Chimelis v. Saul

Opinion

JOSE C.,

Plaintiff, Civil Action No. 3:19-CV-0418 (DEP) v.

NANCY A. BERRYHILL, Commissioner of Social Security,1

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LACHMAN, GORTON LAW FIRM PETER A. GORTON, ESQ. Attorneys at Law 1500 Main Street Endicott, NY 13761

FOR DEFENDANT HON. GRANT C. JAQUITH AMELIA STEWART, ESQ. United States Attorney Special Assistant U.S. Attorney P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198

DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

Plaintiff=s complaint named Nancy A. Berryhill, in her capacity as the Acting Commissioner of Social Security, as the defendant. On June 4, 2019, Andrew Saul took office as Social Security Commissioner. He has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See 42 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, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.2 Oral argument was heard in connection with those motions on August 20, 2020, 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:

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. 1) Defendant’s motion for judgment on the pleadings is GRANTED. 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) clerk is respectfully directed to enter judgment, based

upon this determination, DISMISSING plaintiff's complaint in its entirety. hu. Alta David E. Peebles U.S. Magistrate Judge Dated: August 28, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x JOSE C., Plaintiff, -v- 3:19-CV-418 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES August 20, 2020 100 South Clinton Street, Syracuse, New York For the Plaintiff: (Appearance by telephone) LACHMAN & GORTON LAW OFFICE P.O. Box 89 1500 East Main Street Endicott, New York 13761 BY: PETER A. GORTON, ESQ. For the Defendant: (Appearance by telephone) SOCIAL SECURITY ADMINISTRATION 625 JFK Building 15 New Sudbury Street Boston, Massachusetts 02203 BY: AMELIA STEWART, 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: 11:10 a.m.) THE COURT: I have before me a challenge to a finding by the Commissioner of Social Security that plaintiff was not disabled at the relevant times and, therefore, ineligible for benefits for which he applied. The challenge is brought

pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3). The background is as follows: Plaintiff was born in February of 1963. He is currently 57 years of age. He was 50 years old at the alleged onset of his disability, which he claims to be September 2, 2013. Plaintiff stands 5'7" in height and weighs 165 pounds. He lives in Binghamton where he moved in April of 2015. He lives in a former hotel that has been converted and houses primarily persons with criminal convictions and sex offenders. It is unclear what the extent of his formal education was. It appears that he may have dropped out during or after 9th grade. He may also have been in special education classes. He reads at a second grade level, but is able to add and subtract. Plaintiff does not have a driver's license. He relies on public transportation and his bicycle for getting

around. Plaintiff, in terms of his work, proves to be a fairly poor historian and it is difficult to piece together precisely when and where he worked. He's worked as a temporary laborer, he has worked as a grocery stock clerk, he has worked as ad installer placing advertisements on buses, and he has worked as a delivery person for a florist. He ran into difficulties at one of his positions because he withheld his criminal conviction from his application. He left early and did not return and has experienced assaults by coworkers at one or

more of his places of employment. Physically, plaintiff is not making any claims that his physical conditions have imposed limitations on his ability to perform work functions. The focus of plaintiff's claim is on his mental condition, which, as the Administrative Law Judge noted, has been variously described and diagnosed. Among other things, he's been found to have suffered from major depressive disorder, a generalized anxiety disorder, and impulse control disorder. There is indication that he may have been diagnosed at one point in time with posttraumatic stress disorder, or PTSD, a panic disorder with the beginning of agoraphobia, a learning disability, and possibly bipolar disorder, as well as pedophilia. Plaintiff has obtained treatment through various sources, including the Lourdes Center for Mental Health where he

sees therapist Matthew Scott and Psychiatric Nurse Practitioner Jeanette Lee. In terms of his general medical needs, he sees Dr. John Caruso at Lourdes Center for Family Health and has since June of 2017. There was an incident on August 12, 2015, when, at the suggestion of his healthcare providers, plaintiff was transported to an emergency room by ambulance. He, however, left against medical advice prior to being seen by any doctors. He was sent by Dr. Trevor Litchmore on that occasion. In terms of activities of daily living, plaintiff is able to groom, use public transportation, watch television. He

attends church weekly, he shops, does laundry, cooks, he rides his bicycle, and there was some indication that he may play handball. Plaintiff has been prescribed several medications over time, including Seroquel, Duloxetine, Paxil, Remeron, Gemfibrozil, Ziprasidone, Cyclobenzaprine, Geodon, and Lexapro. Plaintiff has a conviction from March of 2005 for molesting an eight-year-old stepdaughter. He is a registered sex offender. There's also apparently a prior conviction for possession of crack cocaine and plaintiff is a recovering or recovered addict who has in the past used heroin, crack, marijuana, and methamphetamines. Plaintiff is a heavy smoker. He smokes between one and two packs of cigarettes daily. The procedural history for this matter is as follows: Plaintiff applied for Title II and Title XVI benefits on

August 18, 2015, as I indicated, alleging an onset date of September 2, 2013. He claims disability based on major depressive disorder, general anxiety disorder, pedophilia, panic disorder, and being illiterate. A hearing was conducted on February 6, 2018, by Administrative Law Judge Jennifer Gale Smith to address plaintiff's claims. At that hearing, a vocational expert testified, as well as the plaintiff. On March 26, 2018, ALJ Smith issued a decision that was unfavorable to the plaintiff. On February 12, 2019, that became a final determination of the agency when the Social Security

Administration Appeals Council denied plaintiff's application for a review. In doing so, the Social Security Appeals Council accepted newly submitted evidence, but determined that it would not alter the outcome and, therefore, denied review. This matter was commenced on April 8, 2019, and is timely. In her decision, ALJ Smith applied the familiar five-step sequential test for determining disability, first noting that plaintiff's insured status expired on September 30, 2013. At step one, the Administrative Law Judge concluded plaintiff had not engaged in substantial gainful activity since September 2, 2013. At step two, she concluded that plaintiff does suffer from severe impairments that impose more than minimal limitations on his ability to perform basic work functions, including impulse control disorder, depressive disorder, and

anxiety disorder. In doing so, she explained at page 14 of the Administrative Transcript that she understood that plaintiff's mental condition had been variously described and diagnosed, but in the end, it was not important what label was placed on it, but rather what the limitations associated with it and the symptoms were, and she made it clear that she had considered all of the symptoms reported concerning plaintiff's mental condition. At step three, ALJ Smith concluded that plaintiff's condition does not meet or medically equal any of the listed

presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering listings 12.04, 12.06, 12.08, 12.11, and 12.05. After determining plaintiff's residual functional capacity, which we will discuss in more depth momentarily, at step four, Administrative Law Judge Smith concluded that plaintiff is capable of performing his past relevant work as an ad material distributor, which, according to the vocational expert, constitutes light work with an SVP of 2. At step five, as an alternative basis for her decision of no disability, after consulting with the vocational expert and posing a hypothetical that mirrored the residual functional capacity finding, ALJ Smith concluded that plaintiff is capable of performing as a kitchen helper, a cleaner, a warehouse worker, a photocopy machine operator, and a

cleaner/housekeeping and, therefore, found that plaintiff was not disabled at the relevant times. The Court's task in this case is limited. I must determine whether correct legal principles were applied and the resulting determination is supported by substantial evidence. As the Second Circuit Court of Appeals noted in Brault v. Social Security Administration, 683 F.3d 443 from 2012, the substantial evidence test is a stringent test akin to and even more stringent than clearly erroneous. Substantial evidence, of course, is defined as such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion. The Second Circuit noted in Brault that under the standard, when the Administrative Law Judge finds a fact, that fact can be rejected only if a reasonable factfinder would have to conclude otherwise. In this case, plaintiff raises five basic contentions arguing that the residual functional capacity finding of the Administrative Law Judge is not supported and failed to recognize the extent of plaintiff's mental condition and the triggers associated with those being workplace stress. Secondly, he argues that the opinions of Dr. Moore and Dr. Brown were not properly weighed and evaluated by the Administrative Law Judge and that she substituted her views for the opinions of those two physicians. Thirdly, plaintiff argues that the failure to include any limitation on plaintiff's schedule to

accommodate the limitations on his ability to stay on task and maintain attendance is not supported. Fourth, he argues that the Social Security Administration Appeals Council should have considered the new evidence found and that it would reasonably likely change the outcome. And five, the plaintiff argues that the step four and step five analysis is flawed. As a backdrop, I note that it is plaintiff's burden through step four, under Poupore, to establish limitations that preclude him from working. In this case, the Administrative Law Judge concluded that notwithstanding his conditions, plaintiff

retains the ability to work at all exertional levels subject to certain nonexertional limitations, including that the claimant should not have to read, write, or perform mathematical operations as part of his job duties, the claimant should work at simple routine and repetitive tasks, the claimant should work in a low stress job defined as occasional decisionmaking, occasional judgment required, and occasional changes in the work setting, the claimant should work at goal-oriented work rather than production pace rate work, the claimant should have occasional contact with coworkers, supervisors, and the public. That appears at pages 16 and 17 of the Administrative Transcript. Obviously, pivotal to any determination is an RFC finding which represents a finding of the range of tasks the plaintiff is capable of performing notwithstanding the

impairments in question. When determining the residual functional capacity, or RFC, an Administrative Law Judge must consider all of the relevant medical and other evidence. After doing so, the ALJ must assess the plaintiff's exertional capabilities, as well as nonexertional limitations, including impairments that could result in postural or manipulative limitations. And of course, an RFC determination must be supported by substantial evidence. Plaintiff has indicated he only challenges the medical component of the residual functional capacity and

believes, first, that the plaintiff's triggers of his mental symptoms were not properly considered. The Administrative Law Judge at page 18 relied heavily on plaintiff's robust list of activities of daily living. Especially relevant was his ability to attend church on a regular basis, his ability to take public transportation, the fact that he went to a Super Bowl party where he was around other people. This is a similar case to James N. v. Commissioner of Social Security, 2020 WL 1140498 from the Northern District of New York, 2020, with a very similar set of activities of daily living, and that case was found to support the residual functional capacity. And in that regard, this is a different case than Miller v. Colvin, 122 F. Supp. 3d 23 from the Western District of New York, a case relied on by the plaintiff. The activities of daily living were really fairly mundane. The Court in that

case considered that, generally speaking, activities of daily living include things like cleaning, shopping, cooking, and so forth. In this case, when you are dealing with someone who claims the inability to be around people, it is very relevant, the ability to go to church on a regular basis, to take public transportation, to go a Super Bowl party. So I find that this is more akin to the James N. case than the Miller case. I also note that plaintiff admitted at page 401 that he was looking for work. The Administrative Law Judge also properly relied on

benign mental status exams at page 18, and those are cited in the record at 405 from December 2015, 443 to 444 from March 2017, 449 to 450 from April of 2017, 454 to 455 from May of 2017, 459 to 460 from July of 2017, 464 to 465 from -- if I can read my notes correctly -- September 2017, 469 to 470 September 2017 -- I guess the earlier one was August, I'm sorry -- 474 to 475 from October 2017, 479 to 480 from November of 2017 -- that can't be right -- 489 to 490 from June of 2017, 494 to 495 from August of 2017. She also relied on the fact that plaintiff stated at page 406 that therapy had helped him a great deal. At 454, it appeared that he was doing well on his medications. At 489, he made a statement that I am okay. The reliance on mental status exams is supported by and approved by this Court in Cuenca v. Commissioner of Social Security, 2016 WL 2865726 from the Northern District of New

York, April of 2016, in a report and recommendation by Magistrate Judge William Carter that was approved by Chief Judge Glenn Suddaby at 2016 WL 2858858. The Administrative Law Judge also properly relied on portions of the opinions of Dr. Moore and Dr. Brown. The Administrative Law Judge acknowledged plaintiff's workplace fears and fears of being around people in general when summarizing his contentions at page 17. To some degree, that has been accommodated and taken into consideration in the residual functional capacity, and specifically in the portion

that limited plaintiff to occasional contact with coworkers, supervisors, and the public. Once again, I think it was reasonable to rely on all of these to support the residual functional capacity, which I conclude is supported by substantial evidence. If I were deciding the case, I may or may not have weighed the evidence in the same way the Administrative Law Judge did, but, of course, that is not my function to reweigh the evidence, only to determine whether substantial evidence supports the determination. The next argument concerns the weighing of the opinions of Dr. Moore, for one. Dr. Moore, after examining the plaintiff in October of 2015, made the following medical source statement: The claimant shows mild limitation in regard to following and understanding simple directions and instructions

and performing simple tasks independently. He has moderate limitation in regard to maintaining attention and concentration, moderate to marked limitation regarding learning new tasks and performing complex tasks independently, moderate limitation in regard to appropriately dealing with stress, relating adequately to others, and moderate to marked limitation with regard to making appropriate work decisions and maintaining a regular work schedule. The Administrative Law Judge considered that opinion at page 18 and gave it partial weight. The Administrative Law Judge noted that plaintiff was

examined by Dr. Moore, she acknowledged Dr. Moore's program expertise, and the opinion of Dr. Moore generally supports the RFC with the exception of the work schedule issue. I note that there is no requirement that all of the opinions of a medical source, including Dr. Moore, be accepted or rejected. It's not an all or nothing, it's okay to give partial weight as long as you explain why. In this case, the residual functional capacity limited plaintiff to simple routine repetitive tasks, low stress environment, goal oriented, occasional contact with supervisors and coworkers. These adequately address Dr. Moore's limitations. In Moxham v. Commissioner of Social Security, 2018 WL 1175210 from the Northern District of New York, March of 2018, one of my colleagues, Magistrate Judge Daniel J. Stewart, found similarly, and ironically, the opinion in that case was

also from Dr. Moore who found moderate to marked limitations in dealing with stress, making appropriate work decisions, and maintaining a regular schedule. In that case, Judge Stewart found that the plaintiff had failed to illustrate how those mental limitations were not adequately accounted for in the similar case involving simple tasks, simple instructions, frequent interaction with supervisors, coworkers, and the public, and decisions on simple work-related matters. Similarly, in Brian D. v. Saul, 2020 WL 1187651, a decision from the Northern District of New York in March of 2020

from Senior District Judge Lawrence E. Kahn, he concluded that a statement by another consultative examiner, Dr. Slowik, concerning plaintiff's ability to maintain a regular schedule and appropriately deal with stress, being moderately to markedly limited, was adequately accounted for in an RFC that limited the plaintiff to a low stress job that required occasional decisionmaking, occasional work judgments, and occasional changes in the work setting. I also find that Dr. Moore's opinions concerning marked limitations in scheduling were properly rejected and explained based on the, again, benign exams and the fact that plaintiff did not have a history of missing appointments. I recognize that there are conflicting views on whether or not that's a relevant consideration in this court. The decision in Cook v. Astrue, 2011 WL 2490996 from 2011, suggests that it is a

relevant consideration. I acknowledge that Virden v. Colvin, a decision relied on by the plaintiff, reported at 2015 WL 5598810, takes a different view. And certainly, one can argue that that is the better view, but I nonetheless find that the Administrative Law Judge properly rejected that portion of Dr. Moore's decision. But, once again, even if it should have been considered, it was adequately accommodated by the residual functional capacity. Plaintiff also challenges the treatment of Dr. Brown's opinion, a psychologist that appears in Exhibit 3A. And

Dr. Brown finds moderate limitations in certain areas, including the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, but Dr. Brown, also in his mental RFC finding, concludes that plaintiff retains the ability to meet the four basic demands for unskilled work. That opinion was given partial weight and not heavily relied on, but only because the Administrative Law Judge concluded that the plaintiff's condition was such that he was more limited than reflected in Dr. Brown's opinion that Dr. Brown -- Dr. Brown's opinion does support the residual functional capacity finding. And once again, because the RFC accommodated plaintiff's situation by limiting him to performing within a schedule and maintaining regular attendance, that was an accommodated by the RFC. Again, I cite James N., which is a

case a cited earlier. Turning to the new evidence argument, plaintiff submitted two medical source statements, one from therapist Matthew Scott and the second from Nurse Practitioner Jeannette Lee, as well as additional treatment records. The test for other new materials to be accepted and the matter remanded is that the records for new evidence must show a reasonable probability that it would change the outcome. The Appeals Council in this case found that there was no such probability at page two of the Administrative Transcript and, therefore, denied

review. The opinion of the Appeals Council itself in refusing to make a review based on the new evidence is not a final order which this Court is empowered to review, Cheeseman v. Berryhill, 2018 WL 1033226 from the District of Vermont, February 2018, Lesterhuis v. Colvin, 805 F.3d 83 from the Second Circuit 2015, and Davis v. Colvin, 2016 WL 385183 from the Western District of New York, January 31, 2016. That doesn't mean that the new evidence shouldn't be considered. It is now part of the record and properly considered when evaluating whether the RFC is supported by substantial evidence. In this case, the opinion of Therapist Scott at pages 34 and 35 show a marked limitation in maintaining regular attendance and in performing within a schedule and finds that plaintiff would be off task more than 20 percent and absent

three or more days per month. In her questionnaire, Nurse Practitioner Lee finds only a moderate limitation in the ability to maintain regular attendance and perform activities within a schedule. One could argue that that is not inconsistent with the latter, with the residual functional capacity. But in any event, these are checkbox forms with little or no explanation and most courts find them less useful when not well explained. They're also from two non-acceptable medical sources. The ALJ rejected them and found no marked limitation in these areas. In my view, the new evidence does not alter the

weight of the evidence. It was plaintiff's burden to show that those treatment notes do not support the residual functional capacity and that burden was not met. At step five, the determination at step five was dependent on a residual functional capacity which was supported by substantial evidence. I note, moreover, that based on the vocational expert's testimony, the step four determination by the Administrative Law Judge where the plaintiff bears the burden of proof is supported by substantial evidence. But even alternatively proceeding to step five where the Commissioner does have the burden, I find that the vocational expert's testimony was such that it satisfied the Commissioner's burden of proof. It was an opinion that there's work in the national economy that plaintiff can perform notwithstanding his limitations. It was based on a hypothetical that mirrored the

residual functional capacity and, therefore, the Commissioner met his burden at step five. So in conclusion, I find that the correct legal principles were applied and substantial evidence supports the resulting determination. I will award judgment on the pleadings to the defendant and order dismissal of plaintiff's complaint. Thank you both for excellent presentations. This was an extremely interesting case. I hope you both stay safe in these trying times. Thank you. MR. GORTON: Thank you, your Honor.

MS. STEWART: Thank you, your Honor. (Time noted: 11:43 a.m.)

5 I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, 6 NYRCR, Official U.S. Court Reporter, in and for the United 7 States District Court for the Northern District of New York, DO 8 HEREBY CERTIFY that pursuant to Section 753, Title 28, United 9 States Code, that the foregoing is a true and correct transcrip 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 27th day of August, 2020. % Nannat, F( avanaugh HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR Official U.S. Court Reporter