Maher v. Kijakazi

• Court: District Court, N.D. New York
• Decided: March 22, 2022
• Docket: 6:20-cv-01350
• Status: Unknown

Opinion

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

DAWN M.,

Plaintiff, v. Civil Action No. 6:20-CV-1350 (DEP)

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

OFFICE OF PETER M. HOBAICA B. BROOKS BENSON, ESQ. 2045 Genesee Street Utica, NY 13501

FOR DEFENDANT

SOCIAL SECURITY ADMIN. JESSICA RICHARDS, ESQ. 625 JFK Building 15 New Sudbury St Boston, MA 02203

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) and 1383(c)(3), are cross-motions for judgment on the

pleadings.1 Oral argument was heard in connection with those motions on March 16, 2022, 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.

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. 2) |The Commissioner’s determination that the plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. 3) The clerk is respectfully directed to enter judgment, based

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

U.S. Magistrate Judge Dated: March 22, 2022 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x DAWN M., Plaintiff, -v- 6:20-CV-1350 SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES March 16, 2022 100 South Clinton Street, Syracuse, New York For the Plaintiff: (Appearance by telephone) OFFICE OF PETER M. HOBAICA, LLC 2045 Genesee Street Utica, New York 13501 BY: B. BROOKS BENSON, ESQ. For the Defendant: (Appearance by telephone) SOCIAL SECURITY ADMINISTRATION JFK Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203 BY: JESSICA RICHARDS, 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: 10:22 a.m.) 3 THE COURT: Let me begin by thanking counsel for 4 excellent and spirited and comprehensive analyses, both written 5 and verbal. 6 Plaintiff has commenced this action pursuant to 42,

7 United States Code, Sections 405(g) and 1383(c)(3). The 8 background is as follows: Plaintiff was born in October of 9 1969. She's currently 52 years of age. She was 45 years old at 10 the alleged onset of disability on January 10, 2015. Plaintiff 11 stands 5'3" in height and has weighed approximately 210 pounds, 12 plus or minus, over time. Plaintiff has two adult children. 13 She currently resides in a transitional facility known as the 14 Hope House in Utica, New York. It is a facility intended for 15 long-term transition from inpatient to outpatient rehabilitation 16 over a period of six to nine months. She lives with a roommate 17 there. Plaintiff has a high school education and two 18 Associate's degrees, one in accounting and one in psychology. 19 Plaintiff has no driver's license as a result of at least two, 20 and possibly three, driving while intoxicated convictions. 21 Plaintiff stopped working in -- on any kind of

22 long-term basis on February 1, 2012. She was fired from that 23 position. She has held positions as a medical billing clerk, an 24 office manager, a manufacturing production assistant, and a 25 receptionist in various settings. She has what I would 1 characterize as failed work attempts, meaning of short-term 2 duration, with the Salvation Army in Rochester, New York in 3 2015, a Wendy's in 2017, and Aspen Dental in 2018. 4 Physically, although that is not the focus of 5 plaintiff's challenge in this case, she suffers from bilateral 6 hip issues including arthritis, she had a left hip injury

7 sustained on January 22, 2016, she was also status post carpal 8 tunnel syndrome release. She had undergone left and right 9 releases on separate dates in 2016. Plaintiff has been 10 prescribed a TENS unit and also a walker. 11 Mentally, plaintiff has been variously diagnosed as 12 suffering from depression or major depressive disorder, 13 posttraumatic stress disorder or PTSD, anxiety disorder, bipolar 14 disorder, borderline personality disorder, alcohol abuse 15 disorder (severe), and panic disorder. She has had multiple 16 suicide attempts, multiple hospitalizations, and rehabilitation 17 efforts. Plaintiff began binge drinking or self-medicating in 18 2011. She has maintained sobriety since December 24, 2018. 19 Plaintiff regularly sees both a psychiatrist and counselors. 20 She has been prescribed various medications, including 21 Gabapentin for pain, Trazodone for sleep, Wellbutrin, Effexor,

22 Venlafaxine, Vistaril, Naltrexone, Neurontin, and Mirtazapine. 23 In terms of activities of daily living, plaintiff is 24 able to dress, bathe, groom, cook, and prepare some food, clean, 25 do laundry, shop, take public transportation, read. She enjoys 1 music and coloring. 2 Procedurally, plaintiff had a previous application -- 3 two applications for disability benefits and SSI payments that 4 were filed on October 23, 2013, and dismissed on January 9, 5 2015. Those were not reopened. 6 Plaintiff filed Title II and Title XVI applications

7 again on February 16, 2016, alleging an onset date of 8 January 10, 2015, the day after dismissal of her earlier 9 applications. In her function report, she claims disability 10 based on bipolar disorder, PTSD, mood disorder, anxiety, 11 depression, arthritis, and left hip injury. A hearing was 12 conducted on March 21, 2019, by Administrative Law Judge 13 Jennifer Gale Smith to address plaintiff's applications for 14 benefits. On July 5, 2019, ALJ Smith issued an unfavorable 15 decision. That became a final determination of the agency on 16 August 28, 2020, when the Social Security Administration Appeals 17 Council denied plaintiff's request for a review. This action 18 was commenced on October 30, 2020, and is timely. 19 In her decision, ALJ Smith applied the familiar 20 five-step sequential test for determining disability. She noted 21 initially that plaintiff's last date of insured status was

22 March 31, 2017. At step one, she concluded that plaintiff had 23 not engaged in substantial gainful activity since January 10, 24 2015, although she noted failed work attempts subsequent to that 25 date. 1 At step two, ALJ Smith concluded that plaintiff 2 suffers from severe impairments, physical and mental, that 3 impose more than minimal limitations on her ability to perform 4 basic work activities, including osteoarthritis of the hips, 5 status post right carpal tunnel release, and obesity on the 6 physical side. And mentally, anxiety disorder, depressive

7 disorder, bipolar disorder, borderline personality disorder, 8 posttraumatic stress disorder, alcohol abuse, and substance 9 abuse disorder. 10 At step three, initially based on the opinion of 11 state agency consultant Dr. Mary Eileen Buban, she concluded 12 that in the presence of alcohol plaintiff would meet or 13 medically equal the listed presumptively disabling impairments. 14 She then proceeded to assess whether those listings would be met 15 in the absence of alcohol abuse and, once again based on an 16 opinion of Dr. Buban, concluded that plaintiff's conditions 17 would not meet or medically equal any of the listed 18 presumptively disabling conditions absent the presence of 19 alcohol, specifically considering listings 1.02, 12.04, 12.06, 20 12.08, and 12.15. 21 The Administrative Law Judge next surveyed the

22 evidence and concluded that plaintiff retains the residual 23 functional capacity, or RFC, to perform light work with both 24 physical and mental limitations. Pertinent to this case, the 25 mental limitations include the following: The claimant retains 1 the ability to work at simple routine and repetitive tasks in a 2 low stress job defined as occasional decisionmaking, occasional 3 judgment required, and occasional changes in the work setting. 4 The claimant should work at goal oriented work rather than 5 production pace work. The claimant should have occasional 6 contact with coworkers, supervisors, and the public.

7 Applying that residual functional capacity at step 8 four, the Administrative Law Judge concluded that plaintiff is 9 not capable of performing any of her past relevant work. 10 At step five, the Administrative Law Judge concluded 11 based on the testimony of a vocational expert that not 12 withstanding her limitations with the RFC determined by the ALJ, 13 plaintiff could perform work available in the national economy 14 and cited as representative occupations mail clerk, office 15 helper, and photocopy machine operator. The Administrative Law 16 Judge concluded that alcohol is a contributing factor material 17 to the determination of disability based again on Dr. Buban's 18 opinions and as I said before, concluded that with alcohol 19 plaintiff would meet or medically equal listing 12.04. 20 As, you know, the Court's function in this case is 21 limited to determining whether correct legal principles were

22 applied and substantial evidence supports the resulting 23 determination. Substantial evidence is defined as such relevant 24 evidence as a reasonable mind would find satisfactory to support 25 a conclusion. In its decision in Brault v. Social Security 1 Administration Commissioner, 683 F.3d 443 from the Second 2 Circuit, 2012, the circuit noted that this is an extremely 3 deferential standard. It's setting a high bar for a claimant. 4 It is more rigorous than the clearly erroneous standard. Under 5 the substantial evidence standard, the Court noted in Brault 6 once an ALJ finds a fact, that fact can be rejected only if a

7 reasonable factfinder would have to conclude otherwise. 8 In this case, plaintiff raises five basic 9 contentions. First, she challenges the rejection of the 10 treating source opinion from Dr. Samenfeld-Specht alleging that 11 it was entitled to controlling weight with regard to performance 12 at a consistent pace without an unreasonable number and length 13 of rest and the ability to deal with work stress. The second 14 argument again challenges the rejections of Dr. 15 Samenfeld-Specht's opinion regarding plaintiff being off task 16 and absent. Third, plaintiff claims error in finding that 17 alcohol abuse was a contributing factor to the disability 18 determination. Fourth, she claims that it was error to elevate 19 the opinion of a state agency consultant, Dr. Buban, over the 20 opinions of a treating source, Dr. Samenfeld-Specht. And five, 21 she alleges error in not recontacting Dr. Samenfeld-Specht to

22 clarify his opinions. 23 This case is governed by the former regulations based 24 on the date on which plaintiff's applications were filed. Under 25 those regulations, ordinarily the opinion of a treating 1 physician regarding the nature and severity of an impairment is 2 entitled to considerable deference provided it is supported by 3 medically acceptable clinical and laboratory diagnostic 4 techniques and is not inconsistent with other substantial 5 evidence, Veino v. Barnhart, 312 F.3d 578, Second Circuit 2002. 6 Such opinions are not controlling, however, if

7 they're contrary to other substantial evidence in the record, 8 including the opinions of other medical experts, Halloran v. 9 Barnhart, 362 F.3d 28, Second Circuit, 2004. And, of course, 10 where conflicts arise in the form of contradictory medical 11 evidence, their resolution is properly entrusted to the 12 Commissioner, Veino, 312 F.3d at 588. When an ALJ does not 13 afford controlling weight to a treating source's opinion, as 14 occurred in this case, she must apply several factors to 15 determine what degree of weight, if any, should be assigned to 16 the opinion. Those are set out at 20 C.F.R. Sections 404.1527 17 and 20 C.F.R. Section 416.927, and the circuit will sometimes 18 refer to those as the so-called Burgess factors. 19 The focus in this case, of course, as I said, is on 20 plaintiff's mental capabilities. Dr. Samenfeld-Specht provided 21 a medical source statement dated May 8, 2019, it appears at

22 pages 1996 to 2005 of the record. He is a board certified 23 psychiatrist. His opinion states that plaintiff is seriously 24 limited, which on the form is defined as between 11 and 25 15 percent of the time, in three areas. He also opines that 1 plaintiff would be off task 15 percent of the time and absent 2 approximately four times per month. I note that Dr. 3 Samenfeld-Specht opined that plaintiff did not meet the B 4 criteria of the listing analysis. In his opinion, Dr. 5 Samenfeld-Specht speaks to stress and indicates at 1999 that 6 Dawn reports she is unable to cope with sustained high stress

7 work environments and becomes overwhelmed if work pace or 8 demands are high. On page 2001, he circles several categories 9 of work components that the claimant would find stressful. 10 Many, if not most, of those are accommodated in the RFC finding 11 of the Administrative Law Judge. 12 The opinion of Dr. Samenfeld-Specht was discussed at 13 pages 41 to 42 of the Administrative Transcript by the ALJ. He 14 cited reason -- she cited, I should say, reasons why controlling 15 weight was not afforded to that. He afforded partial weight, 16 however -- she did. She noted that plaintiff [sic] had only 17 been treating the claimant for a few sessions in 2019. She 18 does -- he does not factor in issues of her alcohol abuse and 19 his estimate of the amount of time claimant would be off task, 20 absent from work, or need an unscheduled break once a week is 21 speculative.

22 The Commissioner is not arguing, as I read it, that 23 Dr. Samenfeld-Specht is not and does not qualify as a treating 24 source because of the number of treatment sessions, it is based 25 on four visits, February 27, 2019, March 12, 2019, April 2, 1 2019, and April 16, 2019. The number and length of the 2 treatment, however, is a relevant factor under 20 C.F.R. Section 3 404.1527(c)(2)(i). The, as plaintiff argues, being off task 4 15 percent or absent four times a month would be work 5 preclusive. The -- all of the serious limitations in the 6 opinion were -- could be accommodated with the exception of off

7 task and absenteeism. 8 I know that plaintiff has relied heavily on -- well, 9 relied on, I will say, citing broadly the decision in Lee G. v. 10 Commissioner of Social Security, 20 C.F.R. Section -- I'm sorry, 11 20 -- it is 2021 WL 22612 from the Northern District of New 12 York, January 4, 2021, from my colleague Magistrate Judge Daniel 13 J. Stewart. I find that that case is readily distinguishable. 14 In that case, the ALJ failed to acknowledge the existence of the 15 treating relationship, as well as frequency, length, nature, and 16 extent of the treatment, and did not provide other sufficient 17 reasons for his conclusion and therefore the treating source 18 rule was violated. This case is, in my view, distinguishable. 19 I note moreover that we're discussing moderate 20 limitations in mental functioning, which under Raftis v. 21 Commissioner of Social Security, 2018 WL 1738745, Northern

22 District of New York, April 6, 2018, is not per sé preclusive of 23 the ability to perform basic work functions. I also note that 24 Dr. Samenfeld-Specht's opinion is internally inconsistent 25 regarding being off task and absent. The doctor finds that 1 plaintiff has a limited but satisfactory ability, meaning less 2 than ten percent, to complete a normal workday and normal 3 workweek without interruptions and psychologically based 4 symptoms and limited but satisfactory to serious -- there's 5 checkmarks in both boxes -- with maintaining attention in 6 two-hour segments. The bottom line is, as the ALJ noted, Dr.

7 Buban reviewed all of plaintiff's medical records, including 8 pertinently Dr. Samenfeld-Specht's opinion, although her 9 resulting RFC, absent alcohol at page 2051, did not specifically 10 speak to extra breaks or time off task or absenteeism, it 11 provides a narrative RFC which provides a basis to conclude that 12 plaintiff is capable of performing work on a regular and -- 13 regular basis and full-time basis. 14 The ALJ relied on the opinion of Dr. Buban and did 15 not substitute her lay opinion for the opinions of Dr. 16 Samenfeld-Specht. I conclude that the treating source rule has 17 not been violated when the ALJ's decision is reviewed as a 18 whole, Estrella v. Berryhill, 925 F.3d 90, Second Circuit, 2019. 19 With regard to recontacting Dr. Samenfeld-Specht 20 concerning ambiguity, I'm not sure there is ambiguity, but in 21 any event, the regulations that apply as to recontacting medical

22 sources permits, but does not mandate, recontacting. Here, the 23 ALJ afforded more weight to Dr. Buban's opinion who reviewed Dr. 24 Samenfeld-Specht's opinion and I find no error. 25 The alcohol abuse protocol, as the Commissioner has 1 noted, SSR 13-2p provides guidance in evaluating cases involving 2 drug and alcohol addiction. Where there is medical evidence of 3 an applicant's drug or alcohol abuse or disability, inquiry does 4 not end with step five analysis, instead the Contract with 5 America Advancement Act adopted in 1996 requires that an 6 individual must not be considered disabled if alcoholism or drug

7 addiction would be a contributing factor material to the 8 Commissioner's determination that the individual's disabled. 9 The critical question then becomes whether the claimant would be 10 disabled if he or she stopped using drugs or alcohol. In such 11 an instance, the burden of demonstrating that substance abuse is 12 not a contributing factor to the disability determination rests 13 with the claimant, Cage v. Commissioner of Social Security, 692 14 F.3d 118, Second Circuit, 2012. 15 In this case, the Administrative Law Judge did go 16 through the required protocol. Here, he concluded -- she 17 concluded that in the presence of alcohol, the -- a listing 18 presumptively disabling impairment would be met and plaintiff 19 would be found disabled at step three with alcohol abuse and 20 properly stopped the inquiry at that step. She then concluded 21 that without alcohol, the B and C criteria would not be met and

22 that plaintiff has the ability or the RFC to perform work. That 23 was based on Dr. Buban's opinion, which was given great weight 24 at page 42. The ALJ cited reasons and had found her opinion to 25 be, frankly, more complete and thorough than in many I have 1 seen. She cited reasons and the evidence primarily from Dr. 2 Buban, but also Dr. Samenfeld-Specht in many respects, supports 3 the RFC when alcohol abuse is not present. 4 The claimant has suggested that it is improper to 5 elevate the opinions of a state agency non-examining consultant 6 over a treating source. Case law is to the contrary, Anselm v.

7 Commissioner of Social Security, 737 F. App’x 552 from the 8 Second Circuit, 2018, and Camille v. Colvin, 652 F. App’x 25, 9 from June 15, 2016. Dr. Buban reviewed the entire record and 10 listed in her opinions all of the records that were reviewed and 11 provided an RFC in narrative form on 2051, the Administrative 12 Law Judge thoroughly discussed the B and C criteria, and the 13 absence of substance abuse based on Dr. Buban, and the review of 14 the entire record. 15 I find that plaintiff has not sustained her burden of 16 demonstrating that the alcohol abuse was not a contributing 17 factor material to the issue of disability and that the 18 determination as to substance abuse is a contributing factor in 19 this case material to the determination of disability as 20 supported by substantial evidence. I find that the residual 21 functional capacity finding in most instances accommodates,

22 frankly, the limitations set forth in Dr. Samenfeld-Specht's 23 opinions, including plaintiff's ability to deal with stress and 24 to the extent it doesn't the ALJ properly explained why the 25 additional limitations were rejected, and Dr. Buban's opinion 1 provides ample substantial evidence to support that 2 determination. 3 In conclusion, I find no error and that the correct 4 legal principles were applied and the resulting determination is 5 supported by substantial evidence. Plaintiff has failed to 6 carry her burden of demonstrating greater limitations than were

7 found in the RFC, as was her burden. I therefore grant judgment 8 on the pleadings to the defendant and order dismissal of 9 plaintiff's compliant. 10 Thank you, both. I hope you have a good afternoon. 11 MR. BENSON: You, too. Thank you, Judge. 12 MS. RICHARDS: Thank you, your Honor. 13 (Time noted: 10:47 a.m.) 14 15 16 17 18 19 20 21 22

23 24 25 1 2 3 4 CERTIFICATE OF OFFICIAL REPORTER 5 6

7 I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, 8 NYRCR, Official U.S. Court Reporter, in and for the United 9 States District Court for the Northern District of New York, DO 10 HEREBY CERTIFY that pursuant to Section 753, Title 28, United 11 States Code, that the foregoing is a true and correct transcript 12 of the stenographically reported proceedings held in the 13 above-entitled matter and that the transcript page format is in 14 conformance with the regulations of the Judicial Conference of 15 the United States. 16 17 Dated this 21st day of March, 2022. 18 19 s/ Hannah F. Cavanaugh______________________ 20 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR 21 Official U.S. Court Reporter 22

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