Berg v. Commissioner of Social Security

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. East Oneida Street Oswego, NY 13126

FOR DEFENDANT

SOCIAL SECURITY ADMIN. LUIS PERE, ESQ. 625 JFK Building 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

COMMISSIONER OF SOCIAL SECURITY,

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

plaintiff's complaint. Thank you both. I hope you have a wonderful rest of your summer. x * * 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 MeDonough EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter