Foust v. Saul

Opinion

AKASHA SHAYTAN. F.,

Plaintiff, Civil Action No. 5:19-CV-0977 (DEP) v.

ANDREW M. SAUL, Commissioner Social Security Administration,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LEGAL AID SOCIETY OF ELIZABETH V. KRUPAR, ESQ. MID-NEW YORK, INC. 221 South Warren St. Syracuse, NY 13202

FOR DEFENDANT HON. ANTOINETTE T. BACON PAUL NITZE, ESQ. Acting 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

ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on September 1, 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: 1) Defendant=s motion for judgment on the pleadings is

GRANTED. 2) The Commissioner=s determination that the plaintiff's disability ended on September 14, 2017, and the plaintiff has not become disabled

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. again since that date, is AFFIRMED. 3) The clerk is respectfully directed to enter judgment, based

upon this determination, DISMISSING plaintiff's complaint in its entirety.

David E. Peebles U.S. Magistrate Judge Dated: September 8, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x AKASHA F., Plaintiff, -v- 19-CV-977 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES September 1, 2020 100 South Clinton Street, Syracuse, New York For the Plaintiff: (Appearance by telephone) LEGAL AID SOCIETY OF MID-NEW YORK, INC. 221 South Warren Street Suite 310 Syracuse, New York 13202 BY: ELIZABETH V. KRUPAR, ESQ. For the Defendant: (Appearance by telephone) SOCIAL SECURITY ADMINISTRATION J.F.K. Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203 BY: PAUL NITZE, 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 all parties present by telephone. Time noted: 1:33 p.m.) THE COURT: Let me begin by thanking both counsel for excellent detailed and forceful presentations dealing with this interesting case. Plaintiff commenced this proceeding pursuant to 42,

United States Code, Sections 405(g) and 1383(c)(3) to challenge a determination by the Commissioner of Social Security. This is a somewhat different case than the ordinary in that the plaintiff was previously at one time granted benefits under the Social Security Act. The focus of the Administrative Law Judge's decision in this case and the Commissioner's ultimate determination was whether medical improvement had occurred and whether, notwithstanding that medical improvement, plaintiff continued to be disabled and unable to perform work functions in positions in the national economy. The background is as follows: Plaintiff is in the process, beginning in August of 2017, of a transgender transformation, female to male. The plaintiff prefers to be called Jakob, with a K, although he has not legally changed his name. As the Administrative Law Judge, I will refer to the

plaintiff using male pronouns. Plaintiff was born in February of 1993 and is currently 27 years old. He stands 5'3" or 5'2" inches, depending on where in the record you refer, in height and is obese, weighing somewhere at various times between 196 and 225 pounds. Plaintiff lives in an apartment in Syracuse with his partner, David W. It is a one bedroom fourth floor apartment. They have a cat. Plaintiff has previously lived in Arizona and with his mother in Niagara Falls. Plaintiff has a high school degree and one year of college education. Plaintiff

has a massage therapy certification. Plaintiff was never married and has no children. He is right-handed. He has no driver's license. He does use public transportation, including buses and Ubers. Plaintiff has never worked except as a seasonal employee in Arizona at age 16. He also stated that he has done some volunteer work at a library. Physically, plaintiff has been treated for Legg-Calve-Perthes disease, which, as I understand it, is a childhood disease that affects the hip and occurs when the blood supply to the rounded head of the femur is temporarily disrupted causing bone cells to die, a process known as avascular necrosis. The plaintiff underwent, to address that condition, a hip replacement in January of 2014 at the Shriners Hospital. He also suffers from polycystic ovary syndrome or PCOS. He

presented to the emergency rooms at two hospitals with vaginal bleeding, once in Oneida in May of 2016, and once at Upstate in February of 2018. He also suffers from endometriosis. Mentally, plaintiff has been variously diagnosed as having posttraumatic stress disorder or PTSD, depression and depressive disorder, gender dysphoria, anxiety disorder, and dissociative identity disorder. Plaintiff's partner, David, testified that plaintiff has as many as ten separate identities. Plaintiff undergoes hallucinations. Plaintiff initially saw Dr. Emeka Anumba who

apparently has abandoned the practice of medicine. His primary provider is Nurse Practitioner Kathleen McDonald at St. Joseph's. He also sees Dr. Rachel Hopkins for diabetes and transgender evaluation and treatment. He receives treatment at Syracuse Behavioral Health, which is also known as or has transitioned to Helio Health, including from LMSW Anita Fellows who he sees weekly. There's indication that his care is overseen by Dr. Damon Tohtz, although there did not appear to be any records showing that Dr. Tohtz has actually examined or evaluated the plaintiff. Plaintiff is on variations medications, including Klonopin, Risperdal, Metformin, Lisinopril, testosterone since September of 2017, insulin, and Ibuprofen. Plaintiff testified he's never smoked, although at page 565 there's indication he's told Dr. Ganesh that he was a former smoker.

Plaintiff has a fairly wide range of activities of daily living. He is able to groom, cook and prepare meals, wash dishes, clean, mop, sweep, vacuum. There's a question as to whether he's able to do laundry, and the record is equivocal on that issue. He uses public transportation as I previously indicated, shops, goes out alone, socializes, reads, writes, he does beaded jewelry, watches television, engages in social media, swims, goes out to dinner occasionally and to the movies, and watches David, his partner, play video games. Procedurally, plaintiff was found to be disabled on

January 24, 2013, and eligible for Supplemental Security Income Title XVI benefits with an onset date of November 7, 2012. On September 14, 2017, there was a determination of medical improvement affecting plaintiff's ability to work and a finding of no disability was entered effective on September 14, 2017. A hearing was conducted by Administrative Law Judge Robyn L. Hoffman on August 15, 2018, to address the issue of medical improvement. At that hearing, plaintiff proceeded without legal or other representation. On October 18, 2018, Administrative Law Judge Hoffman issued an unfavorable decision. On July 23, 2019, the Social Security Administration Appeals Council denied plaintiff's request for review. In doing that, the Appeals Council reviewed additional documents produced from Therapist Fellows and Dr. Tohtz, as well as Nurse Practitioner McDonald, and found that the consideration of those documents would not

have likely altered the result. This action was commenced on August 7, 2019, and is timely. In her decision, ALJ Hoffman applied the test for medical improvement. At step one, the Administrative Law Judge concluded that at the reference point/time of January 24, 2013, known as the comparison point decision, or CPD, plaintiff suffered from severe impairments imposing more than minimal limitations on his ability to perform basic work functions, including Legg-Calve-Perthes disease of the left hip and obesity.

The Administrative Law Judge then concluded that since September 14, 2017, plaintiff suffers from severe impairments, including Legg-Calve-Perthes disease of the left hip, status post total hip replacement, obesity, hypertension, polycystic ovary syndrome or PCOS, posttraumatic stress disorder or PTSD, anxiety disorder, depressive disorder, gender dysphoria, and dissociative disorder. The ALJ next concluded at step three of the sequential analysis that since September 14, 2017, 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 1.02 related to major joint dysfunctions, 1.03 related to reconstructive surgery of major weightbearing joints, 7.18 repeated complaints of hematological disorders, 12.04

depression, bipolar disorder, and so forth, 12.06 related to anxiety and obsessive compulsive disorder, and 12.15 related to trauma and stressor-related disorders. ALJ Hoffman also considered plaintiff's obesity. After making that review, ALJ Hoffman concluded that since September 14, 2017, plaintiff retains the ability to perform light work, specifically being able to lift and carry 20 pounds occasionally and 10 pounds frequently. He can sit for up to six hours and stand or walk for approximately six hours in an eight-hour day with normal breaks. Mentally, the plaintiff

is able to understand, carry out, and remember simple instructions, respond appropriately to supervision, coworkers, and usual work situations, and can deal with changes in a routine work setting. At step four, Administrative Law Judge Hoffman noted that plaintiff did not have any past relevant work. She then proceeded to step five. She noted that if plaintiff were able to perform a full range of light work, a finding of no disability would be directed by the Medical-Vocational Guidelines set forth in the Commissioner's regulations, and specifically Rule 202.20. Relying on Social Security Ruling 85-15, ALJ Hoffman concluded that plaintiff's additional limitations, nonexertional limitations that is, do not preclude him from performing basic mental requirements of unskilled work and, therefore, concluded that plaintiff

experienced medical improvement and was not disabled subsequent to September 14, 2017. As you know, the Court must review the determination and analyze whether it is supported by substantial evidence and whether the Administrative Law Judge applied the correct legal principles. The standard to be applied is extremely deferential. The Second Circuit noted in Brault v. Social Security Administration Commissioner, 683 F.3d 443 from 2012, that this is a very stringent test akin to or even, perhaps, greater than the clearly erroneous test which we as lawyers are

familiar with. Of course, substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Second Circuit noted in Brault that the standard means once an Administrative Law Judge has found a fact, that fact can be rejected only if a reasonable factfinder would have to conclude otherwise. Plaintiff raises four basic contentions in this case. He contends that the plaintiff -- the ALJ, I'm sorry, failed to fulfill his duty to develop a full and fair record and specifically to obtain records from Planned Parenthood and Upstate Women's Health Services. The second argument is that the RFC was flawed because it did not include nonexertional limitations and specifically a mild limitation in interacting with others and a moderate limitation in adapting and managing self. The third argument is that the plaintiff's subjective

claims of symptoms were not properly analyzed. And fourth, the step five determination was flawed because it is based on an erroneous residual functional capacity finding and should have been the subject of vocational expert testimony rather than reliance on the grids. I note that the termination of medical benefits is governed by both 42, United States Code, Section 421 and 20 C.F.R. 6416.994. The Commissioner is statutorily charged with the duty to engage in a continuing periodic review of a claimant's condition. If, based on that review, the

Commissioner determines that the disabling condition has subsided, does not exist, or is not disabling, a termination of benefits may be ordered. In making a review to determine whether the cessation of Social Security benefits is warranted, the Commissioner must examine the claimant's current condition, ordinarily requiring assessment of the plaintiff's condition at the time of the hearing. Generally speaking, termination of benefits is appropriate when there has been medical improvement related to the claimant's ability to work, the claimant has benefitted from advances in medical or vocational technology related to the ability to work regardless of the lack of medical improvement, a claimant has undergone vocational therapy related to the ability to work based on new or improved diagnostic or evaluative techniques, it is demonstrated that a claimant's condition was

not as disabling as previously regarded, or substantial evidence shows that an earlier finding of disability was erroneous. When a claimant's medical condition improves to the extent that he or she can engage in substantial gainful activity, that party will no longer be entitled to benefits under the act. In order to support the termination of benefits, the Commissioner must meet a burden of showing by substantial evidence that a medical improvement has taken place in a claimant's ability to perform work activity. If there is medical improvement, the Commissioner

must determine whether the improvement is related to the claimant's ability to work. A medical improvement will be related to the claimant's ability to work where it results in a decrease in the severity of the impairment present at the time of the most recent favorable medical decision and an increase in the claimant's functional capacity to perform basic work activities. The medical improvement test entails a -- it depends on whether you -- where you look. It's either a seven or eight step test. Michael M. v. Commissioner of Social Security, a case from this district, Magistrate Judge Baxter, it is reported at 2019 WL 530801, characterizes it as a seven -- as an eight step test for determining disability. Chavis also deals with termination of benefits, Chavis v. Astrue, 2010 WL 624039, a decision from District Judge Kahn. He also characterizes it as

an eight step test for determining medical improvement. I think Judge Hoffman may have referred to it as a seven step test, but regardless, it's clear to me that she applied the appropriate test. Turning to the specifics of plaintiff's arguments, there's no question that the plaintiff underwent medical improvement of the condition that resulted in the initial finding of disability when he underwent a hip replacement. Turning again to the development of the record issue, there is no question that the -- can I ask you to mute your phones if you

have not done so already? MR. NITZE: Yes, your Honor. THE COURT: So undeniably -- unquestionably, an Administrative Law Judge has a duty to develop a full and fair record. Disability hearings are not adversarial proceedings in the truest sense. That duty is particularly acute when a plaintiff is acting pro sé unrepresented such as occurred in this case. Bodine v. Colvin, 2013 WL 1108625 from the Northern District of New York, 2013, that was adopted at 2013 WL 1104127 on March 18, 2013, that is also supported by Morris v. Berryhill, 721 F. App'x 25 from the Second Circuit Court of Appeals, January of 2018. As a side note, I reviewed the colloquy that occurred at the outset of the hearing concerning the right of plaintiff to have counsel or some other non-attorney representative appear

on his behalf at the hearing. The colloquy occurs at 163 to 166 of the Administrative Transcript. I find that the colloquy was adequate in carrying out the Administrative Law Judge's duty in that regard, Genito v. Commissioner of Social Security, 2017 WL 1318002, that is from the Northern District of New York, 2017. The plaintiff's claim is that records should have been obtained concerning his endometriosis and PCOS and they would have resulted in additional limitations. In his argument, however, he does not identify what those limitations would be. The duty under Bodine and the other case that I've cited to

develop the record only appears if there are gaps and the question of disability cannot be decided on the existing evidence. In this case, I find no obvious gaps and, therefore, there was no duty to further develop the record. Here, the Administrative Law Judge had before her notes of treatment of both -- from physical and mental providers, as well as consultative opinions from Dr. Dennis M. Noia, a psychologist who examined the plaintiff, and Dr. Kalyani Ganesh, who conducted an orthopedic examination. There was also information from Dr. Mary McLarnon. The Administrative Law Judge specifically asked the plaintiff if there was any additional evidence that should be secured at 165 and 166, and asked at page 167 if there was anything missing, to which the plaintiff responded no. The plaintiff was represented by counsel before the Appeals Council, but did not submit

additional records from those two providers that I just identified or ask for time to secure those additional records, so I find no error. I also find that if there was an error in this regard, it is harmless because the treatment notes in the record show that plaintiff's PCOS was stable and don't appear to indicate any additional limitations on his ability to perform work functions. Turning to the nonexertional limitations and the claim that additional limitations should have been included in the RFC, I note that Dr. Dennis Noia examined the plaintiff on

June 30, 2017. His report appears at page 560 through 564 of the Administrative Transcript. On examination, Dr. Noia found that plaintiff's demeanor and responsiveness to questions to be cooperative; his manner of relating social skills and overall presentation was adequate; stated that he looked his stated age; his speech intelligibility was fluent; his thought processes were coherent and goal directed with no evidence of delusions, hallucinations, or disordered thinking; his affect was full range and congruent with his thoughts and speech; his mood was reported to be feeling anxious, somewhat tense, and apprehensive; his sensorium was clear; he was oriented times three; his attention and concentration was intact; his recent and remote memory skills were intact; his cognitive functioning was estimated to be in the average range; insight was listed as good; judgment was listed as good.

In his medical source statement, Dr. Noia stated the claimant appears to have no limitations understanding, remembering, or applying simple directions and instructions. He appears to have no limitations understanding, remembering, or applying complex directions and instructions. He appears to have no limitations using reasoning and judgment to make work-related decisions. He appears to have mild limitations interacting adequately with supervisors, coworkers, and the public. He appears to have no limitations sustaining concentration and performing a task at a consistent pace. He

appears to have no limitations sustaining an ordinary routine and regular attendance at work. He appears to have moderate limitations regulating emotions, controlling behavior, and maintaining wellbeing. He appears to have no limitations maintaining personal hygiene and wearing appropriate attire. He appears to have no limitations being aware of normal hazards and taking appropriate precautions. Dr. Noia's report was discussed by the Administrative Law Judge at page 32. At page 36, it was given great weight. I note that a plaintiff -- an ALJ does not have an obligation to adopt all parts of any one particular opinion. In this case, Dr. Noia's findings are well supported. At page 33, Administrative Law Judge Hoffman did, when addressing the so-called (b) criteria, did acknowledge mild difficulties in interacting with others and moderate difficulties in adapting or

managing self. Of course, the (b) criterion do not equate to a residual functional capacity finding, but more importantly, mild limitation in social functioning does not preclude interaction with supervisors/coworkers in a normal work setting or the ability to perform basic demands of unskilled work, Cuenca v. Commissioner, 2016 WL 2865726 from the Northern District of New York, 2016. So I find that Dr. Noia's opinions do support the residual functional capacity and do not preclude the ability to perform basic work functions, simple unskilled work, or to interact with supervisors, coworkers, and the public.

The other argument raised in this regard by the plaintiff hinges on Therapist Fellows's August 1, 2018, two-page letter at page 678 and 679. That letter generally describes her treatment of the plaintiff. It does not contain any function-by-function opinions. The only opinion contained in it is, quote, it is my professional opinion that Jakob is unable to work at this time. That is an opinion that even plaintiff conceded is not binding on the Administrative Law Judge and could address this matter entrusted to the discretion of the Commissioner. In terms of the plaintiff's argument drawn from this letter, it was based on inference, his interpretation of what LMSW Fellows said concerning the treatment, so -- and of course, as it was noted under the regulations that apply to this case, Therapist Fellows is not an acceptable medical source. Although

the letter appears to be co-signed by Dr. Tohtz, there isn't any evidence in the record that he was truly a treating physician vis-à-vis plaintiff. So in conclusion, I find no error in addressing and including in the RFC any meaningful opinions from Dr. Noia and Therapist Fellows. Turning to the credibility analysis, undeniably an ALJ must take into account a plaintiff's subjective complaints in rendering the five step disability analysis. When examining the issue, however, the ALJ is not required to blindly accept the subjective testimony of a claimant, rather an ALJ retains

the discretion to weigh the credibility of the claimant's testimony in light of the other evidence in the records. The analysis of subjective claims of symptomology is essentially a two-step process. In the first instance, the Administrative Law Judge must determine whether the claimed symptoms are consistent with and supported by objective clinical evidence demonstrating that he has a medical impairment that could reasonably be expected to produce the pain or other symptoms alleged. If so, the ALJ then must consider various factors in determining credibility. Those factors are outlined in both 20 C.F.R. Section 416.929 and in Social Security Ruling 16-3p. In this case, Administrative Law Judge Hoffman went through a credibility analysis, discussed plaintiff's claims, and properly engaged in the analysis. I note that although SSR 16-3p references several factors, as does the regulation that I

cited, it's not necessary to meet all of the factors or to discuss all of the factors. In this case, the -- and of course, the Administrative Law Judge's entire decision should be looked to to determine whether the determination of plaintiff's credibility or subjective claims was properly conducted by the Administrative Law Judge. In this case, ALJ Hoffman recited plaintiff's claims at page 35 and rejected them based primarily on plaintiff's function report, including activities of daily living, the opinions of Dr. Noia and Dr. Ganesh, and the relative benign

findings specifically of Dr. Noia. The activities of daily living were outlined at page 36. Activities of daily living are very much an appropriate consideration. This case is not unlike Carvey v. Astrue, 380 F. App'x 50 from the Second Circuit, 2010, where the Second Circuit rejected -- supported the ALJ's rejection of the plaintiff's testimony based on not only extensive objective medical tests, but also the wide ranging activities of the plaintiff, including shopping, cooking, child care, operating a riding lawnmower, attending school functions, cookouts, and auto races. In this case, especially dealing with the physical, plaintiff literally underwent little or no treatment for his physical condition. Again, this is a proper consideration under Diaz-Sanchez v. Berryhill, 295 F.Supp.3d 302 in the Western District of New York in 2018. I find that the Administrative

Law Judge properly applied SSR 16-3p in considering the plaintiff's subjective reports of symptomology and the resulting finding of the Administrative Law Judge is supported by substantial evidence. At step five, I note that it is the Commissioner's burden at that step to carry. In this case, the Administrative Law Judge properly relied on SSR 85-15 to address the mental demands of basic unskilled work at page 37 and 38. The vocational expert's testimony is only required if nonexertional limitations limit the range of work permitted by exertional

limitations, Bombard-Senecal v. Commissioner, 2014 WL 3778568 from the Northern District of New York, 2014, also Sibala v. Astrue from the Second Circuit, 595 F.3d 402, 2010, and Pritchard v. Colvin, 2014 WL 3534987 from the Northern District of New York, 2014. I note that the Second Circuit has held the mere existence of nonexertional limitations does not automatically require the testimony of a vocational expert, Bapp v. Bowen, 802 F.3d 601 from the Second Circuit, 1986. And so the finding of nonexertional limitations in this case did not limit the range of work permitted by plaintiff's exertional limitations under Sibala, which I cited a moment ago. The plaintiff relies on Magistrate Judge Andrew Peck's decision in Prince v. Colvin, 2015 WL 1408411. It's a decision I'm not sure I, with all due respect to my former

colleague, agree with. I think while SSR 85-15 on its face may only apply in cases involving purely nonexertional limitations, it does provide guidance on the mental demands of simple unskilled work and was properly looked to in that respect by Administrative Law Judge Hoffman. In conclusion, I find that the determination of the Commissioner was supported by substantial evidence and resulted from the application of correct and proper legal principles and I will therefore grant judgment on the pleadings to the defendant.

I'd like to thank both counsel and I hope you stay safe during these trying times. MS. KRUPAR: Thank you, your Honor. MR. NITZE: Thank you, your Honor. (Time noted: 2:09 p.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 4th day of September, 2020. x Naunat F. | avanaugh HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR Official U.S. Court Reporter