact, that fact can be rejected only if a 9 reasonable fact-finder would have to conclude otherwise. 10 Plaintiff has raised three essential contentions in 11 this case. First, he argues that the Administrative Law 12 Judge failed to properly evaluate the opinions of Dr. Andy 13 Lopez Williams and Dr. Michael Boucher, both of whom 14 conducted psychological evaluations of the plaintiff. 15 Secondly, he argues that the Administrative Law 16 Judge should have concluded that plaintiff's conditions meet 17 or equal the listings, and specifically challenges his 18 failure to separately address the four domains in the B 19 criteria and erred in finding less than moderate limitations 20 in those areas. 21 And third, he argues that the residual functional 22 capacity is not supported because it is not based on any 23 competent medical opinions and there is no explanation for 24 distinguishing between interaction with different groups, and 25 also he challenges the failure to include any limitation 1 regarding being off task due to his ADHD. 2 The first argument, of course, as I said, centers 3 upon medical opinions, or I should say reports rather than 4 calling them medical opinions, of Dr. Boucher, who rendered a 5 report on May 11, 2019. It appears at pages 283 to 287 of 6 the Administrative Transcript. And Dr. Andy Lopez Williams, 7 who authored a report, a psychological report on October 13, 8 2017. That appears at pages 665 to 668 of the Administrative 9 Transcript. 10 Because of the date of filing of plaintiff's 11 application, this case is subject to the new amended 12 regulations which took effect for applications filed after 13 March of 2017. Under those regulations, the ALJ does not 14 defer or give any specific evidentiary weight, including 15 controlling weight, to any medical opinions or prior 16 administrative medical findings, including those from a 17 treating source. Instead, the ALJ must consider those 18 opinions using the relevant factors which are not terribly 19 different than the factors under the old regulations, but 20 must particularly address supportability and consistency, and 21 must articulate how persuasive each medical opinion was 22 found, and explain how he or she considered the 23 supportability and consistency of those opinions. 24 The ALJ must also consider other factors that are 25 set out but does not have to explain how he or she considered 1 those factors as appropriate in each case. And, of course, 2 where there are conflicting medical opinions in the record, 3 it is incumbent on the Administrative Law Judge to reconcile 4 those opinions and any conflicts. Veino v. Barnhart, 312 5 F.3d 578, Second Circuit, 2002. It is not the Court's 6 function to weigh those other than to determine whether the 7 correct legal principles were applied and the weight given is 8 supported under the regulations. 9 Dr. Lopez Williams in his 2017 evaluation conducted 10 various testings and found plaintiff meets the criteria for 11 ADHD Combined Presentation Severe, and issued some 12 recommendations. 13 1. William is recommended to explore individual, 14 insight oriented therapy. 15 2. Given the severity of William's attention 16 impairment, a combined psychologic and pharmacologic approach 17 is recommended, if medically appropriate. 18 3. Due to difficulty maintaining and securing 19 stable employment, William should consider seeking services 20 from ACCES-VR in order to secure occupational supports and 21 services. He would likely benefit from job coaching and 22 accommodations to address his executive and attention 23 deficits. 24 The opinion of Michael Boucher from May of 2019 was 25 based on a psychological evaluation. The findings of 1 Dr. Boucher were as follows. There are currently significant 2 limitations on consumer's academic abilities in the area of 3 reading comprehension and on his capacity to sustain focused 4 attention and concentration. Other limitations are noted in 5 the areas of recent recall memory, verbal reasoning, and 6 motor speed and coordination. 7 The recommendations include the following. The 8 consumer appears to have the intellectual resources needed to 9 benefit from supported job finding and retention services if 10 the work is of a hands-on type of a relatively repetitive 11 nature that does not require frequently changing task demands 12 and it does not overwhelm his still somewhat limited stress 13 and frustration tolerances. He should try to work and/or 14 study in non-distracting settings. He may learn new material 15 better if he takes three (about ten minutes) breaks about 16 every 30 to 45 minutes to get up and move around than if he 17 tries to sit still and work on the same material for 18 prolonged periods of time. 19 The Commissioner has argued that these do not 20 constitute medical opinions. Under 20 C.F.R. Section 21 404.1513(a)(2), and there is a similar regulation that 22 applies to Title XVI claims, a medical opinion is a statement 23 from a medical source about what you can still do despite 24 your impairment and whether you have one or more impairment 25 related limitations or restrictions in the following 1 abilities. And one is essentially your ability to perform 2 physical demands of work activities; two is your ability to 3 perform mental demands of work activities. 4 I agree with the Commissioner that these opinions, 5 these reports do not constitute medical opinions that were 6 required to be analyzed under the new regulations. They 7 don't contain specific functional limitations. One requires 8 at least extrapolation from the statements of those 9 psychologists to translate to a functional limitation. But 10 even if they are medical opinions, I do not see anything that 11 undercuts the residual functional capacity. The 12 recommendations of both are just that; they're 13 recommendations, they're not functional limitations. Words 14 like may benefit from, these are recommendations only and not 15 statements that plaintiff must have these accommodations in 16 an RFC. The distinction is drawn in Nolcox v. Berryhill, 17 2019 WL 1331582, from the Northern District of Ohio, 2019, a 18 case cited by the Commissioner. 19 I also note that the reports are not consistent 20 with plaintiff's activities of daily living and treatment 21 notes. I've reviewed the treatment notes and plaintiff is 22 almost consistently referred to as cooperative, respectful, 23 and they show improvement through treatment and medication. 24 I will acknowledge that the Administrative Law 25 Judge's discussion on page 19 of the Administrative 1 Transcript is less than illuminating when it comes to the 2 reports of Dr. Lopez Williams and Dr. Boucher. He only 3 states, "Any such conclusions that are inconsistent with the 4 residual functional capacity established above are 5 unpersuasive, because they are inconsistent with the evidence 6 referenced above regarding the claimant's activities of daily 7 living and positive response to treatment." As I indicated, 8 I'm not sure at all that those reports are inconsistent with 9 the residual functional capacity finding. 10 So I conclude, in any event, there is no error in 11 connection with consideration of the reports of those two 12 psychologists. 13 The second argument relates to the listed 14 presumptively disabling conditions of the Commissioner's 15 regulations. Of course, to meet or equal one of those 16 listings, all criteria set out must be met. Plaintiff 17 challenges consideration of listings 12.03, schizophrenia; 18 12.04, depression; 12.08, impulse control issues and 19 personality issues; and 12.11, neuro-developmental disorders. 20 All require consideration of the so-called B criteria. There 21 are four domains set out, and the plaintiff must have either 22 one extreme limitation in one of those four domains or two 23 marked. 24 The ALJ concluded that there were moderate 25 limitations in understanding, remembering, or applying 1 information, moderate limitations in interacting with others, 2 moderate difficulties in concentrating, persisting or 3 maintaining pace, and moderate difficulties in adapting or 4 managing oneself. It is true that unlike some of the 5 Administrative Law Judge's decisions that I've seen, they're 6 not broken out and discussed separately; they are lumped into 7 one paragraph on page 16 of the Administrative Transcript. 8 However, the substantial evidence supports that conclusion 9 when you consider Dr. Shapiro's consultative report, which 10 shows no more than mild limitations in any area, and the 11 several state agency consultants who reviewed the plaintiff's 12 records and also found no more than mild limitations. 13 The conclusion is also supported by the plaintiff's 14 activities of daily living and response to treatment. I 15 don't find any duty to separately carve out those four areas 16 and discuss them separately. Plaintiff's arguments are based 17 primarily on the reports of Dr. Lopez Williams, Dr. Boucher, 18 and Physician's Assistant Amy McCune, but PA McCune's opinion 19 was found unpersuasive and plaintiff hasn't challenged that 20 finding. And as I indicated previously, Dr. Lopez Williams 21 and Dr. Boucher did not identify specific marked limitations. 22 So I don't find any error and I cannot say that a 23 reasonable fact-finder would have to have found that 24 plaintiff meets the B criteria by having two marked or one 25 extreme limitation among the four domains. 1 The third argument concerns the residual functional 2 capacity. A claimant's RFC, of course, represents a range of 3 tasks that he is capable of performing notwithstanding his 4 impairments. Ordinarily it represents a claimant's maximum 5 ability to perform sustained work activities in an ordinary 6 setting on a regular and continuing basis, meaning eight 7 hours a day for five days a week, or an equivalent schedule. 8 An RFC determination is informed by consideration 9 of all of the relevant medical and other evidence. In this 10 case ALJ Eldred crafted a very restrictive when it comes to 11 the mental component of the RFC. The RFC in my view is 12 supported by the opinion of Dr. Shapiro. It's supported by 13 the state agencies, although both were found rather 14 unpersuasive. That was because the Administrative Law Judge 15 concluded based upon the entirety of the record, including 16 plaintiff's testimony, that he was more limited. But even 17 though those were rejected for that reason, they certainly 18 can still support the RFC. 19 Again, the activities of daily living of the 20 plaintiff were relied on, and the fact that records, 21 treatment records show improvement with treatment and 22 medication. He relied also on plaintiff's testimony that he 23 had looked for work but it was his criminal record that made 24 it difficult to find employment. These are all proper 25 considerations. Plaintiff argues that there is no medical 1 opinion that precisely tracks the residual functional 2 capacity, but there is no duty or obligation on the part of 3 the ALJ to track any one particular opinion. Moxham v. 4 Commissioner of Social Security, 2018 WL 1175210, from the 5 Northern District of New York, 2018. 6 I will acknowledge that in many respects, including 7 this one, the Administrative Law Judge's decision is not a 8 model of clarity. He did not explain why he concluded 9 plaintiff can have occasional contact with supervisors and 10 co-workers but no contact with the public. But as I said 11 before, Dr. Shapiro didn't find any limitations in this area. 12 The treatment notes consistently refer to plaintiff 13 as respectful, cooperative. The state agency consultants, 14 including at 73 and 92, found no social limitations. And 15 Dr. Boucher himself found, "intact ability to interact 16 appropriately with others in settings akin to the testing 17 situation," at 286. So the fact that there is a more 18 limiting provision in the RFC dealing with interaction, it's 19 harmless error, it does not undermine the decision. 20 So I find the residual functional capacity is 21 supported by substantial evidence. I will say that Attorney 22 Chadwick did a commendable job at raising arguments in 23 support of her client's position and argued well; 24 unfortunately, however, I find that I must award judgment on 25 the pleadings to the defendant and order dismissal of 15

1 plaintiff's complaint. 2 Thank you both. I hope you have a wonderful rest 3 of your summer. 4 x * * 5 6 CERTIFICATION 7 8 I, EILEEN MCDONOUGH, RPR, CRR, Federal Official 9 Realtime Court Reporter, in and for the United States 10 District Court for the Northern District of New York, 11 do hereby certify that pursuant to Section 753, Title 28, 12 United States Code, that the foregoing is a true and correct 13 transcript of the stenographically reported proceedings held 14 in the above-entitled matter and that the transcript page 15 format is in conformance with the regulations of the 16 Judicial Conference of the United States. 17 18 19 20 Leen MeDonough 21 EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter 22 23 24 25