Meechan v. Commissioner of Social Security

Opinion

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

VICTORIA M.,

Plaintiff, v. Civil Action No. 6:23-cv-763 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

OFFICE OF PETER W. ANTONOWICZ PETER W. ANTONOWICZ, ESQ. OF MID-NEW YORK, INC. 221 South Warren Street, Suite 310 Syracuse, NY 13202

FOR DEFENDANT

SOCIAL SECURITY ADMIN. GEOFFREY M. PETERS, ESQ. and OFFICE OF GENERAL COUNSEL JASON P. PECK, 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) and 1383(c)(3), are cross-motions for judgment on the

pleadings.1 Oral argument was heard in connection with those motions on August 29, 2024, 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: September 5, 2024 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK *************************************************** VICTORIA MEECHAN, Plaintiff, -v- 23-cv-763 COMMISSIONER OF SOCIAL SECURITY, Defendant. *************************************************** TRANSCRIPT OF TELEPHONIC PROCEEDING BEFORE THE HONORABLE DAVID E. PEEBLES August 29, 2024 445 Broadway, Albany, New York FOR THE PLAINTIFF: PETER W. ANTONOWICZ, ESQ. 148 West Dominick Street Rome, New York 13440 FOR THE DEFENDANT: JASON P. PECK, ESQ. 6401 Security Boulevard Baltimore, Maryland 21235 MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 THE COURT: Thank you. Plaintiff has commenced this proceeding pursuant to 42 United States Code, Sections 405(g) and 1383(c)(3) to challenge an adverse determination by the Commissioner of Social Security finding that she was not disabled at the relevant times and therefore ineligible for the benefits for which she applied. The background is as follows: Plaintiff was born in June of 1972. She is currently 52 years of age. She was 48 years old at the time of her application for benefits on October 21, 2020. Plaintiff lives in Utica, New York, in an apartment. She has custody of a daughter, although it's questionable whether she still does. At page 733, she states she lives alone; that's at page 50. There is also indication she may be engaged. I don't know what her current status is. Plaintiff is five-foot three inches in, height, weighs 155 pounds. She is a high school graduate and attended regular classes while in school. She also attended nursing school for some eight months. Plaintiff has a driver's license, and which was suspended at one point; that's at 727. She's right handed. Plaintiff stopped working in May of 2019. While working, she held various jobs, including as a Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 home care nurse and a sales associate and worked in a position, at page 284, that the vocational expert characterized as administrative assistant. She worked there for 15 years in that one position with various duties. Physically, she suffers from epilepsy or a seizure disorder, history of strokes, status post cerebral infarction and post transient cerebral ischemic attack. She has hereditary and idiopathic neuropathy. She has bilateral trochanteric bursitis, a history of hepatitis C, hypertension, asthma, emphysema, and history of cancer. She's had several hospitalizations and surgeries. Mentally, plaintiff suffers from variously described disorders, bipolar disorder, general anxiety disorder, major depressive disorder; however, she's had no psychiatric hospitalization. She does receive outpatient mental health treatment. Her activities of daily living include attending to her personal needs, cooking, doing general cleaning, laundry. She shops once a week with the assistance of her fiance. She watches television, listens to the radio, she does participate in social media, she socializes with friends, dines out. She can manage money, and she can take public transportation. Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 Plaintiff was previously addicted to opiates, opoid, opiates, and has had several bouts of drug treatment. She's last used, according to her, in July of 2020; that's at 725 of the administrative transcript. Procedurally, plaintiff applied for Title 16 benefits on October 21, 2020, alleging an onset date of May 28, 2019. At page 283, she claimed disability based on seizures, multiple strokes, brain damage, concentration loss, mobility issues and nerve damage. A hearing was conducted by Administrative Law Judge Bruce Fein on April 19, 2022. ALJ Fein issued an unfavorable decision on May 13, 2022, that became a final determination of the agency on May 3, 2023, under Social Security Administration Appeals Council denied plaintiff's application for review. This action was commenced on June 23, 2023, and is timely. In his decision, ALJ Fein applied the five-step sequential test for determining disability. Step one, he concluded plaintiff did not engage in substantial gainful activities since the date of her employment in her application. At step two, he found that she suffers from several severe impairments. I won't list them because it's not relevant to the two arguments being raised, rejecting certain other claimed impairments as being not Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 medically determinable or not severe. At step three, plaintiff was found not to meet or equal the listed presumptively disabling condition set forth in the commissioner's regulations. The ALJ considered listing 1.18, 11.02, 12.04 and 12.06. After reviewing the evidence, ALJ Fein concluded that notwithstanding her impairments, plaintiff retains the residual function capacity to perform sedentary work with the exception of some posture limitation, including, as plaintiff argued, the need to alternate sitting/standing positions at 30-minute intervals throughout the day. She should avoid concentrated exposure to unprotected heights, hazardous machinery, and operational control of moving machinery. From a mental health perspective, her work is limited to simple routine and repetitive tasks with only occasional interaction with coworkers, supervisors and the public. The claimant can work in a low stress job defined as only occasional decision making, changes in the work setting, and judgment required on the job. At step four, applying this RFC finding, ALJ Fein concluded that plaintiff is incapable of performing her past relevant work and proceeded to step five. Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 ALJ is -- as we will discuss, Fein noted that a potential borderline situation was -- is presented under the medical-vocational guidelines, which I will refer to as the grids, based on the fact that plaintiff was closely -- at the time of his decision, approaching advanced age. The administrative law judge, however, went on and with the benefit of the testimony from a vocational expert, concluded based on a hypothetical that was presented to vocational expert, that mirrored the RFC finding that plaintiff is capable of performing available work in the national economy, including, as a representative position, hand packer, production worker and production inspector and therefore was not disabled at relevant times. As to quote, as the parties know, the Court's function in this case is extremely limited to determining whether correct legal principles were applied in this case, and the resulting determination is supported by substantial evidence defined as such relevant evidence as a reasonable mind would find sufficient to support a fact. The Second Circuit has spoken on several occasions concerning the standard to be applied is initially or most notably in Brault versus Social Security Administration Commissioner, 683 Fd 3d. 443, Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 Second Circuit 2012, noting that it is an extremely deferential standard and specifically noting that once a finding of fact was made by an administrator law judge, that fact can be rejected only if -- if a reasonable fact finder would have to conclude otherwise. The standard is more recently reiterated in Schillo v Kijakazi, 31 F.4th 64 from the Second Circuit, 2022. In this case, plaintiff has raised two arguments. First, she alleges error in the administrative law judge not -- I'm sorry -- the commissioner not considering two statements that were submitted after the administrative law judge's decision and, secondly, she alleges error in the mechanical application of the H category set forth in the grids, given the fact that she was in close proximity to age 50 at the time of the decision. The new evidence at issue includes statements made by plaintiff's mother, Valerie Andrews, it's dated April 18, 2022, and describes plaintiff generally -- appears at page 42 to 43 of the record, describes plaintiff generally as anxious, fearful, depressed. She suffers from seizures and hallucinations and disorientation which continue. The second is from Dawn Schneider, who is Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 described as a friend, that is dated May 15th, 2022. It appears at 38 to 41 of the administrative transcript. Once again, it describes plaintiff's seizures, the fact that she experiences major depressive disorder, bipolar disorder, general anxiety disorder, suffers from panic attacks, memory loss, and nerve damages. The record reflects that these statements were received by the agency in July of 2022 after the date of the administrative law judge's decision; that's at page 41. The law is fairly clear when it comes to the consideration of after acquired or, in this case, submitted evidence. The regulations expressly authorize a claimant to submit new and material evidence to the appeals council when requesting review of an ALJ's decision; 20 CFR Section 404.970(b) and 416.1470(b). Perez v Chater, 77 F.3d 41 at 43; Second Circuit, 1996. To merit review of an administrative law judge's decision based on the new evidence, it must be new, material, and related to the period on or before the date of the hearing decision and must also present a reasonable probability that such evidence would change the outcome of the decision; 20 CFR Section 416.1570(a)(5). In this case, the plaintiff, and I think understands the error in this regard, has relied heavily Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 upon two cases that are not applicable. Collins v Commissioner of Social Security, 2020 Westlaw 6488744 from the Western District of New York, November 4th, 2020, and Lopez v Secretary of the Department of Health and Human Services, 728 F.2d 148 from the Second Circuit, February 16, 1984. Both of those cases involve testimony that was proffered to and rejected by the administrative law judge. In this case, the materials were received by the agency after the decision. In its denial of review, the Social Security Administration Appeals Council, at page 2 of the administrative transcript, stated the following: You submitted third-party late statements from Dawn Schneider, dated May 15, 2022, and Valerie Andrews, dated April 18, 2022. We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not exhibit this evidence. As I indicated before, one of the touchstones of a new evidence analysis is whether there is a reasonable probability that the new evidence would change the outcome and of course its burden, plaintiff's burden to show that; Karen R. v Berryhill, 2019 Westlaw 1284250, Northern District of New York, March 20, 2019. In this case, the plaintiff did not explain Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 how the statements would undermine the decision. I think she concedes that they are not inconsistent with the two statements, third-party statements that were before the administrative law judge, the administrative law judge specifically addressed the two statements that were before him at the -- at the time, and that's at page 24 of the administrative transcript, finding that he was not persuaded by third-party statements from the claimant's fiance and the claimant's sister, stating that they were not entirely consistent with the mental status examinations in the record and physical examinations documenting full strength, intact sensation and normal gait. I understand plaintiff's argument. Plaintiff's argument here is that four statements are more forceful than two, but I think this is a case similar to Tyler Age versus Commissioner of Social Security. The report and recommendation is -- appears at 2023 Westlaw 2838051, Northern District of New York, January 30th, 2023. Judge Dancks' report-recommendation was adopted at 2023 Westlaw 2643503, Northern District of New York, March 27, 2023. Judge Dancks, in her report and recommendations, noted correctly that the issue before the Court is whether the new evidence altered the weight Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 of the evidence before the ALJ so dramatically as to require the appeals council to take the case and went on to note that, like in this case, while plaintiff believes that his mother's and sister's personal observations would merit a change in the outcome, he fails to explain how that is. I believe that the -- there was no error in the appeals counsel's review or failure to review based on the new evidence and applying the -- the standard that the commissioner argues, I find no reasonable probability that the two additional statements would have altered the outcome. The administrative law judge was clearly aware of plaintiff's seizures, depression and anxiety, and I note, interestingly, that plaintiff testified that her seizures were not currently causing any limitations on working; that's at page 66. So I find no error in the failure to consider the new evidence and, moreover, find that it would not alter the outcome. The second argument is also very interesting. It relies on whether the administrative law judge should have applied the medical vocational guidelines or grids and should have advanced her from a category of a younger individual to one closely approaching advanced age. First of all, it's well established that the Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 commissioner can rely on the grids, I'm sorry, the -- can rely on the testimony of a vocational expert to testify -- to carry the commissioner's burden at step five, Sisson v Colvin, 2015 Westlaw 4878108, Northern District of New York, August 12th, 2015. Also Rosa v Callahan, 168 F.3d d 72, Second Circuit, 1999. In this case, the commissioner did rely on the testimony of a vocational expert to find that plaintiff was not disabled and specifically that she was capable of performing available work in the national economy. The plaintiff argues that this borderline case and the -- the administrative law judge should have advanced her age and applied medical vocational guidelines Rule 201.14, which would have directed a finding of disabled. The grids define a person under the grids, I should say, plaintiff falls in the category of a younger individual, 20 CFR Section 416.963, and that would be subsection C. That regulation also provides the following: We will not apply the age category mechanically in a borderline situation. If you are within a few days to a few months of reaching an older age category and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 the overall impact of all factors in your case. That's at 20 CFR Section 416.963(b). The grids take into account, among other things, a claimant's age, education, and work experience. In this case, the administrative law judge acknowledged the borderline situation, and at page 27 of the administrative transcript but opted not to advance plaintiff's age under the grids, stating the following: The vocational expert, the fact that the vocational factors in this case related to claimant's education, past work and residual functional capacity do not have an adverse impact beyond that already accounted for by the appropriate medical vocational rule. I agree that this is a borderline case under Second Circuit law. It appears that the Second Circuit recognizes anything up to six months as presenting a borderline case Jodi L. v the Commissioner of Social Security, 2022 Westlaw 1541461, Northern District of New York, May 16, 2022. But the grids have already weighed the relevant factors and plaintiff was able to -- unable to articulate precisely what additional vocational adversities beyond those already weighed by the grids would have applied in this case. Rule 201.14 and 201.21 weigh the same factors. Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 The decision of whether to advance in a borderline situation a claimant to a higher age category is within the discretion of the Administrative Law Judge Konwicki, the Berryhill, 2019 Westlaw 3162090, Western District of New York from July 16, 2029. I am unable to conclude that that abuse was -- that discretion was abused and that a reasonable fact finder would have to agree with the plaintiff. I also note, I'm not sure I understand plaintiff's argument. There's one argument that was made that because there is a sit/stand option included in the RFC, the -- there's an additional adversity. In my view, if anything, that means that the grids do not apply in this case because there is a -- or potentially does not because there is a limitation that is not accounted for under the grids and, in fact, the answer is that you then elicit testimony of a vocational expert with a hypothetical that tracks an RFC precisely, and in this case, that is exactly what was done. As I indicated before, under Sisson and Rosa, the commissioner is certainly entitled to rely on the testimony of a vocational expert to carry his burden of proof at step five and that was done in this case. So I find no error with regard to the step five determination. Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763 I conclude that plaintiff's arguments lack merit and that the resulting determination in this case is supported by substantial evidence and resulted from the application of proper legal principles, and I will therefore grant judgment on the pleadings to the defendant. Let me thank counsel for interesting arguments and presenting some issues that I don't see every day. I hope you have a good rest of your summer. Thank you. (Proceeding concluded.) * * * * * * * * * * * Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY MEEHAN v COMM. OF SOCIAL SECURITY - 23-cv-763

C E R T I F I C A T I O N

I, Lisa L. Tennyson, RMR, CSR, FCRR, 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. /s/ Lisa L. Tennyson Lisa L. Tennyson, RMR, RPR, FCRR

Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY