Congdon v. Saul

• Court: District Court, N.D. New York
• Decided: April 29, 2020
• Docket: 5:19-cv-00432
• Status: Unknown

Opinion

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

KIMBERLY C.,

Plaintiff, Civil Action No. 5:19-CV-0432 (DEP)

ANDREW M. SAUL, Commissioner of Social Security,1

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LACHMAN, GORTON LAW OFFICE PETER A. GORTON, ESQ. P.O. Box 89 1500 East Main Street Endicott, NY 13761-0089

FOR DEFENDANT

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

1 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 U.S.C. ' 405(g). 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, 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 April 22, 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

2 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. ORDERED, as follows: 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: April 29, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x KIMBERLY C., Plaintiff, -v- 5:19-CV-432 ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES April 22, 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: MOLLY CARTER, 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 1 (The Court and counsel present by telephone. Time 2 noted: 11:26 a.m.) 3 THE COURT: All right. Plaintiff has commenced this 4 proceeding pursuant to 42, United States Code, Sections 405(g) 5 and 1383(c)(3) to challenge a determination by the Commissioner 6 of Social Security that plaintiff was not disabled at the

7 relevant times and therefore ineligible for the benefits for 8 which she applied. 9 The background is as follows: The plaintiff was born 10 in July of 1960. She is currently 59 years old. She was 11 52 years of age at the time of the alleged onset of her 12 disability on July 10, 2012. She stands 5'3" in height and 13 weighs at various times between 180 and 195 pounds depending on 14 where in the record you look, an example is Administrative 15 Transcript pages 45 and 354. It's unclear at one time that 16 plaintiff lived in Endicott and another time in East Freetown. 17 She lives alone. She was living with her son, that's at page 18 345. He apparently moved out of state at some point. She also 19 has two small dogs. 20 Plaintiff has a 12th grade education. She attended 21 regular classes while in school. She's right-handed. Plaintiff

22 does not drive or take public transportation, according to page 23 140 of the Administrative Transcript. She apparently gave up 24 her driver's license voluntarily. Plaintiff last worked in July 25 of 2012. Her past relevant work includes as an aide and a 1 Licensed Practical Nurse, or LPN, in nursing home and assisted 2 living settings. 3 Plaintiff suffers from several physical impairments, 4 including irritable bowel syndrome or IBS, GERD, fibromyalgia, 5 cervical degenerative joint and disc disease, herpes, kidney 6 stones, hepatitis C, obesity, hypothyroidism, and at one point

7 in the past Clostridium difficile or commonly referred to as C. 8 diff. The C. diff appears to have occurred in 2012. It was 9 treated with vancomycin and resolved in three months. 10 In terms of her cervical issues, plaintiff underwent 11 magnetic resonance imaging testing, or MRI testing, in May of 12 2015. It appears the results -- at page 370 and 371 of the 13 Administrative Transcript, the findings were summarized in that 14 report. It was referred to -- it showed mutli-level 15 degenerative spondylosis and disc protrusions. It was 16 characterized by plaintiff's rheumatologist, Dr. Bonilla-Trejos, 17 at page 410 as revealing a disc herniation at C5-C6 -- I'm 18 sorry, C6-C7. The actual MRI result is marked degenerative 19 spondylosis and central/right paracentral disc protrusion at 20 that level. 21 Plaintiff mentally suffers from depression, anxiety,

22 anger, and bipolar disorder. In terms of physical, plaintiff 23 has treated with Associated Medical Professionals of Central New 24 York, Dr. Amin El-Hassan for her gastroenterologist issues, and 25 Dr. Biswarup Syam. For rheumatology, she treats at Upstate with 1 Dr. Eduardo Bonilla-Trejos. She also sees at Family Care 2 Network Nurse Practitioner Eleanor Klein. That is where 3 Dr. Douglas Rahner also practices. 4 In terms of addressing her mental needs, she treats 5 at Cortland County Mental Health Clinic where she sees Licensed 6 Clinical Social Worker Helen Haldane weekly. Plaintiff was

7 consultatively examined by Dr. Elke Lorensen on March 13, 2016, 8 and by Dr. Dennis Noia on March 17, 2016. 9 In terms of medication, she has been prescribed 10 several over time. Her IBS has been treated with Amitriptyline 11 and FiberCon. She also has been prescribed Bentyl, 12 Escitalopram, Flonase, Fluticasone -- which I think is the 13 generic of Flonase -- Mobic, Omeprazole, Pravastatin, 14 Vancomycin, Zoloft, Celexa, Lexapro, Wellbutrin, Metformin, 15 Prilosec, and Bupropion. 16 In terms of activities of daily living, plaintiff 17 does cook, does some cleaning, can do laundry, shops. She can 18 dress and groom herself. She bathes. She watches television. 19 Plaintiff apparently smokes daily between a half and one pack of 20 cigarettes per day. She tried at one point to quit using 21 Chantix, but there's an notation on October 25, 2017, at page

22 564 of the Administrative Transcript that she was once again 23 smoking. 24 Procedurally, plaintiff applied for Title II 25 disability insurance benefits on December 31, 2015, and 1 protectively filed for Title XVI Supplemental Security Income 2 benefits on January 6, 2016. In both she alleged a July 10, 3 2012, onset date. At page 139 of the Administrative Transcript, 4 she claims disability based on fibromyalgia, osteoarthritis, 5 chronic back pain, and bipolar disorder and IBS. 6 A hearing was conducted on February 12, 2018, by

7 Administrative Law Judge Melissa Hammock to address plaintiff's 8 applications. On April 3, 2018, ALJ Hammock issued an 9 unfavorable decision. That became a final determination of the 10 agency on February 21, 2019, when her request for review was 11 denied by that body. On April 10, 2019, plaintiff commenced 12 this action, which is timely. 13 In her decision, ALJ Hammock applied the familiar 14 five-step test for determining disability. She first noted that 15 plaintiff's last date of insured status was December 31, 2017. 16 At step one, the ALJ concluded that plaintiff had not engaged in 17 substantial gainful activity since the alleged onset date of 18 July 10, 2012. 19 At step two, she concluded that plaintiff suffers 20 from several severe impairments that impose more than minimal 21 limitation on her ability to perform work functions, including

22 obesity, polyarthritis, fibromyalgia, degenerative joint 23 disease, cervical degenerative disc disease, cervical stenosis, 24 and cervical radiculopathy. 25 At step three, she concluded that plaintiff's 1 conditions did not meet or medically equal any of the listed 2 presumptively disabling conditions set forth in the 3 Commissioner's regulations, specifically considering listings 4 1.04, 1.02, SSR 02-1p when it comes to obesity, and SSR 12-2p 5 used to consider plaintiff's fibromyalgia and the effects of it 6 on her ability to perform work functions.

7 The ALJ next concluded that plaintiff retains the 8 residual functional capacity, or RFC, to perform medium work 9 with exceptions that she can occasionally climb ramps and 10 stairs, never climb ladders, ropes, and scaffolds, she can 11 frequently stoop, and occasionally kneel, crouch, and crawl. 12 She should have no exposure to unprotected heights and can 13 occasionally reach overhead and frequently reach in all other 14 directions. 15 Applying that residual functional capacity at step 16 four, the Administrative Law Judge concluded that plaintiff is 17 capable of performing her past relevant work as an LPN and 18 nurse's aide. 19 As an alternative basis for finding no disability, 20 the Administrative Law Judge proceeded to step five and found 21 that if plaintiff were capable of performing a full range of

22 medium work, the Medical-Vocational Guidelines, or Grids, and 23 specifically Grid Rules 203.22 and 203.15, would direct a 24 finding of no disability. She went on, however, based on the 25 testimony of the vocational expert to find that plaintiff was 1 capable, notwithstanding her limitations, of performing as an 2 office helper, a ticket taker, and a mail clerk, and that there 3 was a sufficient number of jobs in the national economy in those 4 categories and therefore found that plaintiff was not disabled. 5 As you know, my task is limited. The standard that I 6 apply is highly deferential. I must determine whether the

7 correct legal principles were applied and the resulting 8 determination was supported by substantial evidence, substantial 9 evidence being defined as such relevant evidence as a reasonable 10 mind might accept as adequate to support a conclusion. As the 11 Second Circuit Court of Appeals noted in Brault v. Social 12 Security Administration, 683 F.3d 443, from 2012, it is an 13 extremely stringent standard, even more strict than the clearly 14 erroneous standard. Under the prevailing test and standard, 15 once an ALJ finds facts, according to Brault, it can be rejected 16 only if a reasonable factfinder would have to conclude 17 otherwise. 18 The plaintiff in her challenge raises relevant 19 contentions. At step two, she challenges the failure to find 20 IBS, incontinence, and urinary urgency as severe, and the 21 failure to make specific findings in that regard. She also

22 challenges the rejection of Dr. Douglas Rahner's opinion 23 contending that he qualifies as a treating source. Plaintiff 24 challenges the residual functional capacity finding and 25 specifically the failure to account for plaintiff's diarrhea and 1 incontinence and need for access to a bathroom. She also 2 challenges the finding that she is capable of performing medium 3 work is not supported by any medical opinion. She challenges 4 the failure to assess work pace and attendance, and contends 5 that the Administrative Law Judge's determinations at step four 6 and five are infected by those errors.

7 As a backdrop, I note when examining plaintiff's 8 arguments, I have to bear in mind that it is her burden through 9 step four to establish her conditions and, importantly, the 10 limitations that those conditions present on her ability to 11 perform work functions. Turning first to the step two argument, 12 the governing regulations provide that an impairment or 13 combination of impairments is not severe if it does not 14 significantly limit a plaintiff's physical or mental ability to 15 do basic work activities. That is from 20 C.F.R. Section 16 404.1521(a). 17 It is true that this is a modest test at step two. 18 It is considered as, quote, de minimis and the step two analysis 19 is intended only to screen out the truly weakest of cases, Dixon 20 v. Shalala, 54 F.3d 1019, from the Second Circuit, 1995. It is 21 also true, however, that the mere presence of a disease or

22 impairment that has been diagnosed is not by itself sufficient 23 to establish a condition as severe, Coleman v. Shalala, 895 F. 24 Supp. 50, from the Southern District of New York, 1995. In this 25 case, it is, as I indicated previously, plaintiff's burden to 1 establish at step two that a condition is severe. And as I just 2 noted, the mere diagnosis alone of IBS, for example, does not 3 necessarily mean that it qualifies as severe. 4 I also note that if the Administrative Law Judge 5 proceeds and does find other conditions severe and proceeds 6 through the five-step analysis, any error is harmless, provided

7 that any limitations presented by nonsevere impairments are 8 considered when formulating the residual functional capacity. 9 In this case, in terms of the IBS, I find no failure to consider 10 that as severe. Plaintiff did not carry her burden of 11 establishing the limitations associated with that. 12 I note that the C. diff -- I won't call it a red 13 herring, but the C. diff clearly was a serious impairment, but 14 it only lasted three months in 2012 and was resolved in October 15 of 2012. I don't see any further indication that there are 16 additional C. diff flare ups. Plaintiff did not undergo any 17 treatment for IBS in October 2012, when her C. diff was 18 resolved, until January 2015 and she infrequently complained. A 19 colonoscopy that was conducted in March of 2013 showed only 20 quiescent colitis, that's at page 209 and 210 of the 21 Administrative Transcript. As the Administrative Law Judge

22 indicated, it appears that medication and diet have controlled 23 the plaintiff's IBS. I also note that the plaintiff either 24 denied symptoms altogether or failed to mention symptoms to 25 Nurse Practitioner Klein on multiple occasions, including in 1 December 2015, April 2016, November 2016, May 2017, July 2017, 2 August 2017, and November 2017. 3 Turning to the urinary issues, there appear to be, 4 really, very few complaints, again, or denial or failure to 5 mention on multiple occasions to Nurse Practitioner Klein, only 6 brief periods of treatment and testing that resulted in normal

7 results, a stable bladder, and no flow obstruction. 8 In terms of GERD, it appears from the medical records 9 that that condition was well controlled through medication and 10 there's little other treatment. There's no proof in the record 11 of any limitations presented by GERD on plaintiff's ability to 12 perform basic work functions. And once again, there's a 13 significant number of denials of symptoms or failure to mention 14 GERD symptoms. So in sum, I find that the rejection at step two 15 of those three conditions as severe is supported. 16 Turning to the treating source argument, there's no 17 question that the opinion of a treating source regarding the 18 nature and severity of an impairment is entitled to considerable 19 deference, of course provided that it is supported by medically 20 acceptable clinical and laboratory diagnostic techniques and is 21 not consistent with other substantial evidence. In one of the

22 principal cases addressing this issue, the Second Circuit noted 23 that in Burgess v. Astrue, 537 F.3d 117, Second Circuit, 2008. 24 Under the regulations that were in effect at the 25 relevant times, specifically 20 C.F.R. Sections 404.1527 and 1 416.927, the medical opinions of a treating source are generally 2 entitled to controlling weight unless contradicted by other 3 substantial evidence. When treating source opinions are not 4 given controlling weight, then the Administrative Law Judge must 5 consider the so-called Burgess factors and indicate what weight 6 it is given.

7 The term treating source is defined in 20 C.F.R. 8 Section 404.1527(a)(2) as follows: Treating source means your 9 own acceptable medical source who provides you, or has provided 10 you, with medical treatment or evaluation and who has, or has 11 had, an ongoing treatment relationship with you. Generally, we 12 will consider that you have an ongoing treatment relationship 13 with an acceptable medical source when the medical evidence 14 establishes that you see, or have seen, the source with the 15 frequency consistent with accepted medical practice for the type 16 of treatment and/or evaluation required for your medical 17 condition. 18 In this case, I find that the ALJ's rejection of Dr. 19 Rahner as a treating source is supported by substantial 20 evidence. I carefully reviewed the medical records associated 21 with plaintiff's treatment with Nurse Practitioner Klein at

22 Family Health Network and could not find that Dr. Rahner is 23 mentioned as having any sort of personal treating relationship 24 with the plaintiff. I also note that, in any event, his 25 opinions were also properly discounted as being inconsistent 1 with the record, and in particular, Dr. Lorensen's opinions. 2 Turning to the residual functional capacity argument, 3 obviously we know that an RFC is defined as the most that a 4 plaintiff can do consistent with her impairments at issue, 20 5 C.F.R. Sections 404.1545 and 416.945. An RFC has to be informed 6 by consideration of all relevant and medical and other evidence,

7 Tankisi v. Commissioner of Social Security, 521 F. App'x 29, 8 from the Second Circuit, 2013. To properly ascertain a 9 claimant's RFC, an ALJ must assess plaintiff's exertional 10 capacities and also her, you know, capabilities and 11 nonexertional limitations, as well. 12 In this case, the ALJ must review the record in its 13 entirety to assess the RFC. In this case, the RFC is well 14 supported by Dr. Lorensen's opinions, not only the medical 15 source portion of Dr. Lorensen's report, but also the extremely 16 benign findings of Dr. Lorensen and other practitioners, 17 including Nurse Practitioner Klein and the conservative 18 treatment that plaintiff was prescribed. 19 The issue really is the impact on plaintiff's ability 20 to work. The IBS gave me pause. I know that plaintiff has 21 cited some fairly compelling cases, Lowe v. Colvin, 2016 WL

22 624922, that was from the Western District of New York, 2016, a 23 case in which Mr. Gorton also represented the plaintiff. And 24 Judge Telesca, who unfortunately recently passed away, 25 criticized the Administrative Law Judge for failing to make 1 specific findings regarding the frequency and length of 2 anticipated bathroom breaks. The plaintiff also cites Spaulding 3 v. Astrue, 702 F. Supp. 2d 983, from the Northern District of 4 Illinois, with a similar holding that the ALJ erred by not 5 articulating findings concerning the need for bathroom breaks. 6 However, in this case, I think it is distinguishable

7 because plaintiff's IBS was not found by the Administrative Law 8 Judge to be severe. The lack of any need in the RFC to limit 9 plaintiff's -- to specify plaintiff's access to bathrooms is 10 supported by substantial evidence. Plaintiff's IBS has waned 11 and waxed, but appears to be relatively under control. There 12 was no treatment of the IBS from 2013 until 2015. The evidence 13 indicates that plaintiff's medications helped, including at page 14 303 of the Administrative Transcript, a notation from 15 February 5, 2016. 16 As I indicated before, there are multiple indications 17 of plaintiff's denying -- specifically denying IBS, including 18 381 and 391 of the Administrative Transcript. There are also 19 denials of symptoms to Dr. Bonilla-Trejos in December 2015, 20 April 2016, November 2017, no mention of symptoms in 21 February 2016, and August 2016, no specific treatment. And it

22 appears that almost all of the references to the severity of the 23 IBS, including, for example, having to go ten times per day, 24 that occurred in March of 2013, most all of those are in the 25 distant past and the more recent medical records don't reflect 1 the ongoing issue with regard to IBS, so I think this is a very 2 different case than Lowe and Spaulding. 3 Turning to the residual functional capacity and the 4 exertional requirements, I agree with the Commissioner that a 5 medical opinion is not always required to support an RFC. In 6 this case, however, the medium exertional requirement is, I

7 believe, supported by Dr. Lorensen's opinion. And in any event, 8 any error in that regard would be harmless because, as the 9 Commissioner pointed out at step five, a determination was made 10 that plaintiff is capable of performing work in the national 11 economy falling in the light category. 12 Again, I agreed that little weight was properly given 13 to Dr. Rahner's opinion when it comes to absenteeism and off 14 task, though I think the medical record as a whole and Dr. 15 Lorensen's opinions with no mention of any limitations on 16 schedule support the residual functional capacity. 17 So I do find no error in the residual functional 18 capacity, no error at step four where plaintiff remains to carry 19 the burden, there's no evidence that plaintiff is not able to 20 work in healthcare, the C. diff resolved itself in 2012 and 21 2013, and, again, if there is error at step four, it is harmless

22 because at step five, based on the vocational expert's 23 testimony, there is work in the national economy that plaintiff 24 is capable of performing. 25 So in conclusion, I find that the determination 1 resulted from the application of proper legal principles and is 2 supported by substantial evidence, so I will grant judgment on 3 the pleadings to the defendant and dismiss plaintiff's 4 complaint. 5 Thank you both for excellent presentations. I 6 enjoyed working with you. Stay safe.

7 MR. GORTON: Thank you, your Honor. 8 MR. CARTER: Thank you, your Honor. 9 (Time noted: 11:55 a.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22

23 24 25 2 CERTIFICATE OF OFFICIAL REPORTER 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 10 of the stenographically reported proceedings held in the 11 above-entitled matter and that the transcript page format is in 12 conformance with the regulations of the Judicial Conference of 13 ]| the United States. 14 15 Dated this 27th day of April, 2020. 16 17 x Nannate F( avasagh 18 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR 19 Official U.S. Court Reporter 20 21 22 23 24 25