Carmona v. Commissioner of Social Security

Opinion

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

CATHERINE ROMERO C.,

Plaintiff, v. Civil Action No. 5:23-cv-750 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

OFFICE OF OSTERHOURT HANNALORE B. MERRITT, ESQ. BERGER DISABILITY LAW and ERIN DUFFY, ESQ. 521 Cedar Way, Suite 200 Oakmont, PA 15139

FOR DEFENDANT

SOCIAL SECURITY ADMIN. HEETANO SHAMSOONDAR, ESQ. OFFICE OF GENERAL COUNSEL and JASON P. PECK, ESQ. 6401 Security Boulevard Baltimore, MD 21235

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), are cross-motions for judgment on the pleadings.1 Oral

argument was heard in connection with those motions on September 5, 2024, 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.

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. 2) The Commissioner’s determination that the plaintiff was not 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.

U.S. Magistrate Judge Dated: September 23, 2024 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x CATHERINE R.C., Plaintiff, -v- 5:23-CV-750 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x DECISION TRANSCRIPT BEFORE THE HONORABLE DAVID E. PEEBLES September 5, 2024 100 South Clinton Street, Syracuse, NY 13261 For the Plaintiff: OSTERHOUT DISIBILITY LAW 521 Cedar Way, Suite 200 Oakmont, Pennsylvania 15139 BY: HANNALORE B. MERRITT, ESQ. ERIN A. DUFFY, ESQ. For the Defendant: SOCIAL SECURITY ADMINISTRATION 6401 Security Boulevard Baltimore, Maryland 21235 BY: JASON PECK, ESQ. Hannah F. Cavanaugh, RPR, CRR, CSR, NYACR, NYRCR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8545 (The Court and all parties present by telephone. Time noted: 2:06 p.m.) THE COURT: Let me begin by thanking both of you for excellent presentations. I've enjoyed working with you. Before we address the merits of the matter, I wanted to broach the question of consent. When this case was filed, it

was assigned to one of my colleague magistrate judges, Christian F. Hummel, and the consent form that was signed by the plaintiff or plaintiff's counsel, actually, at Docket No. 5 consents to Magistrate Judge Hummel's jurisdiction. When the matter was transferred to me, there was a notation on the docket that any request to withdraw consent should be filed within seven days. There was none filed, but I wanted to confirm with plaintiff's counsel: Do you consent to my deciding this case as opposed to issuing a report and recommendation to a district judge? MS. DUFFY: Yes, your Honor, plaintiff consents. THE COURT: Very good. Thank you. Plaintiff has commenced this proceeding pursuant to 42, United States Code, Section 405(g) to challenge an adverse determination by the Commissioner of Social Security finding that she was not eligible for the benefits for which she

applied. The background is as follows: Plaintiff was born in September of 1966 and is currently 58 years of age. She was 53 years old at the alleged onset of disability on August 15, 2019. Plaintiff lives in Syracuse with a grandson. She's 5'6" in height and weighs 230 pounds. She apparently, although there's some equivocation, received a GED or a high school diploma. At 458, it suggests that it was a GED. While in school, she was in regular classes. She also attended two years of college. Plaintiff is left hand dominant.

Plaintiff stopped working in August of 2019. She held various positions while working. She was a customer representative, an appointment clerk, and worked for a medical answering service. She was a janitor. She was a waitress. She was a retail sales clerk and a room service attendant. She is currently working part-time 4 to 15 hours per week preparing individuals to take examinations. That appears at page 36 of the Administrative Transcript. Physically, plaintiff suffers from several impairments, including psoriasis; psoriatic arthritis; joint pain in the shoulder, neck, and back; bilateral knee pain; obesity; hand pain; hypertension, which is controlled by medications; and hyperlipidemia. Mentally, plaintiff suffers from depression and anxiety, however, she has not undergone any psychiatric

hospitalization or outpatient treatment. Her mental condition is addressed through medications prescribed by her primary provider. In terms of activities of daily living -- and these come from 460 and 465 of the Administrative Transcript and other locations, as well -- plaintiff can cook, clean, take care of her grooming. She does laundry. She shops. She can manage money. She drives. She watches television and listens to the radio. She reads and she socializes with friends. Plaintiff is a former smoker.

Procedurally, plaintiff applied for Title II benefits on January 27, 2021, alleging an onset date of August 15, 2019. At page 272, she claimed disability based on arthritis; high cholesterol; degenerative joint decrease; anxiety; high blood pressure; Type II diabetes; unable to sit, stand, or walk long; constant joint pain; fatigue; and weakness. A hearing was conducted on August 19, 2022, by Administrative Law Judge Jeremy Eldred, at which a vocational expert, as well as the plaintiff, testified. ALJ Eldred issued an unfavorable decision on September 12, 2022. That became a final determination of the agency on April 25, 2023, when the Social Security Administration Appeals Council denied plaintiff's application for review. This action was commenced on June 20, 2023, and is timely. In his decision, Administrative Law Judge Eldred

applied the familiar five-step sequential test for determining disability. He first noted that plaintiff's last insured status will occur on December 31, 2025. At step one, ALJ Eldred concluded that plaintiff has not engaged in substantial gainful activity since August 15, 2019, but did acknowledge plaintiff's limited work since the filing of her application. At step two, ALJ Eldred concluded that plaintiff does suffer from severe impairments that impose more than minimal limitations on her ability to perform work functions, including psoriatic arthritis, psoriasis, osteoarthritis of the left knee,

degenerative changes of the right knee, and obesity. At step three, the ALJ 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. The Administrative Law Judge next surveyed the entire record and concluded that plaintiff is capable of performing light work, notwithstanding her impairments, except she can stoop or crouch no more than frequently and can climb, kneel, or crawl no more than occasionally. Applying that RFC, or residual functional capacity, at step four, the Administrative Law Judge concluded that plaintiff is capable of performing her past relevant work as an appointment clerk based on the testimony of a vocational expert. The ALJ therefore concluded that plaintiff was not disabled at

the relevant times. As we have discussed, and as the parties know, my role is limited to determining whether correct legal principles were applied and the resulting determination is supported by substantial evidence. It is an extremely deferential standard. It is more limiting than the clearly erroneous standard, as the Second Circuit noted in Brault v. Social Security Administration Commissioner, 683 F.3d 443, Second Circuit, 2012. As the Second Circuit noted, this standard means that once an ALJ finds a fact, that fact can be rejected by the Court only if a

reasonable factfinder would have to conclude otherwise. The standard was more recently reiterated in Schillo v. Kijakazi, 31 F.4d 64, 2022. In this case, plaintiff raises two contentions essentially. One, the failure to include manipulative limitations in the RFC, and woven into that is the contention that carpal tunnel syndrome at step two should have been determined to be a severe medically determinable impairment. The second point is the argument that the Administrative Law Judge committed error when evaluating plaintiff's symptoms. Turning first to manipulative limitations, this implicates the RFC assessment which represents a finding of the range of tasks a claimant is capable of performing notwithstanding his or her impairments, 20 C.F.R. Section 404.1545(a), Tankisi v. Commissioner of Social Security, 521 F.

App’x 29, Second Circuit, 2013. This means that an RFC 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, Tankisi, 521 F. App’x, at 33. An RFC determination is informed by consideration of a claimant's physical and mental abilities, symptomology, and other limitations that could interfere with work activities on a regular and continuing basis, as well as all of the relevant medical and other evidence.

As a backdrop, when evaluating plaintiff's arguments, the Court notes that, of course, it is plaintiff's burden through step four to establish not only impairments, but limitations caused by those impairments. Plaintiff's argument is based on the Administrative Law Judge's rejection of opinions of Dr. Figueroa and Dr. Seok. When it comes to evaluating medical opinions, under the new regulations applicable to applications filed after March 27, 2017, the Commissioner no longer defers or gives any specific evidentiary weight, including controlling weight, to any medical opinions, but rather must consider whether those opinions are persuasive by primarily considering whether they are supported by and consistent with the record in the case, 20 C.F.R. Section 404.1520(c). And then an ALJ must articulate in his or her determination how persuasive he or she finds all of the medical

opinions and explain how the factors of supportability and consistency of those opinions was considered. The focus, of course, is on the three opinions in the record that speak to manipulative limitations. I note that there's no medical source statement from any treating source, including notably plaintiff's treating rheumatologist. Dr. Seok issued a prior administrative medical finding containing opinions on August 18, 2021. That appears at pages 74 to 87 of the Administrative Transcript. Dr. Seok did find at page 84 that the plaintiff experiences manipulative

limitations, found no limit in reaching, but limitation in handling on the right side and fingering on the right side and feeling on the right side. The report also reflects at page 85 that the plaintiff had difficulty zipping, buttoning, and tying, arthritic changes in both hands and PIP joints. The Administrative Law Judge compared this to a later opinion, which I will address in a moment, at pages 20 to 21 of the Administrative Transcript, and found it to be less persuasive. The second opinion that was referenced by the Administrative Law Judge came from Dr. Perrotti. It's in the form of a prior administrative finding, also. It is dated December 20, 2021. It appears at 88 to 102 of the Administrative Transcript. In his or her report, at page 99, Dr. Perrotti finds that the plaintiff does not suffer from manipulative limitations.

The Administrative Law Judge at 20 to 21 finds that Dr. Perrotti's opinion is more persuasive than that of Dr. Seok and cites reasons. One, the rationale of Dr. Seok is not as lengthy or detailed as that provided by Dr. Perrotti. Two, Dr. Seok's opinion is not consistent with all of the evidence in the record. Three, the records from the claimant's rheumatologist were not available to Dr. Seok. And four, the most recent of these newly available records state that the claimant has no joint tenderness or deformities on physical examination. In my view, the rationale provided adequately

complies with the medical opinion regulations. At page 100, Dr. Perrotti has a healthy analysis. Perhaps, as we have discussed, it could have been clearer when it comes to the statement that the claimant is able to zipper, button, and tie at the time of the internal medicine CE examination, however, I don't think that that rises to the level of an error or undermines the reliance on Dr. Perrotti's opinion as providing substantial evidence. It is well accepted that prior administrative medical findings can provide substantial evidence to support a determination if supported, Woytowicz v. Commissioner of Social Security, 2016 WL 6427787, from the Northern District of New York, October 5, 2016, it is a report and recommendation that was adopted at 2016 WL 6426385, Northern District of New York, October 28, 2016. There's also an opinion in the record from

consultative examiner Dr. Rita Figueroa, and that appears at pages 464 to 468. It was performed on August 9, 2021, and, of course, both Dr. Seok and Dr. Perrotti had available to them this report. It does state a diagnosis of carpal tunnel syndrome even though there's no indication in the record that I could find that plaintiff's treating rheumatologist has ever diagnosed plaintiff as suffering from carpal tunnel syndrome. Interestingly, when it comes manipulation, which is really what we're looking at, Dr. Figueroa states she will have moderate limitations for activities requiring fine motor skills.

I'm not entirely sure that's not consistent with the residual functional capacity finding, but assuming that it is, it is inconsistent with Dr. Perrotti's report and opinions. The Administrative Law Judge reviewed Dr. Figueroa's opinions at page 21 and found the opinion not to be persuasive. The first reason expressed is that it is given in terms of vague language. Second, the moderate, marked, and severe limitations are not well supported by her own physical examination findings and noted several of those findings, including the grip strength, which she found to be four out of five in plaintiff's right hand and full in left hand. The third reason cited is that the description of plaintiff's limitations are inconsistent with other substantial evidence, including activities of daily living, treatment history, and positive response to treatments. Again, I find no error in evaluation of Dr. Figueroa's report.

I do agree with the plaintiff's counsel that there are manipulative limitations associated with the position of appointment clerk. Handling in DOT 237.367-10 is reported to be frequent, meaning one-third to two-thirds at a time, and fingering, occasionally up to one-third of the time. I'll assume that that is inconsistent with Dr. Figueroa, but it is not inconsistent with Dr. Perrotti's report, and the Administrative Law Judge found that plaintiff could meet these requirements, and I find that that is supported by substantial evidence.

To the extent that plaintiff is making a step two argument, that is that the carpal tunnel syndrome should have been found to be severe, I reject that. And in any event, if it was error, it is harmless. The Administrative Law Judge proceeded to step three of the sequential determination and stated at page eight that all of plaintiff's impairments were considered, both severe and nonsevere, in formulating the RFC. So in conclusion, I find no error in failing to include manipulative limitations in the RFC finding. Turning to the analysis of plaintiff's subjective reports, obviously, an Administrative Law Judge must take into account plaintiff's subjective complaints in rendering the five step disability analysis, 20 C.F.R. Section 404.1529(a). When examining the issue, the Administrative Law Judge applies two steps: First, assessing whether the claimant has medically

determinable impairments that could reasonably be expected to produce the alleged symptoms, and then, if so, must evaluate the intensity and persistence of those symptoms and the extent to which they may limit a claimant's ability to perform work-related activities. This analysis is included in several locations, including notably, Social Security Ruling 16-3p. When making the analysis, the Administrative Law Judge may consider certain relevant factors, including a claimant's daily activities; the location, duration, frequency, and intensity of any symptoms; any precipitating and aggravating

factors; the type, dosage, effectiveness, and side effects of any medications taken; other treatment received; and other measures taken to relieve the symptoms, 20 C.F.R. Section 404.1529(c)(3)(i) through (vi). I note that if the plaintiff's testimony concerning subjective complaints is rejected, an ALJ must explicitly state the basis for doing so with sufficient particularity to allow for meaningful judicial review, Tome v. Schweiker, 724 F.2d 711, Second Circuit, 1984. I also note, significantly, that an ALJ's assessment of an individual's subjective complaints regarding his or her pain and other symptoms is entitled to substantial deference by a reviewing court, Aponte v. Secretary of the Department of Health and Human Services of the U.S., 728 F.2d 588, Second Circuit 1984; Shari L. v. Kijakazi, 2022 WL 561563, Northern District of New York, February 24, 2022, from Magistrate Judge

Baxter; Edward J. v. Kijakazi, 2022 WL 4536257, Northern District of New York, September 28, 2022, from Magistrate Judge Stewart. In this case, plaintiff's claims were summarized by the Administrative Law Judge at page 19 of his decision. The Administrative Law Judge then applied the two step analysis, finding first that the medically determinable impairments experienced by the plaintiff could reasonably be expected to cause the symptoms alleged, but finding that the evidence did not fully support plaintiff's allegations. The Administrative

Law Judge outlined his reasoning for making that finding at pages 19 and 20 and 22, citing not only the medical opinions, including, significantly, Dr. Perrotti's opinion, but also plaintiff's conservative treatments, her wide-ranging activities of daily living, her treatment records, and clinical findings, which did not substantiate the extent to which she claims she is limited, diagnostic test results, and the exam findings of Dr. Figueroa. I find that there's no basis to set aside the Administrative Law Judge's analysis of plaintiff's subjective complaints. In sum, I find no legal error was committed by the Administrative Law Judge and that substantial evidence supports the resulting determination, and I will therefore grant judgment on the pleadings to the defendant and order dismissal of plaintiff's complaint.

Thank you, both, for excellent presentations. I hope you have a good afternoon. (Time noted: 2:31 p.m.)

I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR, Official U.S. 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. Dated this 10th day of September, 2024. s/ Hannah F. Cavanaugh______________________ HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR Official U.S. Court Reporter