Criscitello v. Kijakazi

Opinion

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

JEANINNE C.,

Plaintiff, v. Civil Action No. 3:19-CV-1176 (DEP)

ANDREW M. SAUL, Commissioner of Social Security,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

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

FOR DEFENDANT

HON. ANTOINETTE L. BACON LISA SMOLLER, ESQ. Acting United States Attorney Special Assistant U.S. Attorney Northern District of New York P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198

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, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-

motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on December 16, 2020, during a telephone conference held 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 did not result from the application of proper legal principles and is not 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, a transcript of which is attached and incorporated herein by

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

disabled at the relevant times, and thus is not entitled to benefits under the

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. Social Security Act, is VACATED. 3) The matter is hereby REMANDED to the Commissioner, without a directed finding of disability, for further proceedings consistent with this determination. 4) The clerk is respectfully directed to enter judgment, based

upon this determination, remanding the matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case.

hu. Alta David E. Peebles U.S. Magistrate Judge Dated: December 18, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x JEANINNE C.,

Plaintiff,

vs. 3:19-CV-1176

ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on December 16, 2020, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding. A P P E A R A N C E S (By Telephone) For Plaintiff: LACHMAN & GORTON Attorneys at Law 1500 East Main St. P.O. Box 89 Endicott, New York 13761-0089 BY: PETER A. GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel J.F.K. Federal Building Room 625 Boston, Massachusetts 02203 BY: LISA SMOLLER, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (The Court and all counsel present by telephone.) THE COURT: Thank you. Let me begin by thanking both counsel for excellent presentations. I enjoyed working with you and found this to be an interesting case as usual. The plaintiff has commenced this proceeding pursuant to 42 United States Code Sections 405(g) and 1383(c)(3) to challenge an adverse determination by the Commissioner of Social Security finding that she was not disabled at the relevant times and therefore ineligible for the benefits sought. And Counsel, will you make sure that you muted your phones, we're getting a little feedback. The background is as follows: Plaintiff was born in January of 1961 and is currently 59 years of age. Plaintiff was 53 years old at the alleged onset of her disability in August of 2014. Plaintiff stands 5 foot, between 4 and 6 inches, depending upon the reference in the record, in height, she weighs 120 to 125 pounds. Plaintiff lives in Binghamton, New York with her disabled husband. On occasion a stepson, who has been in and out of jail, lives with them at some point and has been a cause of considerable stress for the plaintiff according to her treatment records. Plaintiff has a 12th grade education and was in regular classes while in school. Plaintiff is right-handed. Plaintiff drives occasionally. She does not use public transportation as it apparently is not available to her. Plaintiff has worked as a floral designer and a nursery laborer in two different positions and she worked in one or both of those positions between 1999 and 2014. She was laid off on August 8, 2014 according to page 171 of the administrative transcript. Physically, plaintiff suffers from lupus and specifically discoid, I will spell this and not pronounce it, erythematosus, discoid lupus erythematosus, or DLE for short. She also suffers from skin lesions that are related to the lupus apparently. They're referred to as neurotic excoriations. She experiences low back pain and degenerative disk changes and right shoulder pain. Mentally, plaintiff suffers from considerable anxiety and depression. She has a bedbug phobia, she has a phobia about her neurotic excoriations. She did not undergo any psychiatric hospitalization for her mental conditions. Plaintiff's primary care provider is FNP Ashley Dudden who she has seen for five years. She has also seen a rheumatologist, Dr. Paul Dura, on one occasion, June 14, 2017, reference is at page 516, and the statement was made, "I need a rheumatologist because I am applying for disability." She also has seen Physician's Assistant Aspen D'Angelo on January 15, 2018 and February 23, 2018. Plaintiff counsels biweekly with Licensed Clinical Social Worker, LCSW, Virginia Wetherbee who works with Catholic Charities. Plaintiff has counseled with Therapist Wetherbee for five years. Plaintiff has been provided or prescribed various medications including Celebrex, tizanidine as needed for sleep, citalopram, alprazolam, hydroxyzine, buspirone for anger, Xanax, mupirocin ointment and various allergy medications, and ibuprofen. Plaintiff has a fairly significant range of activities of daily living according to her hearing testimony and pages 484 and 490 of the administrative transcript. Plaintiff is able to dress. She showers twice weekly, she can cook, vacuum, sweep, mop, do laundry, do yardwork, garden, watch television, walk dogs, occasionally baby-sit for grandchildren who were 11 months and two years of age at the time of the hearing in this matter. She reads, crochets, socializes, and shops, although only at night because of her concern over her excoriations. Plaintiff smokes and has since 18, approximately one-half pack of cigarettes per day. The record is equivocal as to whether she continues to use marijuana. At one point she was using marijuana approximately one time per month, according to page 483, report to Dr. Slowik, but at 490, it's indicated that she quit smoking marijuana in 1998, and at page 188, she claimed to have stopped using marijuana five years ago. Procedurally, plaintiff applied for Title II and Title XVI benefits protectively under the Social Security Act on July 14, 2015 alleging an onset date of August 8, 2014, claiming disability based upon lupus, open sores all over her body, and depression. A hearing was conducted on April 11, 2018 to address plaintiff's claim for benefits by Administrative Law Judge Elizabeth Koennecke. Hopefully I pronounced that right, with Mr. Gorton's assistance. MR. GORTON: You did, Judge. I had to take it off mute to tell you that you did. THE COURT: Well, and for Ms. Smoller's benefit, Mr. Gorton corrected me on a prior occasion, politely, on the pronunciation. On August 20, 2018, a supplemental hearing was conducted by the administrative law judge with a vocational expert testifying on that occasion. On September 21, 2018, ALJ Koennecke issued a decision unfavorable to the plaintiff. That became a final determination of the agency on August 12, 2019, when the Social Security Administration Appeals Council denied plaintiff's request for review. This action was commenced on September 23, 2019, and is timely. In her decision, ALJ Koennecke applied the familiar five-step sequential test for determining disability. At step one, she determined that plaintiff had not engaged in substantial gainful activity since August 8, 2014. She did note prior to that that plaintiff was insured through December 31, 2018. At step two, the ALJ concluded that plaintiff does suffer from severe impairments that impose more than minimal limitation on her ability to perform work functions, including lupus and all mental impairments as variously characterized (including an affective disorder, unspecified depressive disorder). 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, specifically considering Listing 14.02 related to lupus, as well as 12.04 and 12.06 related to her mental impairments. After surveying the record evidence, ALJ Koennecke concluded that plaintiff retains the residual functional capacity to perform medium work with limitations that are both physical and nonexertional in nature. At step four, ALJ Koennecke concluded that plaintiff cannot perform her past relevant work as a floral arranger/designer. At step five, she first noted that if plaintiff was capable of performing a full range of medium work, a finding of no disability would be directed by the Medical-Vocational Guidelines set forth in the regulations, and specifically Grid Rule 203.22. With the assistance of a vocational expert and a hypothetical that included the exertional and nonexertional limitations of the residual functional capacity finding, the administrative law judge concluded that plaintiff is capable, notwithstanding her impairments, of performing work available in the national economy as an industrial cleaner, a hospital food service worker, and an order caller, therefore, was not disabled at the relevant times. The court's function, as you know, is to determine whether correct legal principles were applied and the resulting determination is supported by substantial evidence. The test which the court applies is extremely deferential. To overcome the substantial evidence test, as the Second Circuit noted in Brault v. Social Security Administration Commissioner, 683 F.3d 443 from 2012, the plaintiff must meet a standard which is even more rigid and exacting than the clearly erroneous standard which we're familiar with. 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 parenthetically in Brault that under this standard, once an ALJ has found a fact, that fact can be rejected only if a reasonable fact finder would have to conclude otherwise. In this case, the focus of plaintiff's challenge is on her ability to maintain a schedule and stay on task. There's no claim directly emanating from plaintiff's lupus, except to the extent that it exacerbates her psychological issues, including with respect to the excoriations, the neurotic excoriations which she experiences and the effect of those on her psychological question -- status. So plaintiff specifically argues that the finding that plaintiff can meet attendance and stress requirements of work on a continuing basis is not supported. As a subset, the plaintiff challenges the rejection of undisputed medical opinions concerning her ability to maintain a schedule and attendance. She challenges the weighing of medical opinions and claims that the administrative law judge substituted her lay opinion for medical opinions, and that the administrative law judge placed undue reliance on the agency psychologist's opinions. The sum total of these, plaintiff argues, infected the step five determination at which the plaintiff of course -- the Commissioner, I'm sorry, bears the burden of proof. The first task of course of the administrative law judge is to determine plaintiff's residual functional capacity, which represents the range of work that the plaintiff is capable of performing, notwithstanding her limitations. In this case, she was found to be capable of performing medium work which is defined under 20 C.F.R. Section 404.1567 as involving lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. The regulation goes on to state that if someone can do medium work, would determine that he or she can do sedentary and light work. The part -- of course the residual functional capacity, like all other determinations made by the administrative law judge, must be supported by substantial evidence. The crux of this case really stems from the statement included in the residual functional capacity finding on page 15 of the administrative transcript that plaintiff is capable of regularly attending to a routine and maintaining a schedule. Plaintiff of course, as I indicated, challenges that determination. There are many -- or several, I should say, medical opinions in the record. This case is governed by the regulations that were in effect at the time this application was filed, prior to March of 2017. The method or means of weighing medical opinions both of acceptable medical sources that are treating sources and others is governed by 20 C.F.R. Section 404.1527(c). The importance of considering the factors that are laid out in that regulation has been stressed on many occasions by the Second Circuit Court of Appeals, most recently in Drake v. Saul, two to one which was interesting because I hadn't seen a dissent in a summary order, but that was a case that was handed down earlier this -- last week, I guess, and it's found at 2020 WL 7294561, a case that I know Mr. Gorton's familiar with. In this case, the medical opinions are several, and let me go through them briefly. As we have discussed, the agency nonexamining psychologist, A. Chapman, rendered a decision -- rendered an opinion on November 18, 2015. It was given great weight by ALJ Koennecke at page 20. The opinion appears at Exhibit 1A through 2A and 192 to 209. It indicates in the worksheet that plaintiff has a moderate limitation in the ability to perform activities within a schedule and to maintain regular attendance, that's page 197. In the mental residual functional capacity finding at page 198, however, Dr. Chapman notes that based on evidence in file, claimant retains capacity to perform the four basic demands of unskilled work on a sustained basis. Significantly, as we discussed, if he is unclear what records Dr. Chapman had available, there is a statement that plaintiff -- to the effect on page 198 that plaintiff is in current treatment but no records obtained. Obviously none of the treatment records that postdate November 18, 2015 could have been reviewed by Dr. Chapman. It's unclear whether Dr. Chapman had any records from Therapist Wetherbee. On page 194 it appears that Catholic Charities records were requested on two occasions, but there isn't any indication of them having been received. The second opinion in the record is from a consultative examiner, Dr. Amanda Slowik. It appears at page 482 to 487 of the administrative transcript. The opinion was discussed by ALJ Koennecke and given partial weight at pages 19 and 20 of her decision. Significantly, Dr. Slowik indicates that plaintiff's ability to maintain a regular schedule and appropriately deal with stress is moderately to markedly limited. The administrative law judge, in discussing that, rejected it, stating that the limitation is not well supported by the clinical evidence showing that the claimant generally presents as alert and with appropriate mood and affect. The third opinion, medical opinion, comes from FNP Ashley Dudden, the treatment provider, general treatment provider for the plaintiff, and FNP Dudden issued an opinion on 606 through 60 -- I'm sorry, 605 to 606. It is dated March 16, 2018. She opines that plaintiff would be off task 10 percent or less, but that she would be absent two to three days per month. That's at page 606. The opinion is given little weight at page 18 of the administrative transcript. The nurse practitioner was asked to update the opinions and she rendered a second opinion on June 29, 2018. It appears at 703, 705, indicates that plaintiff's condition is about the same as it was in March, indicates that she would be off task 10 percent or less but she would experience fatigue and again opined that she would be absent two to three days per month. The next opinion comes from Therapist Wetherbee on March 15, 2018. It appears at 630 to 631 of the administrative transcript. It was given partial weight by ALJ Koennecke at 18 to 19. It indicates that plaintiff has a marked limitation in maintaining regular attendance without interruptions from psychological-based symptoms and markedly limited in performing activities within a schedule, being punctual and performing at a consistent pace. And it also indicates that she would be absent three or more days per month. There is explanation given on page 2 saying that it is not the prototypical check-the-box form that contains no explanation whatsoever. Therapist Wetherbee on June 25, 2018 stated at page 667 that plaintiff's condition had worsened between March and June and that -- explained that Jeaninne's depression has worsened partly due to increased stress, tension, and financial burdens in her household related to her troubled, disrespectful stepson recently released from jail, living with her and her husband. Jeaninne feels powerless over the situation and not able to have control of her own household and environment, continues -- contributes to increased physical symptoms also. And there are attached to that some treatment records from Therapist Wetherbee. Physician's Assistant D'Angelo issued an opinion on March 16, 2018. The focus appears to be on the discoid lupus and lumbar degenerative disk disease/low back pain. It appears at 634 to 635. At page 19 it was given great weight. It indicates that plaintiff would be off task 10 percent or less and that there would not be any good or bad days. There was no opinion given concerning absenteeism. And lastly, Dr. Gilbert Jenouri issued an opinion after conducting an internal medicine examination of the plaintiff that appears at 489 to 492. That was given great weight at page 19 by Administrative Law Judge Koennecke. It indicated in the medical source conclusion that plaintiff experiences minimal restriction in walking, standing, sitting long periods, bending, stair climbing, lifting, and carrying. No mention of getting off task or absent, nor is there any indication that he was asked to give opinions on that issue. The threshold opinion, or issue really is absenteeism and off task. The vocational expert made it clear that more than one unexcused or unexpected absence per month would render the plaintiff unemployable. One of the things that the administrative law judge did in rejecting areas of the opinions concerning absenteeism is to rely on activities of daily living. And this is the type of case where the activities of daily living don't necessarily translate well into the ability to perform work on a sustained basis five days a week, eight hours a day, and the administrative law judge really didn't explain how that is inconsistent with plaintiff's fear of going out in public because of her excoriations and her fear of bedbugs and so forth. And so I agree with the plaintiff that in this case, the activities of daily living really don't bear much relationship to the mental demands of regular work and I agree that this case, that on that issue, is informed by such decisions as Coyle v. Commissioner of Social Security, 2018 WL 3559073 from the Northern District of New York, July 24, 2018, and McGregor v. Astrue, 993 F.Supp.2d 130 from July 2012, again the Northern District of New York, although I agree that consideration of activities of daily living is certainly a factor. When you apply the 1527(c) factors to the various opinions that address specifically absenteeism, you find, for example, that Dr. Slowik found a moderate to marked limitation in the ability to maintain a regular schedule which is clearly inconsistent with the statement in the residual functional capacity finding that plaintiff is able to regularly attend to routine and maintain a schedule, it's not supported. The plaintiff was examined by Dr. Slowik, she explained her conclusions. Her conclusions are consistent with exam findings, they're consistent with plaintiff's treatment notes although I recognize, as plaintiff has argued, or acknowledged, there are good days and bad days and this is reflected as well in the treatment notes. And Dr. Slowik of course has programmatic expertise. When it comes to Therapist Wetherbee and her opinions, her treatment notes detail subjective findings, but as the Second Circuit noted in Stacey v. Commissioner of Social Security, 799 F.App'x 7, it appears that -- that the -- from 2020, Second Circuit, it is important, particularly in cases involving such things as headaches and mental conditions, the subjective -- the patient's subjective description of his or her symptoms as applied based on the expertise of the examiner is an important consideration. The activities of daily living, I've already talked about why in the court's view maybe they do not necessarily translate well into a basis to reject the opinions concerning attendance. I note that the opinions about attendance are well supported by various things, including but not limited to canceled appointments and missed appointments that plaintiff has had which support the notion that on occasion she is fearful of going out in public, particularly given her excoriations. And it's also important to note that in mental health cases, often conditions are cyclical or fluctuating and so cherrypicking good notes and overlooking the times when plaintiff appears with severe anxiety is inappropriate. Flynn v. Commissioner of Social Security, 729 F.App'x 119 from the Second Circuit Court of Appeals 2018. When you apply the 1527(c) factors to Therapist Wetherbee's opinions, you find there is a long-standing treatment relationship, unlike Dr. Dura, for example, or the Physician's Assistant Aspen D'Angelo. She has examined plaintiff on many, many occasions. She explained the basis of her opinions at page 631. Her opinions are consistent with treatment records, and they're consistent with the opinions of Consultative Examiner Dr. Slowik, and even in part Dr. Chapman who did find a moderate limitation in the ability to perform based on a schedule. In my view, the administrative law judge improperly discounted the therapist's opinions. FNP Dudden appears to be focused on plaintiff's physical limitations and there isn't any basis, and plaintiff has not argued, that the physical impairment that she suffers cause her to be absent or off task other than as it relates to and exacerbates her mental conditions. And again, if you examine Dr. Chapman utilizing his opinions, or her, utilizing the 1527(c) factors that he did, he or she did not examine the plaintiff, was not a treating source, and that's especially important in a mental health case where a treating source who has seen a plaintiff over a longitudinal period has a better understanding of the ebbs and flows of his or her condition and the extent of her condition. And certainly Dr. Chapman did not have available any treatment records after November 2015. There's really little or no explanation given by Dr. Chapman as to the extent of the limitation on the ability to perform activities within a schedule. I know that one of the cases cited by the plaintiff, and I agree, Milner v. Berryhill, 2018 WL 461095 from the District of New Mexico, 2018, Magistrate Judge Gregory Fouratt went through an exhaustive analysis of what an agency physician is supposed to do when formulating residual functional capacity after completing a worksheet. The -- Dr. Chapman did not do that in his or her opinion. The -- in conclusion, although I know it's not the court's function to reweigh competing medical source statements, I don't believe there are any competing medical source statements. I believe that the administrative law judge erred in concluding that plaintiff is capable of performing work on sustained basis and maintaining regular schedule. The residual functional capacity finding is flawed and the step five determination, therefore, which hinges on the residual functional capacity finding, is also flawed. I don't find any persuasive proof of disability, and so I'm going to grant judgment on the pleadings to the plaintiff without a directed finding of disability and remand the matter for further careful consideration of the medical evidence in the record. I will also note for the purposes of any contemplated Equal Access to Justice Act application that in the face of such an application, having reviewed this matter carefully, I would find that the government's position in this matter was substantially justified and the government has carried its burden to that effect. Thank you both for excellent presentations, please stay safe. MS. SMOLLER: Thank you. MR. GORTON: Thank you, your Honor. (Proceedings Adjourned, 2:17 p.m.) I, JODI L. HIBBARD, RPR, CRR, CSR, 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. Dated this 17th day of December, 2020. /S/ JODI L. HIBBARD

JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter