Harrington v. O'Malley

Opinion

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

DAWN L. H.,

Plaintiff, v. Civil Action No. 5:23-CV-480 (DEP)

MARTIN J, O’MALLEY, Commissioner of Social Security,1

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LEGAL AID SOCIETY OF ELIZABETH V. LOMBARDI, ESQ. MID-NEW YORK, INC. 221 S. Warren Street, Suite 310 Syracuse, NY 13202

FOR DEFENDANT

SOCIAL SECURITY ADMIN. JASON P. PECK, ESQ. 6401 Security Boulevard Baltimore, MD 21235

Plaintiff’s complaint named Kilolo Kijakazi, in her official capacity as the Acting Commissioner of Social Security, as the defendant. On December 20, 2023, Martin J. O’Malley took office as the Commissioner of Social Security. He has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See 42 U.S.C. § 405(g). DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security (“Commissioner”), pursuant to 42 U.S.C. § 405(g), are cross-motions for judgment on the pleadings.2 Oral argument was conducted in connection with those motions on April 18, 2024, 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

This action is timely, and the Commissioner does not argue otherwise. It has been treated in accordance with the procedures set forth in the Supplemental Social Security Rules and General Order No. 18. Under those provisions, the court considers the action procedurally as if cross-motions for judgment on the pleadings have been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. 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 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.

U.S. Magistrate Judge Dated: April 22, 2024 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x DAWN L. H.,

Plaintiff,

vs. 5:23-CV-480

MARTIN J. O'MALLEY, Commissioner of Social Security,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on April 18, 2024, 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: LEGAL AID SOCIETY OF MID-NEW YORK, INC. 221 South Warren Street, Suite 310 Syracuse, New York 13202 BY: ELIZABETH V. LOMBARDI, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of the General Counsel 6401 Security Blvd. Baltimore, Maryland 21235 BY: JASON P. PECK, ESQ.

Jodi L. Hibbard, RMR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 (The Court and all counsel present by telephone.) THE COURT: Let me begin by thanking counsel for their presentations. I found this to be an interesting and, frankly, close case. The plaintiff has commenced this action pursuant to 42 United States Code Section 405(g) to challenge an adverse determination by the Commissioner of Social Security. At the outset of the hearing, we addressed the question of consent. This matter was originally assigned to a different magistrate judge. A consent form was filed by the plaintiff, it left blank the identity of the magistrate judge to whom plaintiff was consenting, but I ascertained from plaintiff's counsel and confirmed with defense counsel that they consent to my deciding this case. The background is as follows: Plaintiff's date of birth is in April of 1965, she is currently almost -- she is now 59 years of age. She was 53 years old at the onset of disability which was identified as February 1, 2019. She stands 5 foot 5 inches in height and weighs 175 pounds, or did at the time this matter was filed. She has a 12th grade education and while in school attended regular classes. Plaintiff is divorced but has a significant other in her life. In the past she's worked in many positions, most of which involved factory work and assembly work. She was an assembler of circuit boards, she's been a line worker, a solderer and in various capacities and with three or four different companies. She last worked in January of 2019. Plaintiff suffers from lumbar back pain that has been diagnosed by at least the consultative examiner in this case as degenerative disc disease. She has degenerative joint disease and arthritis in her thumbs bilaterally, and vertigo, as well as levoscoliosis which I understand is a condition that makes one's spine curve to the left. Mentally, she has suffered in the past from variously diagnosed conditions including post-traumatic stress disorder, depressive disorder, opioid use disorder, alcohol use disorder, stimulant use disorder, and has in the past used marijuana, cocaine, heroin, methamphetamines, and alcohol. She has been hospitalized for rehabilitation on a couple of occasions. Plaintiff is also a smoker, smokes one half pack of cigarettes per day. She receives care from various sources, including a nurse practitioner with Homer Family Practice, Jacqueline Gagen. She receives treatment at the Guthrie Medical Center and has since March of 2021, Family Counseling Services of Cortland, and Family and Children's Society where she periodically sees Michelle Reynolds who is an LMFT, or licensed marriage and family therapist. Her activities of daily living include some cleaning, shower, dressing, she does laundry. Her significant other does a majority of the cooking, cleaning, and shopping. Plaintiff drives occasionally, she watches television, and listens to music. Procedurally, plaintiff applied for Title II benefits protectively on March 1, 2021, alleging an onset date of February 1, 2019. She claims at page 285 of the Administrative Transcript to suffer from PTSD, depression, anxiety, a back problem, arthritis, addiction, high blood pressure, and vertigo. A hearing was conducted on July 14, 2022 by Administrative Law Judge Victoria Ferrer to address plaintiff's application. ALJ Ferrer issued an unfavorable decision on August 3, 2022. That became a final determination of the agency on March 23, 2023, when the Social Security Administration Appeals Council denied plaintiff's request for review. This action was commenced on April 19, 2023, and is timely. In her decision, ALJ Ferrer applied the familiar five-step sequential test for determining disability. At the outset, she noted that plaintiff was last insured on September 30, 2021. She found at step one that plaintiff has not engaged in substantial gainful activity since the alleged onset date. At step two she found that plaintiff suffers from severe impairments that impose more than minimal limitations on her ability to perform work functions, including degenerative joint disease of the bilateral thumbs, post-traumatic stress disorder, levoscoliosis, and vertigo. At step three, she 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. At step four, with the assistance of the vocational expert testimony, the administrative law judge concluded that plaintiff is capable of performing some of her past relevant work, including the assembler position, as generally performed pursuant to the DOT, or Dictionary of Occupational Titles, but not as actually performed in the past by plaintiff, and also could perform the position of solderer, production line job, which was identified as a light and unskilled position with an SVP of 2, and therefore, found it unnecessary, the ALJ found it unnecessary to proceed to step five and found that plaintiff was not disabled at the relevant times. As the parties know, the court's function in this case is limited and the standard that I apply is deferential. I must determine whether the resulting finding is supported by substantial evidence, defined as such relevant evidence as a reasonable person would find sufficient to support a conclusion, and I must decide whether correct legal principles were applied. As the court noted in Brault v. Social Security Administration Commissioner, 683 F.3d 443 from 2012, this is an extremely deferential standard. The Second Circuit confirmed that later in Schillo v. Kijakazi, 31 F.4th 64 from 2022. In this case, plaintiff has raised several contentions. The first one is that the administrative law judge failed at step two to find degenerative disc disease to be a medically determinable impairment. She argues that that is not harmless error. The second concerns the evaluation of medical opinions from LMFT Reynolds, Dr. Amanda Slowik, and Dr. Ferrin and Dr. Fernandez, two state agency physicians. Her third argument surrounds -- third and fourth argument really -- surround the vocational expert testimony. There's an allegation of a misclassification of past relevant work, the argument being that plaintiff performed in composite jobs, and also there's an alleged failure on the part of the administrative law judge to resolve apparent conflicts between the DOT and the vocational expert's testimony. The last argument, which was partially withdrawn at least, concerns the failure to obtain complete records from one of plaintiff's providers, Guthrie Medical Center. Turning first to step two, at step two of the sequential evaluation, a claimant must show that he or she has a medically determinable impairment that rises to the level of a severe impairment. An impairment fails to reach that threshold where it does not significantly limit a claimant's physical or mental ability to do basic work activities. The requirement to establish a severe impairment at step two is de minimus, and is intended only to screen out the truly weakest of cases. McIntyre v. Colvin, 758 F.3d 146 at 151, Second Circuit, 2014. The Second Circuit and other courts have also noted that the mere presence of a disease or impairment or establishing that a person has been diagnosed or treated for a disease or an impairment is not by itself sufficient to render a condition severe. In this case, the administrative law judge considered degenerative disc disease and discounted it as a medically determinable impairment on page 14 of the Administrative Transcript. I note, however, that Dr. Rita Figueroa, who examined the plaintiff on behalf of the agency, found that plaintiff does suffer from degenerative disc disease, that's at 467. The state agency physicians who spoke to plaintiff's physical condition, Dr. M. Angelotti and Dr. J. Rosenthal, did not characterize plaintiff's back, lumbar back condition as degenerative disc disease but did conclude that she suffers from lumbar spinal stenosis, that's at pages 100 and 124. I know it is plaintiff's burden to show medically determinable impairments and resulting limitations. I think in this case it was error not to include something, whether it's lumbar spinal stenosis or whether it's degenerative disc disease, at step two as severe. The Commissioner argues that any such error would be harmless because the administrative law judge found severe impairments and proceeded through the five-step sequential analysis. Plaintiff argues that that doesn't apply when the administrative law judge finds a condition is not a medically determinable impairment and cites Penny Lou S. v. Commissioner of Social Security, 2019 WL 5078603 from the District of Vermont, one of my friends and former colleagues John Conroy. In this case, I find that the error is harmless, and that Penny Lou S. is distinguishable. In that case, Judge Conroy reasoned that once the medically determinable impairment was discounted, the symptoms associated with it were no longer considered. This case is distinguishable because the administrative law judge concluded that the medical evidence in the record, including the results of examination of the spine and musculoskeletal system by the consultative examiner do show symptoms, citing Exhibit 6F, and goes on to say, "Thus, independent of their origin, all symptoms are considered herein in arriving at the residual functional capacity." So the fear that was expressed by Judge Conroy in Penny Lou S. was not present here, all symptoms were considered. So I find that any error is harmless. Plaintiff next challenges the evaluation of medical opinions. Because this application was filed after March 27, 2017, the case is subject to the revised regulations regarding opinion evidence. Under those regulations, the Commissioner no longer defers or gives any specific evidentiary weight, including controlling weight, to any medical opinions, including from medical sources, but instead considers whether those opinions are persuasive by primarily considering whether they are supported by and consistent with the record in the case. 20 C.F.R. Section 416.920c(a). Under the new regulations, an ALJ must articulate in his or her determination as to how persuasive the medical opinions of record are found and must explain how the administrative law judge considered the factors of supportability and consistency of those opinions. In this case, the significant opinions in the record primarily come from LMFT Michelle Reynolds and she gives two opinions. One is found on page 534 of the record, it is dated November 29, 2021, and is discounted because it speaks to a matter reserved to the Commissioner. It states merely that the plaintiff is temporarily unable to work and that that will be the case for six months or more, and I find that that was properly discounted by the administrative law judge. The second is dated July 1, 2022, it appears at 604 to 606 of the Administrative Transcript. Significantly, it notes that plaintiff suffers from marked limitations in the ability to interact with others, that's at page 605. The interesting thing is that the administrative law judge deals with these opinions at two points in her opinion, 26 to 27, and then again 23 to 24, when it comes to LMFT Reynolds' opinions. At page 24, significantly, it is stated that the July 1, 2022 statements are persuasive "only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence as described above, including the result of examination by the consultative examiner." The consultative examiner's report is also included in the record, that is from Dr. Amanda Slowik, August 25, 2021, at 458 to 462. In the medical source statement from Dr. Slowik, it states that the claimant's ability to interact adequately with supervisors, coworkers, and the public is markedly limited, that's at page 461. So it is, Dr. Slowik's opinion is consistent with LMFT Reynolds' opinion when it comes to interaction. When addressing Dr. Slowik's opinion that appears at page 27, the administrative law judge acknowledges the portion of the opinion that states that plaintiff's ability to interact adequately with supervisors, coworkers, and the public is markedly limited. Goes on to reject another marked limitation noted in Dr. Slowik's opinion, that of sustaining an ordinary routine or regulating her emotions, but does not explain why she apparently partially at least rejected the ability -- the marked limitation in the ability to interact with supervisors and coworkers. So given that, and particularly the statement about LMFT Reynolds' opinion being accepted only to the extent it's consistent with Dr. Slowik's opinion, I find error, and I am unable to meaningfully judicially review to determine whether the apparent rejection of that marked limitation is supported by substantial evidence. It is true that Dr. Ferrin and Dr. Fernandez, two state agency consultants, found only modest limitations or moderate limitations in those areas, Exhibits 2A-2-3, as the Commissioner argues. But those individuals did not examine the plaintiff. True, they examined the entire record including, among other things, LMFT Reynolds' opinions and Dr. Slowik's opinion, and so I'm always hesitant to reweigh -- and I'm not reweighing -- the medical opinions of record, because that would not be a proper court function, but I find that there was a duty to explain the rejection of that marked limitation so that the court could meaningfully assess whether it was proper and supported by substantial evidence. And while I agree that the Commissioner, as the Commissioner argues, that a state agency determination may provide substantial evidence, it is also clear that they are entitled to less weight than someone who has examined and/or treated the plaintiff. Dana F. on behalf of O.E.H. v. Berryhill, 2019 WL 7067060, Northern District of New York from December 23, 2019. And this is especially true in the case of a mental impairment. So I find error warranting remand. There are some concerning aspects of the step four determination. I've read, reread, and re-reread both plaintiff's testimony concerning her jobs and the vocational expert's testimony. The vocational expert testified that plaintiff was not engaged in a composite job. I agree with the Commissioner that it does not appear that there's a conflict, an obvious conflict between the DOT and the vocational expert's testimony that would call into play the requirement to elicit further explanation. But I would hope on remand that the ALJ and plaintiff's representative can elicit clear testimony about plaintiff's job duties because obviously the vocational expert was very confused and stated as much at one point, page 75 of the Administrative Transcript, in fact reversed his initial opinions and revisited them during his testimony. And I'm not going to address the records issue at this point. So to sum up, I am granting partial -- I am granting judgment on the pleadings to the plaintiff, vacating the Commissioner's determination, and remanding the matter for further consideration, and particularly with regard to the medical opinion evidence of record. Thank you both for excellent presentations, I hope you have a great day. MR. PECK: Thank you, your Honor. MS. LOMBARDI: Thank you, your Honor. (Proceedings Adjourned, 12:25 p.m.) I, JODI L. HIBBARD, RMR, 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 19th day of April, 2024. /S/ JODI L. HIBBARD

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