Davis v. Commissioner of Social Security

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________ BERTHEA V. D., Plaintiff, v. 5:18-CV-979(TWD) COMMISSIONER OF SOCIAL SECURITY, Defendant. ______________________________________________ APPEARANCES: OF COUNSEL: OLINSKY LAW GROUP HOWARD D. OLINSKY, ESQ. For Plaintiff EDWARD A. WICKLUND, ESQ. 250 South Clinton Street, Suite 210 Syracuse, NY 13202 HON. GRANT JAQUITH LUCY WEILBRENNER, ESQ. United States Attorney Special Assistant For Defendant 100 S. Clinton St. PO Box 7198 Syracuse, NY 13261-7198 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER Presently 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), are cross-motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on January 16, 2020, during a telephone conference at which a court reporter was 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. present. At the close of argument I issued a bench decision in which, after applying the requisite deferential review standard, I found the Commissioner’s determination resulted from the application of proper legal principles and was supported by substantial evidence, and I provided further detail regarding my reasoning and addressing the specific issues raised by the Plaintiff in her 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 in its entirety by reference herein, it is hereby, ORDERED, as follows: (1) Defendant’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 Social Security Act, is AFFIRMED; and (3) The Clerk is directed to enter judgment, based upon this determination, dismissing Plaintiff's complaint in its entirety. SO ORDERED.

Dated: January 22, 2020 Syracuse, New York ‘ Ma Therese Wiley Dancks United States Magistrate Judge

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x BERTHEA VICTORIA D.,

Plaintiff,

vs. 5:18-CV-979

COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on January 16, 2020, at the James Hanley Federal Building, 100 South Clinton Street, Syracuse, New York, the HONORABLE THÉRÈSE WILEY DANCKS, United States Magistrate Judge, Presiding. A P P E A R A N C E S (By Telephone) For Plaintiff: OLINSKY LAW OFFICE Attorneys at Law 250 S. Clinton Street Syracuse, New York 13202 BY: EDWARD WICKLUND, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of the General Counsel 15 Sudbury Street Suite 625 Boston, Massachusetts 02203 BY: LUCY WEILBRENNER, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 (In Chambers, Counsel present by telephone.) THE COURT: So to begin, I have before me a request for judicial review of an adverse determination by the Acting Commissioner under 42 United States Code Section 405(g). The background is as follows: Plaintiff was born in 1962 and is currently 57 years old. She was 48 years old at the alleged onset date of disability of September 14, 2010. She has a high school education and is a certified nurse assistant. She last engaged in substantial gainful activity on December 18, 2013, thus she must be found to be under a disability since that date to be eligible for benefits. Her past jobs have included home health aide and hotel housekeeper. In her application for benefits, she indicated she suffers from human immunodeficiency virus, or HIV, degenerative disk disease, lupus, and anxiety. Procedurally, for purposes of this matter, the plaintiff filed for Title XVI benefits on December 18, 2013. As noted, she alleged an onset date of disability beginning September 14, 2010. An earlier hearing was held on August 24, 2015 which resulted in an unfavorable decision and the Appeals Council denied review. An appeal to the District Court ensued and the case was ultimately remanded. Thereafter, a further hearing was conducted by Administrative Law Judge Jeremy Eldred on March 5, 2018, wherein the plaintiff testified, as did a vocational expert. ALJ Eldred issued a decision on June 14, 2018, finding that plaintiff was not disabled at the relevant times. This became the final determination of the Social Security Administration since plaintiff bypassed written exceptions and the Appeals Council did not assume jurisdiction. This timely District Court action followed. In this case, ALJ Eldred applied the requisite five-step sequential test for determining disability. At step one, he found plaintiff had not engaged in substantial gainful activity since December 18, 2013, as noted above. At step two, he concluded plaintiff suffers from the severe conditions of degenerative disk disease of the cervical and lumbar spines, degenerative joint disease of the shoulders, HIV, discoid lupus erythematosus, herpes zoster ophthalmicus, residual complications of a total abdominal hysterectomy, and a history of polysubstance abuse. At step three, the ALJ concluded that plaintiff's conditions do not meet or medically equal any of the listed presumptively disabling conditions. Then after review of the record evidence, the ALJ determined plaintiff is capable of performing medium work with additional limitations. At step four, the ALJ concluded the plaintiff had no past relevant work, and at step five the ALJ applied the the Medical-Vocational Guidelines, or the Grids, finding that her nonexertional limitations did not have a significant impact on the occupational base across all exertional levels, including the medium occupational base, and he concluded therefore that plaintiff was not disabled. As relevant to the time period in question, plaintiff treated with Syracuse Community Health Center, mainly with Dr. Howard and Dr. Awayda. She continued treatment with Dr. Howard when he moved to a different practice. The plaintiff was also treated at Upstate University Hospital, including in their emergency, surgical specialties, physical therapy, and vision care departments. She was also treated at St. Joseph's Hospital, Crouse Hospital and its chemical dependency treatment services, and Correctional Care Solutions. She also sought treatment through the Onondaga County Department of Social Services for mental health and substance abuse issues. She had a consultative medical exam with Dr. Ganesh in February 2014, and a consultative psychiatric exam with Dr. Fisher that same day. At the request of ALJ Eldred, a record review was conducted by Dr. Chandrasekhar whose April of 2018 report was proffered to plaintiff's counsel for review and comment but no response was received. I've reviewed the record carefully and in light of the arguments of counsel and what counsel have presented in their briefs, I've applied the requisite deferential standard which requires me to determine whether proper legal principles were applied and whether the result is supported by substantial evidence. I'll turn first to the ALJ's determination of plaintiff's residual functional capacity, or RFC. Plaintiff argues that the ALJ improperly analyzed the opinion evidence. Specifically, plaintiff argues the ALJ failed to weigh or provide a proper analysis regarding the opinions of treating physicians Drs. Howard and Awayda. Plaintiff also argues the ALJ failed to follow the treating physician rule. I have done a thorough and searching review of the record and find that the ALJ properly assessed the medical and nonmedical evidence and the RFC is supported by substantial evidence. The ALJ discussed the medical evidence and other evidence of record, formulated the RFC based upon an assessment of all medical and nonmedical evidence as a whole for the relevant time period, and explained his analysis in arriving at the RFC. The ALJ also followed the terms of the District Court's remand. The ALJ's decision shows he considered treatment records for the relevant time period as well as the opinions of record. He noted the records regarding her HIV status show it is under control, and plaintiff confirmed that in her testimony. Regarding the lupus condition that causes skin issues, plaintiff testified she gets relief from a cream she uses, and the records show the condition was regularly treated without any reference to it causing disabling symptoms. Vision treatment records show she has adequate vision despite the herpes zoster erythematosus that affects her eyes. Plaintiff testified and the record evidence shows her substance abuse is in remission. As to her musculoskeletal issues, the ALJ discussed treatment records and findings. He noted the findings on exam in Dr. Ganesh's report showed minimal physical findings, including a normal gait, normal and full strength in all extremities, full range of motion in the cervical spine, and no sensory deficits. Likewise, most of the records of Drs. Howard and Awayda often did not show any pertinent findings on exam of plaintiff's shoulders, back, and neck. Dr. Howard noted at most treatment encounters in 2014 through 2018 that plaintiff walked with a normal gait, had no cervical or lumbar lordosis, and had full range of motion. Her neck was supple and she denied muscle weakness. In 2013 she had good range of motion in her neck and both upper extremities. Many records of Drs. Howard and Awayda throughout the period at issue did not even mention anything about her musculoskeletal symptoms other than to note it in a problem list. Dr. Awayda noted her spine to be without deformities or tenderness in 2013. In 2014 Dr. Howard found good range of motion in her upper and lower extremities. Dr. Awayda found mild tenderness in her cervical spine in early 2014 and noted the findings of the 2014 MRIs of her neck and low back. Still, he found she had good motor power in upper and lower extremities, despite the findings on the MRIs. In April 2014, Dr. Awayda found she was getting good improvement with physical therapy. Dr. Howard noted in May of 2014 that she had good range of motion in her neck and no obvious deformities. Dr. Howard found her to have a normal gait and normal extremities in August of 2014. While she complained of chronic back and neck pain, Dr. Awayda found her to be sitting comfortably with no swelling in her extremities. When she presented for spinal pain in 2015 with complaints of radiating pain to her arms and legs, Dr. Howard found her to have good range of motion in both upper and lower extremities and Dr. Awayda found her extremities normal to inspection. In 2017, Dr. Howard found her heel-and-toe walk testing was normal and she was able to get up on her tiptoes. When positive findings were noted in February and March of 2017, there was only some tenderness in the low back with some limited flexion and her gait was slow. By May of 2017, normal findings were again reported, and she had full range of motion in her low back and neck. Upstate Hospital's records often note a normal range of motion in plaintiff's neck and normal musculoskeletal exams. The physical therapy discharge note in 2014 indicated she was no longer in need of restorative treatment. MRIs in 2010 and 2014 showed degenerative changes in her low back without nerve root compression. MRIs of her neck in 2010 and 2014 show disk herniations and stenosis with some flattening of the cord at C3-4 through C5-6 but vertebral bodies and disk heights were normal. Although she had a diagnosis of degenerative disk disease in her neck, medical treatment notes did not show weakness in her upper extremities or decreased grip strength. Conservative treatment of physical therapy and pain medications were recommended and prescribed. And as I noted earlier, the physical therapy discharge note indicated she was no longer in need of restorative treatment. Based upon the treatment during the relevant time period, the ALJ found plaintiff capable of medium work with some restrictions to account for her musculoskeletal impairments. I find all of the treatment outlined above was reviewed by the ALJ and the records provide clear and substantial evidence to support the RFC determination such that meaningful judicial review is possible. Here, I find the ALJ's analysis regarding plaintiff's functional limitations and restrictions affords an adequate basis for meaningful judicial review, applies the proper standards, and is supported by substantial evidence such that additional analysis would be unnecessary or superfluous. Turning specifically to plaintiff's arguments that the so-called treating physician rule was not properly applied by the ALJ, I find that argument unconvincing. In Estrella v. Berryhill, 925 F.3d 90, the court noted that an ALJ's failure to explicitly apply the factors listed in 20 C.F.R. Section 404.1527(c)(2) is procedural error, but the court will affirm if a searching review of the record shows that the substance of the treating physician rule was not traversed. I have done that searching review and find that the substance of the treating physician rule was followed. With regard to the ALJ giving no specific weight to Dr. Ganesh's opinion and the employability assessments done by Drs. Howard and Awayda, I find that argument unpersuasive as well, since the ALJ noted he gave greater weight to Dr. Chandrasekhar's opinion than those opinions, thus clearly giving the opinions of Drs. Ganesh, Howard, and Awayda less weight. I find the ALJ properly assessed those opinions, and he gave good reasons for not crediting the limitations suggested by Drs. Howard and Awayda. The ALJ correctly noted that the assessments of those physicians were for the Department of Social Services which is a different governmental agency that does not apply the same disability analysis as the SSA. The ALJ also credited Dr. Chandrasekhar's opinion with greater weight than the other opinions because of his programmatic expertise and because he reviewed all of the evidence of record through the date of his April 2018 report. Additionally, the opinion of Dr. Howard that appears to be for Jobs Plus as part of the Social Services review dated March 21, 2013 is outside the relevant time period, and it indicates that any disability is not expected to last more than one year. I will also note that Dr. Chandrasekhar's opinion set forth specific functional limitations, whereas the other opinions did not. Further, the ALJ also pointed to plaintiff's activity level to support his RFC determination. The record shows she cooks daily, does housework and laundry with some help, shops for food and clothing and can take public transportation. The ALJ also noted plaintiff generally had conservative treatment for her back and neck and noted the objective findings on examination, as I've summarized above, regarding her conditions do not support a finding of disability. The opinions of Drs. Awayda and Howard on plaintiff's limitations were inconsistent with treatment notes and the overall medical record during the relevant time period, as outlined above, showing only minimal findings and conservative treatment for plaintiff's claimed disabling conditions. Thus, I find that the ALJ properly evaluated the opinion evidence and gave good reasons for giving greater weight to the opinion of Dr. Chandrasekhar than the other opinions in the record. Accordingly, remand is not required on this basis. All in all, I find the ALJ properly weighed the opinions of record for the relevant period and considered all of the medical evidence showing plaintiff's conservative limited treatment through physical therapy and various medications for all of her conditions, including pain medication. All of this supports the ALJ's determination of plaintiff's RFC. In light of the foregoing and considering the entire record and the ALJ's determination, I find that the ALJ applied the appropriate legal standards of review in determining plaintiff's RFC and the RFC is supported by substantial evidence. I've considered plaintiff's brief step five argument and I find it to be without merit. Since I've found that the RFC is supported by substantial evidence and correct legal standards were applied, I find that the ALJ's step five determination is proper. So I grant defendant's motion for judgment on the pleadings and will enter a judgment dismissing plaintiff's complaint in this action. A copy of the transcript of my decision will be attached to the order should any appeal be taken from my determination. 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 January, 2020. /S/ JODI L. HIBBARD

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