Hardee v. Saul

• Court: District Court, N.D. New York
• Decided: August 27, 2020
• Docket: 3:19-cv-00755
• Status: Unknown

Opinion

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

DONNETTE H.,

Plaintiff, v. Civil Action No. 3:19-CV-0755 (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. GRANT C. JAQUITH CHRISTOPHER L. POTTER, ESQ. United States Attorney for the 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 August 19, 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

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. 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: August 27, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x DONNETTE H., Plaintiff, -v- 3:19-CV-755 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES August 19, 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 J.F.K. Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203 BY: CHRISTOPHER LEWIS POTTER, 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. 2 Time noted: 11:22 a.m.) 3 THE COURT: Plaintiff commenced this proceeding 4 pursuant to 42, United States Code, Sections 405(g) and 5 1383(c)(3) to challenge an adverse determination by the 6 Commissioner of Social Security finding that plaintiff was not

7 disabled at the relevant times and therefore ineligible for the 8 benefits sought. 9 The background is as follows: Plaintiff was born in 10 September of 1981. She is currently 38 years old. She was 11 34 years of age at the alleged onset of her disability in 12 January of 2016. Plaintiff stands between 4'8" and 4'10" inches 13 in height and weighs between 126 and 140 pounds depending on the 14 point in the record that you look. 15 Plaintiff lives in Binghamton in a mobile home with 16 her boyfriend and two children who were nine and four years old 17 at the time of the hearing in July of 2018. She also has an 18 older daughter. Plaintiff is right-handed. She secured a GED 19 in 2010. While she was in school, she was in regular classes. 20 She also has a CNA certification, which she obtained in 2007. 21 Plaintiff has a driver's license and does drive.

22 Plaintiff stopped working on January 2, 2016. When 23 she was employed, she was in various positions; 2001 to 2005, as 24 a laborer through a temporary agency; from March of 2007 to 25 December of 2007, she was a CNA/certified nurse assistant; she 1 also worked from May of 2006 to October 2010 as a cashier and a 2 prep person in a grocery store; and from May 2015 to 3 January 2016 as a cashier. 4 Plaintiff suffers from several physical conditions, 5 including disc bulges at multiple levels, multilevel 6 degenerative disc disease with mild central canal stenosis, and

7 she's been diagnosed as having fibromyalgia. She has bilateral 8 carpal tunnel syndrome, which she treats through the use of 9 splints, and headaches. In February of 2013, she underwent a 10 microdiskectomy at the T11-T12 level. In February of 2018, she 11 underwent magnetic resonance imaging testing. That is reported 12 at pages 485 through 487 of the Administrative Transcript. 13 At T10-T11, there was a finding of an intervertebral 14 disc desiccation, a bulging intervertebral disc, mild central 15 canal stenosis, but no significant neuroforaminal stenosis. At 16 T11 and T12, it was also noted to be a mild bulging 17 intervertebral disc, no significant central canal stenosis, and 18 no significant neuroforaminal stenosis. At L4-L5, there was a 19 mild disc bulge with facet joint arthropathy and ligamentum 20 flavum hypertrophy, but with no significant central canal 21 stenosis, and mild bilateral neuroforaminal stenosis. At L5-S1,

22 there was a finding of a Grade 1 anterolisthesis of L5 on S1 23 with an intervertebral disc desiccation and bulging 24 intervertebral disc with posterior central herniation indenting 25 the ventral thecal sac. Also, there was facet joint arthropathy 1 and mild central canal stenosis, as well as mild bilateral 2 neuroforaminal stenosis. The plaintiff also underwent earlier 3 MRI testing, it's reported at page 500, and there was disc 4 herniation located at T7-T8 and T9 and T10. 5 Mentally, plaintiff suffers from depression, anxiety, 6 and an adjustment disorder. For treatment, plaintiff sees Nurse

7 Practitioner Emily Crouse at Lourdes Center for Pain and 8 Wellness. She has also seen Dr. Aamir Rasheed, a neurologist, 9 and she sees Dr. Jane Hudson for her general treatment. In 10 terms of mental health, plaintiff did appear at UHS Outpatient 11 Mental Health from May of 2016 to April of 2017 when she was 12 discharged. She now sees Lourdes Mental Health for treatment. 13 The plaintiff has been prescribed many medications 14 over time for her mental health and physical health conditions, 15 including Gabapentin, Naproxen, Methocarbamol, Lidocaine 16 ointment, Lidocaine patches, Duloxetine for depression, 17 Escitalopram for depression, Baclofen, Cymbalta, Lexapro, 18 allergy medications, and Tylenol, as well as Zantac. 19 Plaintiff's activities of daily living include the 20 ability to groom herself, cook, clean, do laundry, shop, take 21 care of childcare, take care of dogs and cats, she plays music,

22 and plays the guitar. Plaintiff smokes between one half and one 23 pack of cigarettes per day, as well as medical marijuana that 24 has been prescribed by Nurse Practitioner Crouse. 25 Procedurally, plaintiff applied earlier for 1 disability benefits. Those benefits were denied by the 2 Administrative Law Judge's decision in March of 2014. Plaintiff 3 again applied for Supplemental Security Income or Title XVI 4 benefits on March 31, 2016, alleging an onset date of January 2, 5 2016. In support of her application, she claimed to suffer from 6 back problems-disc issues, depression, leg problems-numbness and

7 weakness, neck problems-nerve pain, and major headaches. 8 A hearing was conducted on July 5, 2018, by 9 Administrative Law Judge Thomas Cheffins with a vocational 10 expert. On August 23, 2018, ALJ Cheffins issued an unfavorable 11 decision which became a final determination of the agency on 12 April 30, 2019, when the Social Security Administration Appeals 13 Council denied plaintiff's request for a review. In doing that, 14 the Appeals Council reviewed new evidence in the form of the 15 medical questionnaire prepared by Nurse Practitioner Emily 16 Crouse on August 29, 2018, that appears at page 8 and 9 of the 17 Administrative Transcript, but found that it would not have 18 altered the outcome. This action was commenced on June 25, 19 2010, and is timely. 20 In his decision, the ALJ applied the familiar 21 five-step sequential test for determining disability. At step

22 one, ALJ Cheffins concluded that plaintiff did not engage in 23 substantial gainful activity since the date of application on 24 March 31, 2016. 25 At step two, he concluded that plaintiff does suffer 1 from severe impairments that impose more than minimal 2 limitations on her ability to perform basic work functions, 3 including degenerative disc disease of the lumbar and thoracic 4 spine, status post discectomy T11-T12, cervicalgia, 5 fibromyalgia, and right carpal tunnel syndrome. 6 At step three, the Administrative Law Judge concluded

7 that the conditions do not meet or medically equal any of the 8 listed presumptively disabling conditions set forth in the 9 Commissioner's regulations, specifically considering listings 10 1.02, 1.04, and 1.01/14.06 in connection with fibromyalgia. The 11 Administrative Law Judge next concluded that plaintiff retains 12 the residual functional capacity to perform light work with 13 exceptions that she can never climb ladders, ropes, or 14 scaffolds, she can occasionally stoop and crouch, and she can 15 frequently handle and finger the right upper extremity. 16 At step four, the Administrative Law Judge concluded 17 that with that residual functional capacity, plaintiff is unable 18 to perform any of her past relevant work. 19 Proceeding to step five, Administrative Law Judge 20 Cheffins noted first that if plaintiff were capable of 21 performing a full range of light work, the Medical-Vocational

22 Guidelines in the regulations, and specifically Grid Rule 23 202.21, would direct a finding of no disability. 24 With the assistance of a vocational expert and a 25 hypothetical posed to that vocational expert that mirrored the 1 residual functional capacity finding, it was determined that 2 plaintiff, at the light work level, could perform as a counter 3 clerk and a bakery line worker, and although it was testified 4 that the Dictionary of Occupational Titles did not address the 5 stooping requirement associated with those two positions, the 6 vocational expert testified based on his expertise she would be

7 capable of performing in those positions notwithstanding the 8 stooping limitation. 9 As you know, the Court's task is limited and applies 10 a very deferential standard to the agency's determination. I 11 must decide whether correct legal principles were applied and 12 the resulting determination is supported by substantial 13 evidence. As the Second Circuit noted in Brault v. Social 14 Security Administration Commissioner at 683 F.3d 443 from 2012, 15 the substantial evidence standard is stringent. Substantial 16 evidence is defined as such relevant evidence as a reasonable 17 mind might accept as adequate to support a conclusion. It is 18 akin to and even more stringent than the clearly erroneous 19 standard which we as lawyers are familiar with. As the Second 20 Circuit noted, the substantial evidence standard means once an 21 ALJ finds a fact, that fact can be rejected only if a reasonable

22 factfinder would have to have conclude otherwise. 23 The plaintiff has raised three basic contentions. 24 First, that the residual functional capacity, and specifically 25 the physical components of it, are not supported by any medical 1 opinions. Secondly, the plaintiff complains of the Appeals 2 Council's finding that Nurse Practitioner Crouse's questionnaire 3 would not alter the determination of the Administrative Law 4 Judge. And third, the step five determination is challenged as 5 not supported because the vocational expert presumably used job 6 numbers that were associated with OES categories that included

7 multiple jobs, some of which plaintiff may not be able to 8 perform, and that it's based on a flawed hypothetical because 9 the residual functional capacity finding is not supported. 10 Turning first to the step five argument, it appears 11 to me that the vocational expert did rely on OES category 12 numbers. This is a step at which the Commissioner bears the 13 burden of proof. The burden can, of course, be carried through 14 the testimony of a vocational expert. There were two jobs 15 identified in the light category in response to a hypothetical, 16 which did mirror the residual functional capacity finding, and 17 the vocational expert identified 115,000 jobs available in one 18 category and 290,000 in another at pages 87 to 88. The 19 vocational expert testified as to the source of the information 20 and job numbers, including employment quarterly reports, Census 21 Bureau information, and training, education, and experience,

22 which, of course, are proper bases for the vocational expert's 23 opinion. But, again, he was asked if the numbers correlated to 24 OES categories and he responded yes. 25 I think the matter could and should have been 1 clarified. I'm not sure I agree that it is malpractice to 2 inquire into or attempt to clarify, but even if the argument was 3 not waived, I find that it is harmless error. The number of 4 jobs cited are greatly in excess of the numbers of jobs that 5 would be required in the 6,000 to 10,000 range to support a 6 finding of the ability to perform work in the national economy.

7 Michelle M v. Commissioner of Social Security, it is 8 found at 2020 WL 495170, a Northern District of New York 9 decision from January 30, 2020, a similar situation where an 10 ALJ's reliance on a vocational expert's identification of over 11 100,000 positions nationally, even if they came from OES job 12 groups, because it was in excess of 10,000, it was deemed to be 13 harmless error. 14 My greater concern is the physical components of the 15 residual functional capacity finding in this case. Pivotal to 16 any determination of disability is a finding of a claimant's 17 residual functional capacity, which represents the range of 18 tasks she is capable of performing notwithstanding the 19 impairments at issue. An RFC determination is informed by 20 consideration of all of the relevant medical and other evidence. 21 To properly ascertain a claimant's RFC, an ALJ must assess

22 plaintiff's exertional capacities such as her ability to sit, 23 stand, walk, lift, carry, push, and pull. The ALJ must also 24 consider any nonexertional limitations or impairments, including 25 those that result in postural and manipulative limitations. 1 When rendering an RFC determination, the ALJ must specify those 2 functions that the claimant is capable of performing. 3 Conclusory statements concerning her capabilities will not 4 suffice. And, of course, ultimately, any RFC determination must 5 be supported by substantial evidence. 6 In this case, the plaintiff was deemed by the

7 Administrative Law Judge to have the capability of performing 8 light work with some alterations. Light work is defined under 9 20 C.F.R. Section 404.1567(b) as follows: Light work involves 10 lifting no more than 20 pounds at a time with frequent lifting 11 or carrying of objects weighing up to 10 pounds. Even though 12 the weight lifted may be very little, a job is in this category 13 when it requires a good deal of walking or standing, or when it 14 involves sitting most of the time with some pushing and pulling 15 of arm or leg controls. To be considered capable of performing 16 a full or wide range of light work, you must have the ability to 17 do substantially all of these activities. If someone can do 18 light work, we determine that he or she can also do sedentary 19 work, unless there are additional limiting factors such as loss 20 of fine dexterity or inability to sit for long periods of time. 21 There's no question that there is not a single

22 medical opinion other than Nurse Practitioner Crouse's, which 23 we'll deal with in a moment, in the record that relates to 24 plaintiff's ability to perform functions such as standing, 25 walking, sitting, lifting, and carrying. The only position in 1 the record or opinion in the record that speaks to those 2 characteristics is Exhibit 3A, and the physical portion of that 3 exhibit is signed by a single decisionmaker whose opinion is not 4 entitled to any weight. 5 I recognize that in a simple case, it is clear that 6 an Administrative Law Judge may make a residual functional

7 capacity determination without support from a medical source. 8 This, however, in my view, is not a simple case. Plaintiff 9 suffers from mutli-level degenerative disc disease, which is 10 well supported, including by MRI testing, and also has a 11 diagnosis of fibromyalgia. It's undeniable that fibromyalgia is 12 an illusive disease which may or may not result in a finding of 13 disability. The diagnosis does not translate into an automatic 14 finding of disability. After all, it is not the presence of a 15 medical condition, but rather its resulting limitations that 16 inform the question of whether a plaintiff is under a 17 disability. 18 Undeniably, fibromyalgia is recognized as a 19 potentially severe impairment that may support a claim of 20 disability under the act, in Green-Younger v. Barnhart, 335 F.3d 21 99 at 108, a Second Circuit decision from 2003. It is also true

22 that by its very nature, fibromyalgia is not always readily 23 susceptible to detection or verification through clinical 24 testing or other objective means, as the Second Circuit noted in 25 Green-Younger. Despite its illusiveness and potentially 1 debilitating effects, fibromyalgia, like many medical 2 conditions, is one which may be, but is not necessarily, so 3 limiting as to qualify as disabling under the act, Coyle v. 4 Apfel, 66 F. Supp. 2d 368 at 376-77, a decision from Judge Hurd 5 in the Northern District of New York in 1999. 6 In this case, I recognize the Commissioner's argument

7 that it is plaintiff's burden to establish her limitations, and 8 she can carry that burden in a variety of ways, including 9 through her testimony. She testified about her inability to 10 stand or sit for more than ten minutes. There is also evidence 11 in the record that supports her degenerative disc disease 12 complaints. Clearly, if Nurse Practitioner Crouse's medical 13 source statement was considered, it would support or buttress 14 plaintiff's claims concerning her inability to lift, her need to 15 change positions, her inability to stand or walk for long 16 periods of time, and her limitations on lifting. 17 In my view, this is a case where the Administrative 18 Law Judge manufactured an RFC finding out of whole cloth, 19 playing doctor, and not relying on any medical opinions. This 20 case is extremely similar to the decision issued by Chief 21 Judge Suddaby in Charland v. Commissioner of Social Security,

22 2016 WL 1117515 from March of 2016, where, citing Second Circuit 23 authority, Chief Judge Suddaby noted that an ALJ is not 24 permitted to substitute his own expertise or view of the medical 25 proof for the treating physician's opinion or for any competent 1 medical opinion. Moreover, an ALJ cannot assess a plaintiff's 2 RFC based on the ALJ's own interpretation of the medical 3 evidence. Judge Suddaby did go on to recognize that where 4 medical evidence shows relatively little physical impairment, an 5 ALJ can permissively render a common sense judgment about 6 functional capacity even without a physician's assessment.

7 In this case, however, the ALJ recognized plaintiff's 8 degenerative disc disease at multiple levels and fibromyalgia as 9 severe at step two. This is not a simple case and there was 10 simply no basis for the ALJ to assess plaintiff's ability to 11 lift, stand, need to change positions, work pace, or attendance. 12 So in conclusion, I find that the residual functional 13 capacity finding in this case is not supported and, therefore, 14 the step five determination which relied on a hypothetical that 15 was based on the RFC finding cannot stand, and, therefore, the 16 step five determination is not supported by substantial 17 evidence. I don't find it necessary to reach the new evidence 18 issue because of my determination. I don't find persuasive 19 evidence of disability. I think this is a situation where a 20 remand is required in order to obtain some medical opinions 21 concerning plaintiff's physical capabilities, so I will grant

22 judgment on the pleadings and order remand of the matter without 23 a directed finding of disability. 24 Thank you both for excellent presentations. I hope 25 you stay safe in these interesting times. 1 MR. GORTON: Thank you, your Honor. 2 MR. POTTER: Thank you, your Honor. 3 (Time noted: 11:48 a.m.) 4 5 6

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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 August, 2020. 16 17 X Mannah. Fu | asteaiphe 18 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR 19 Official U.S. Court Reporter 20 21 22 23 24 25