Martin v. Commissioner of Social Security

• Court: District Court, N.D. New York
• Decided: June 13, 2023
• Docket: 6:22-cv-00245
• Status: Unknown

Opinion

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

DOROTHY M.,

Plaintiff, v. Civil Action No. 6:22-CV-0245 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LAW OFFICE OF PETER ANTONOWICZ, ESQ. PETER W. ANTONOWICZ 148 West Dominick Street Rome, NY 13440

FOR DEFENDANT

SOCIAL SECURITY ADMIN. SHANNON FISHEL, ESQ. 6401 Security Boulevard Baltimore, MD 21235

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.1 Oral argument was conducted in connection with those motions on June 7, 2023, 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

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. 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: June 13, 2023 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------------------------x DOROTHY M.,

Plaintiff,

vs. 22-CV-245

Defendant. -------------------------------------------------x DECISION - June 7, 2023 the HONORABLE DAVID E. PEEBLES United States Magistrate-Judge, Presiding

APPEARANCES (by telephone)

For Plaintiff: PETER W. ANTONOWICZ, ESQ. 148 West Dominick Street Rome, NY 13440

For Defendant: SOCIAL SECURITY ADMINISTRATION 6401 Security Blvd. Baltimore, MD 21235 BY: SHANNON FISHEL, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: Let me begin my decision by thanking 2 you both for excellent written and oral presentations. 3 I have before me an action in which the plaintiff 4 has challenged an adverse determination by the Acting 5 Commissioner of Social Security finding that she was not 6 disabled at the relevant times and therefore ineligible for 7 the disability insurance benefits that she sought. 8 The action is brought pursuant to 42, United States 9 Code, Section 405(g). The background is as follows. 10 Plaintiff was born in November of 1966. She is currently 56 11 years of age. She was 51 years old at the alleged onset of 12 her disability on March 1, 2018. Plaintiff lives in a house 13 in Rome, New York, with her husband. She stands 5-foot 14 2-inches in height, and at relevant times weighed 15 approximately 226 pounds. Plaintiff has a twelfth grade 16 education and while in school attended regular classes. 17 Plaintiff stopped working on March 1, 2018, 18 according to her function report. While employed she worked 19 in accounts receivable, as an Arc counselor, as an overseas 20 travel coordinator position she held approximately ten years, 21 and she worked scheduling and setting up video conferences. 22 She also worked in 2018 and 2019 as a stay-at-home daycare 23 provider, although it did not -- the income generated from 24 that position did not rise to a substantial gainful activity 25 level, or SGA. Significantly, plaintiff collected 1 unemployment insurance benefits for three-quarters of 2020. 2 Plaintiff suffers physically from fibromyalgia; 3 left hip trochanteric bursitis/osteoarthritis; multilevel 4 degenerative disc disease; irritable bowel syndrome-C; 5 esophageal varices; gastroesophageal reflux disease, or GERD; 6 hyperlipidemia; obesity; depression; Type 2 diabetes; 7 nonalcoholic steatohepatitis, or NASH; nausea; and leg edema. 8 Plaintiff treats primarily with Dr. Daniel Goodman, 9 who has been her primary care provider since March of 2018. 10 She also sees physician's assistant, or PA, Marcy Gambino, as 11 well as other specialists, including a gastroenterologist, an 12 endocrinologist, a rheumatologist, and an orthopedic surgeon. 13 Plaintiff's activities of daily living include some 14 cooking, some cleaning. She can shower. She can dress, 15 although sometimes needs help in that area, watches 16 television, listens to the radio. She can read. She 17 socializes with friends. She can shop. She walks dogs, and 18 occasionally cares for her grandchildren. 19 Procedurally, plaintiff applied for Title II 20 benefits under the Social Security Act on January 10, 2020, 21 alleging an onset date of March 1, 2018. 22 At page 205 in her function report she claimed 23 disability based on fibromyalgia, fatigue, plantar fasciitis, 24 IBS-C, bilateral hip bursitis, carpal tunnel syndrome, 25 headaches, complications from breast reconstruction surgery, 1 and cirrhosis of the liver, or fatty liver. 2 A hearing was conducted on March 16, 2021, by 3 Administrative Law Judge Bruce Fein to address plaintiff's 4 application for benefits. ALJ Fein issued an adverse 5 decision on April 5, 2021. That became a final determination 6 of the Agency on February 1, 2022, when the Social Security 7 Appeals Council denied plaintiff's application for review. 8 This action was commenced on March 14, 2022, and is timely. 9 In his decision, ALJ Fein applied the familiar 10 five-step test for determining disability, first noting that 11 plaintiff was or will be insured under Title II through 12 December 31 of this year. 13 He then concluded at step one that plaintiff did 14 not engage in SGA after her onset date, again noting the 15 income from 2018 and 2019, but finding that that did not meet 16 SGA levels. 17 At step two ALJ Fein concluded that plaintiff 18 suffers from severe impairments that impose more than minimal 19 limitations on her ability to perform basic work functions, 20 including left hip trochanteric bursitis/osteoarthritis, 21 fibromyalgia, and multilevel degenerative disc disease. He 22 rejected plaintiff's IBS-C, diabetes, obesity, depression, 23 GERD, and others, including mental conditions, as not 24 sufficiently severe. Also specifically rejected a conclusion 25 by Dr. Goodman, plaintiff's primary physician, that 1 plaintiff's condition meets or medically equals listing 5.05 2 and is therefore a presumptively disabling condition, noting, 3 among other things, that Dr. Goodman did not treat plaintiff 4 for her liver disease. 5 At step three the administrative law judge 6 concluded that plaintiff's conditions do not, in fact, meet 7 or medically equal any of the listed presumptively disabling 8 conditions, specifically referencing 1.02, 1.04, 14.09, and 9 SSR 12-2p relating to fibromyalgia. After surveying the 10 available evidence, ALJ Fein concluded that plaintiff is 11 capable of performing less than the full range of sedentary 12 work, specifying that she cannot climb ladders, ropes and 13 scaffolds. She can occasionally climb ramps and stairs, 14 balance, stoop, kneel, crouch and crawl. She can frequently 15 handle and finger with bilateral hands. The claimant should 16 avoid concentrated exposure to extreme temperatures and 17 pulmonary irritants. 18 Applying that RFC finding, ALJ Fein concluded at 19 step four that plaintiff is capable of performing her past 20 relevant work as a travel agent, a telecommunication 21 specialist and accounting clerk, as both actually and as 22 generally performed in the national economy. 23 He also made an alternative finding at step five 24 that plaintiff is also capable of performing as a charge 25 account clerk and a surveillance system monitor, but noted 1 that there are only 962 available jobs as charge account 2 clerk, and 2,900 as surveillance system monitor, something 3 which I think everyone concedes would not suffice to support 4 a step five finding, it's not a sufficient number of 5 available jobs. 6 As you know, the Court's function in this case is 7 limited. The standard that I apply is extremely deferential. 8 I must determine whether correct legal principles were 9 applied and the result is supported by substantial evidence, 10 which is defined as such relevant evidence as a reasonable 11 mind would accept as adequate to support a conclusion. It is 12 a high bar for a claimant, as noted by the Second Circuit in 13 Brault versus Social Security Administration Commissioner, 14 683 F.3d 443, Second Circuit, 2012, a standard which has been 15 reiterated many times, including most recently in Schillo v. 16 Kijakazi, 31 F.4th 64, from April 6th, 2022. 17 In this case plaintiff has raised multiple 18 contentions. She claims that the residual functional 19 capacity finding is not supported, noting that there is no 20 medical source opinion provided by consultative examiner 21 Dr. Jenouri. She claims that it was improper for the 22 administrative law judge to rely on her receipt of 23 unemployment benefits as a basis to draw adverse inferences. 24 She argues there is no logical bridge given by the 25 administrative law judge between her activities of daily 1 living and the ability to perform work on an eight-hour day, 2 five-day-a-week basis. She argues that errors are harmful 3 because if plaintiff is unable to concentrate up to one-third 4 of the day, she would be limited to unskilled work and two 5 jobs in insufficient numbers at step five. 6 She also concludes that there is an error at step 7 two in not finding that her NASH constituted a severe 8 impairment, arguing that it resulted in fatigue which was not 9 properly considered by the administrative law judge. 10 Addressing first the step two argument, the 11 governing regulations provide that an impairment or 12 combination of impairments is not severe if it does not 13 significantly limit a claimant's physical or mental ability 14 to do basic work activity. That section goes on to describe 15 what is meant by the phrase basic work activities, defining 16 that term to include the abilities and aptitudes necessary to 17 do more jobs. 18 It is true that the second step requirement is 19 de minimis and intended to screen out only the truly weakest 20 of cases. However, the mere presence of a disease or 21 impairment or that establishing that a person has been 22 diagnosed or treated for a disease or impairment is not by 23 itself sufficient to establish a condition as severe. And, 24 of course, the burden is on the plaintiff to not only 25 establish her condition but also limitations related or 1 stemming from it. 2 Plaintiff testified to experiencing fatigue due to 3 her fibromyalgia. That's at page 40 of the Administrative 4 Transcript. The administrative law judge specifically 5 referenced fatigue when outlining plaintiff's claims at the 6 bottom of page 16 and the top of page 17 of the 7 Administrative Transcript. He found fibromyalgia, of course, 8 to be a severe impairment and proceeded to the remaining 9 steps of the sequential evaluation. So I find that any error 10 in that regard is harmless, and that fatigue was, in fact, 11 taken into consideration by the administrative law judge who 12 relied on the state administrative findings for his 13 determination. 14 Next, the argument surrounds the residual 15 functional capacity, and specifically the consideration of 16 plaintiff's subjective symptoms. Under the step two review 17 protocol applicable to Social Security cases for assessing 18 the claimant's subjective reports, an ALJ must first 19 determine whether an individual has a medically determinable 20 impairment that could reasonably be expected to produce the 21 alleged symptoms. If that finding is made, the ALJ must then 22 evaluate the intensity and persistence of those symptoms and 23 determine the extent to which they limit the claimant's 24 ability to perform work-related activities. 25 Social Security Ruling 16-3p sets out this in some 1 more detail and articulates factors to be considered, 2 including daily activities, or location, duration, frequency 3 and intensity of pain or other symptoms, factors that 4 precipitate or aggravate the claimant's symptoms, the type, 5 dosage, effectiveness and side effects of medication, any 6 treatment other than medication that is used to relieve the 7 symptoms, other measures to obtain relief of symptoms and any 8 other relevant factors. 9 In this case the administrative law judge relied on 10 plaintiff's activities of daily living, which is a proper 11 consideration. The fact that she was able to perform some 12 work in 2018 and 2019, he explained his reasoning at page 16 13 through 20. He relied on the receipt of unemployment 14 benefits, and although he did not specifically rely solely on 15 that, it is a proper consideration. In Wright versus 16 Berryhill, 687 F.App'x 45, from the Second Circuit, April 14, 17 2017, it was noted that a plaintiff's representation of 18 readiness and ability to work in connection with his receipt 19 of unemployment benefits is a proper factor. 20 The bottom line is a determination of what we used 21 to call credibility; the analysis of subjective symptoms 22 claimed by a plaintiff is entitled to considerable deference 23 if it is supported by substantial evidence, which I find to 24 be the case here. 25 There is also a claim that medical opinions were 1 not properly considered. Because plaintiff's application was 2 filed after March 27, 2017, this case is subject to the 3 amended regulations regarding opinion evidence. Under those 4 regulations, the Commissioner does not defer or give any 5 specific evidentiary weight, including controlling weight, to 6 any medical opinions, including those from medical sources. 7 But rather -- the plaintiff's medical sources, I should say. 8 But rather, will consider whether those opinions are 9 persuasive, primarily considering whether they're supported 10 by and consistent with the record in the case. 11 In this case Dr. Goodman, plaintiff's treating 12 physician, provided a medical source statement dated 13 October 22, 2020. It appears at pages 2034 through 2038 of 14 the Administrative Transcript. It is considerably more 15 limiting than the residual functional capacity. It finds 16 that plaintiff can only sit for thirty minutes at a time and 17 stand for twenty minutes at a time, can walk or stand less 18 than two hours, and sit less than -- about four hours in an 19 eight-hour workday. It would require more than ten 20 unscheduled breaks during an eight-hour workday. And it 21 opines that plaintiff would be likely absent more than four 22 days a month. 23 The administrative law judge considered that 24 opinion and discussed it at page 21 of the Administrative 25 Transcript and found it to be less persuasive. The reasons 1 given are; one, the extreme limitations are inconsistent with 2 the relatively benign findings in Dr. Goodman's and other 3 treatment provider notes, which were summarized earlier in 4 the decision; and two, it was noted that this provider does 5 not treat the plaintiff for the impairments identified as the 6 cause of the restrictions, noting instead that the plaintiff 7 was treated by a gastroenterologist, a rheumatologist and an 8 endocrinologist. 9 I find that if the decision is read as a whole, 10 there is no violation of the regulations. The other opinions 11 relied on and referenced in the decision include from Drs. C. 12 Krist from July 14, 2020, a non-examining state agency 13 consultant, and Dr. J. Koenig, from October 2, 2020, also a 14 non-examining state agency consultant. They are similar, and 15 it was noted that they are persuasive, although the 16 administrative law judge found the plaintiff more limited 17 than opined by those two doctors. 18 And then there is a medical source of what would be 19 normally an opinion from Dr. Gilbert Jenouri, dated July 7, 20 2020, who examined the plaintiff. It appears at 1931 to 1934 21 of the Administrative Transcript. In his opinion Dr. Jenouri 22 made several observations that were what I would consider to 23 be positive findings; plaintiff's gait was unsteady, can walk 24 on heels and toes with difficulty, can squat only 70 percent. 25 In terms of musculoskeletal there are also limitations in 1 range of motion noted, and there are trigger points for 2 fibromyalgia, including bilateral shoulders and bilateral 3 lumbar area. There is no medical source statement, 4 unusually. On page 1934 it abruptly ends with a diagnosis 5 and a statement, "dictation ended here." 6 The court in Townsend versus Commissioner of Social 7 Security, 2018 WL 6697001, from the Western District of 8 New York, noted the following: A complete consultative 9 examination report includes the claimant's primary 10 complaints, a description of the history of those complaints, 11 examination findings, laboratory or other test results, a 12 diagnosis and prognosis, and a statement about what the 13 claimant can do despite her impairments. 14 I recognize, as the Commissioner has argued, that 15 the controlling regulation 20 CFR Section 404.1519n 16 specifically notes that, "The medical report must be complete 17 enough to help us determine the nature, severity, and 18 duration of the impairment, and residual functional capacity. 19 The medical source's report of the consultative examination 20 should include the objective medical facts as well as 21 observations and opinions." It goes on to say, however, as 22 the Commissioner has argued, "Although we will ordinarily 23 request a medical opinion as part of the consultative 24 examination process, the absence of a medical opinion in a 25 consultative examination report will not make the report 1 incomplete." In this case I think it was error not to 2 recontact Dr. Jenouri. I think this was a complete oversight 3 on his part, and I think it was harmful error. 4 Dr. Goodman found limitations on, among other 5 things, plaintiff's ability to sit for six hours as required 6 and sedentary work. Dr. Goodman opined four. He also 7 imposed greater limitations on the ability to lift and carry. 8 And I think this is significant because the ALJ rejected, or 9 I should say found Dr. Krist's and Dr. Koenig's opinions to 10 be persuasive but found that the plaintiff is more limited. 11 The question is how much more and on what basis did the ALJ 12 make that determination? Did he interpret the raw data from 13 Dr. Jenouri's opinion or from the medical record? In my view 14 Dr. Jenouri should have been contacted and asked for a 15 medical source statement that would have provided a basis for 16 the residual functional capacity determination. 17 So I think this is harmful error. There is no 18 medical opinion on point supporting the residual functional 19 capacity. I think remand is required. I don't find any 20 persuasive proof of disability, but I will grant judgment on 21 the pleadings to the plaintiff, vacate the Commissioner's 22 determination, and remand the matter for further 23 consideration consistent with this opinion. 24 Thank you both for excellent presentations. I hope 25 you have a good afternoon. Decision - 22-cv-245 - 6/7/2023 14

1 * * * 2 3 CERTIFICATION 4 5 I, EILEEN MCDONOUGH, RPR, CRR, Federal Official 6 Realtime Court Reporter, in and for the United States 7 District Court for the Northern District of New York, 8 do hereby certify that pursuant to Section 753, Title 28, 9 United States Code, that the foregoing is a true and correct 10 transcript of the stenographically reported proceedings held 11 in the above-entitled matter and that the transcript page 12 format is in conformance with the regulations of the 13 Judicial Conference of the United States. 14 15 16 17 Leen MeDoneugh 18 EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter 19 20 21 22 23 24 25