Mikoda v. Kijakazi

• Court: District Court, N.D. New York
• Decided: September 29, 2021
• Docket: 3:20-cv-00271
• Status: Unknown

Opinion

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

SARAH M.,

Plaintiff, v. Civil Action No. 3:20-CV-0271 (DEP)

KILOLO KIJAKAZI, Acting Commissioner of Social Security,1

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LACHMAN GORTON LAW FIRM PETER A. GORTON, ESQ. P.O. Box 89 1500 East Main Street Endicott, New York 13761-0089

FOR DEFENDANT

SOCIAL SECURITY ADMIN. DANIEL S. TARABELLI, ESQ. 625 JFK Building 15 New Sudbury St Boston, MA 02203

1 Plaintiff=s complaint named Andrew Saul, in his official capacity as the Commissioner of Social Security, as the defendant. On July 12, 2021, Kilolo Kijakazi took office as the Acting Social Security Commissioner. 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) and 1383(c), are cross-motions for judgment on the pleadings.2

Oral argument was conducted in connection with those motions on September 28, 2021, 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

2 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. 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: September 29, 2021 Syracuse, NY

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

Plaintiff,

vs. 3:20-CV-271

KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on September 28, 2021, 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: LACHMAN GORTON LAW FIRM Attorneys at Law P.O. Box 89 1500 East Main Street Endicott, New York 13761-0089 BY: PETER A. GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION 625 JFK Building 15 New Sudbury Street Boston, Massachusetts 02203 BY: DANIEL S. TARABELLI, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (The Court and all counsel present by 2 telephone.) 3 THE COURT: Thank you both for excellent 4 presentations. I enjoyed this case, it presents some 5 interesting legal and factual issues. 6 Plaintiff has commenced this suit pursuant to 42 7 United States Code Sections 405(g) and 1383(c)(3) to 8 challenge an adverse determination by the Commissioner of 9 Social Security. 10 The background is as follows: Plaintiff was born 11 in April of 1981 and is currently 40 years of age. She was 12 30 at the alleged onset of her disability on May 1, 2011. 13 Plaintiff stands 5 foot, 7 inches in height and has weighed 14 at various times between 150 and 170 pounds. Plaintiff lives 15 in an apartment in the Binghamton, New York area, most 16 recently it looks like Chenango Forks. Plaintiff has twin 17 sons that are nine years of age by my calculations and shares 18 custody of those twin sons with the father. Plaintiff has a 19 high school diploma and a college Bachelor of Science degree 20 in psychology with a minor in sociology. While in school she 21 attended regular classes. Plaintiff is right-handed and 22 drives. 23 Plaintiff stopped working on May 1, 2011. Her past 24 work endeavors have included as a bartender, laborer/cleaner, 25 restaurant manager, Medicare coordinator, mental health aide 1 and case manager for New York State. Since 2011, she has 2 engaged in some limited work including as a cashier and 3 delivery person for a pizza restaurant in 2013, and as a 4 part-time waitress in November 2019. 5 Plaintiff does not suffer from any severe physical 6 impairments. Mentally she does suffer from bipolar II 7 disorder, substance abuse disorder including heroin, alcohol, 8 and cocaine and marijuana use and abuse, depression and 9 anxiety. Plaintiff claims to have been sober since 10 October 29, 2017. Plaintiff was hospitalized from 11 September 23 to September 27 in 2008. The records appear at 12 361 to 370 of the administrative transcript. She was 13 hospitalized for depression, suicidal thinking, and alcohol 14 abuse. She also spent from December 2017 to March 2018 in 15 St. Joseph's Addiction Recovery Center as a result of a drug 16 court sentence. Plaintiff was admitted to CPEP voluntarily 17 from June 2 to 6, 2016, that appears at 728 to 736 of the 18 administrative transcript. That was for depression, suicidal 19 thoughts, and drug relapse. Plaintiff undergoes therapy 20 every two weeks. She receives treatment from Dr. Mahfuzur 21 Rahman, a psychiatrist, and more recently, since April of 22 2016, Dr. Robert Webster who she sees one time per month. He 23 practices with Family & Children's Services. Her primary 24 care provider is through United Health Services. 25 Plaintiff's activities of daily living include, she 1 can bathe, groom herself, dress, cook, clean, do laundry, 2 drive, shop, she visits with friends and family, cares for 3 children, her two sons, she works in her garden, she does 4 greenhouse work, arts and crafts. She has been a part-time 5 waitress as I previously indicated, she has been a volunteer 6 including at Urban Farms, Catholic Charities, and VINES. She 7 also has undertaken a computer class. 8 Medications prescribed to the plaintiff include 9 Abilify, Vistaril as needed, Zoloft, Wellbutrin, trazodone, 10 and naltrexone. She reports no side effects from her 11 medications. Plaintiff smokes one pack per day according to 12 445 of the administrative transcript. 13 Procedurally, plaintiff applied for Title II and 14 Title XVI benefits on January 13, 2014, alleging an onset 15 date of May 1, 2011. In her function report, page 274, she 16 claims disability based on depression, high anxiety, bipolar 17 disorder, borderline personality disorder, and being 18 overwhelmed. 19 A hearing was conducted on August 2, 2016 by 20 Administrative Law Judge Barry Ryan to address plaintiff's 21 application for benefits. A supplemental hearing was 22 conducted on November 10, 2016. Following that hearing, ALJ 23 Barry Ryan retired and the matter was transferred to 24 Administrative Law Judge Kenneth Theurer who conducted 25 another hearing on May 25, 2017. ALJ Theurer issued an 1 unfavorable decision on June 29, 2017. The matter was 2 remanded, however, after an action was commenced in this 3 court based on the stipulation of the parties by order signed 4 by Magistrate Judge Hummel on January 29, 2019. On May 15, 5 2017, the Social Security Administration Appeals Council 6 issued a remand order for, among other things, evaluation of 7 a medical source statement from Dr. Robert Webster from 8 May 23, 2017. A hearing was conducted on November 25, 2019, 9 at which time the record was held open at plaintiff's 10 request, although no records were ultimately received. On 11 December 23, 2019, Administrative Law Judge Theurer issued 12 another unfavorable decision. This action was timely 13 commenced on May 11, 2020. 14 In his decision, the ALJ applied the familiar 15 five-step sequential test for determining disability. He 16 first noted that plaintiff was insured through March 31, 17 2016. He found that plaintiff had not engaged in substantial 18 gainful activity since May 1, 2011, noting that she did 19 perform some work after that time. 20 In step two, ALJ Theurer concluded that plaintiff 21 suffers from severe impairments that impose more than minimal 22 limitations on her ability to perform basic work activities, 23 including stable bipolar II disorder, cocaine use disorder, 24 and opioid use disorder. 25 At step three, he concluded, however, that 1 plaintiff's conditions do not meet or medically equal any of 2 the listed presumptively disabling conditions set forth in 3 the regulations, specifically considering Listing 12.04. 4 The ALJ next concluded that plaintiff retains the 5 residual functional capacity or RFC to perform a full range 6 of work at all exertional levels with several nonexertional 7 limitations, primarily addressing her mental conditions. 8 Applying that RFC, the administrative law judge concluded 9 that plaintiff is not capable of performing her past relevant 10 work. 11 At step five, the ALJ concluded based on the 12 testimony of a vocational expert that plaintiff is capable of 13 performing other available work in the national economy, 14 citing as representative positions those of a router, a 15 collator operator, and a kitchen helper/dishwasher, and 16 therefore concluded that plaintiff was not disabled at the 17 relevant times. 18 The court's function in this case, of course, is to 19 determine whether correct legal principles were applied and 20 the resulting determination is supported by substantial 21 evidence which is defined as such relevant evidence as a 22 reasonable mind would find sufficient to support a 23 conclusion. The standard is extremely rigid and deferential. 24 The Second Circuit noted in Brault v. Social Security 25 Administration Commissioner, 683 F.3d 443 from 2012 that the 1 standard is rigid and more deferential than even the clearly 2 erroneous standard. In that case the court also noted that 3 under the substantial evidence standard, once an ALJ finds a 4 fact, it can be rejected only if a reasonable fact finder 5 would have to conclude otherwise. 6 Plaintiff raises several contentions in this case. 7 First, she challenges the weight given to Dr. Webster's 8 opinion as a treating source and argues also that the 9 administrative law judge did not rely on other medical 10 opinions to reject the reasoning and did not meet the 11 overwhelmingly compelling standard. 12 Second, she argues that it is improper to accord 13 great weight to the opinion of a nonexamining physician, 14 Dr. Lieber-Diaz. 15 Third, she argues it is improper to accord great 16 weight to the examining, one-time examining consultant 17 Dr. Hartman. 18 Fourth, she argues that the residual functional 19 capacity fails to account for her limitations in 20 concentration, persistence, and pace. 21 Five, she argues that the administrative law judge 22 should have considered whether there was a closed period of 23 disability. 24 And six, that because of these errors, the argument 25 is that the step five determination, at which the 1 Commissioner obviously bears the burden of proof, was 2 infected. 3 I note that first, addressing the weighing of 4 medical opinions, the overarching consideration of course is 5 that even that, the Second Circuit recognizes that it is for 6 an administrative law judge in the first instance to weigh 7 conflicting medical opinions, Veino v. Barnhart, 312 F.3d 8 578. 9 The first opinions that are at issue originated 10 from Dr. Robert Webster, a treating source. On May 23, 2017, 11 Dr. Webster opined that plaintiff is markedly limited in the 12 ability to complete a normal workday and workweek without 13 interruptions from psychological-based symptoms and to 14 perform at a consistent pace without an unreasonable number 15 and length of rest periods. He also opined that plaintiff 16 would likely be off task more than 33 percent of the day and 17 absent three or more days per month. The form is a check-box 18 form, there's minimal explanation other than to cite the 19 diagnosis and the medications that the plaintiff is on and 20 noting some potential side effects. That appears at 960 to 21 961 of the administrative transcript. 22 The second is from Dr. Webster, June 20, 2019. It 23 appears at 974 of the administrative transcript, and it 24 indicates plaintiff is limited in the ability to work to 15 25 to 20 hours per week and that she is moderately limited in 1 several areas, including understand and remember 2 instructions, maintain attention and concentration, make 3 appropriate decisions when faced with unfamiliar or unplanned 4 circumstances, maintain socially appropriate behavior, and 5 interacting appropriately with others in a work setting. 6 The opinions are discussed by Administrative Law 7 Judge Theurer at 748, and given "less weight." Obviously, 8 Dr. Webster is the treating source, the application having 9 been filed -- applications for benefits having been filed 10 prior to March 2017, the former regulations control. Under 11 those regulations, the opinion of a treating source regarding 12 the nature and severity of an impairment is entitled to 13 considerable deference if supported by medically acceptable 14 clinical and laboratory diagnostic techniques and not 15 inconsistent with other substantial evidence. Such opinions 16 are not controlling, however, if they are contrary to other 17 substantial evidence in the record, including the opinions of 18 other medical evidence. Where conflicts arise in the form of 19 contradictory medical evidence, as I previously indicated 20 under Veino, the resolution is properly entrusted to the 21 Commissioner. 22 I note that the Commissioner argues and is correct 23 that the limitation of 15 to 20 hours per week is an opinion 24 on a matter entrusted and reserved to the Commissioner. 25 Michael C. v. Commissioner of Social Security, 2018 WL 1 4689092 from the Northern District of New York, 2018. 2 So under the regulations, to reject Dr. Webster's 3 opinion, the Commissioner must -- the administrative law 4 judge must rely on sufficiently substantial medical opinions 5 or articulate overwhelmingly compelling lay explanation. 6 Riccobono v. Saul, 796 F.App'x 49 from March 4, 2020. 7 I acknowledge the Commissioner's argument 8 concerning the overwhelmingly compelling language standard 9 and the request for a stay of this action. As you will see 10 from the rest of my decision, I am not relying on the 11 overwhelmingly compelling language in remanding this matter. 12 I am relying on the fact that the administrative law judge 13 did not rely on sufficiently substantial medical opinions 14 contrary to those of Dr. Webster, so I will deny 15 Commissioner's request for a stay. 16 I acknowledge that Dr. Webster's opinions are 17 devoid of much explanation and, as such, are marginally 18 useful, but they are supported by at least some of the 19 treatment records. The fact that they are not supported by 20 others that are cited by the Commissioner could provide a 21 proper basis to deny controlling weight, as the Commissioner 22 has argued. Smith v. Berryhill, 740 F.App'x 721 from the 23 Second Circuit, 2018, and Kenneth S. v. Commissioner of 24 Social Security, 2019 WL 1332317 from the Northern District 25 of New York, 2019. However, as I indicated, and as will be 1 seen, I don't believe that the opinions relied on by the 2 administrative law judge to reject Dr. Webster's opinions, 3 those of the treating source, were sufficiently substantial. 4 The first of those of course, Dr. K. Lieber-Diaz, 5 opinion from July 28, 2014. In his opinion -- or hers, 6 Dr. Lieber-Diaz indicates that the claimant is able to 7 understand, execute, and remember simple instructions and 8 work-like procedures. Claimant can maintain attention and 9 concentration for at least two-hour intervals, the claimant 10 is able to sustain a normal workday and workweek and maintain 11 a consistent pace. The claimant may have some difficulty 12 responding to supervisors and coworkers appropriately and may 13 have difficulty in dealing with the public. The claimant can 14 adapt to changes in a routine work setting and can use 15 judgment to make simple work-related decisions in low-contact 16 personal setting. In the worksheet portion of the opinion, 17 the doctor indicates that plaintiff is moderately limited in 18 her ability to maintain attention and concentration for 19 extended periods, and in her ability to complete a normal 20 workday and workweek without interruptions from 21 psychologically-based symptoms and to perform at a consistent 22 pace without an unreasonable number and length of rest 23 periods. Dr. Lieber-Diaz's opinion appears at Exhibit 3A, 24 which was included in the record, and 4A, 66 through 88 of 25 the administrative transcript. 1 The administrative law judge discussed that opinion 2 and gave it great weight at 747 to 748. But as plaintiff 3 argues, the opinion came prior to the 2016 CPEP admission and 4 plaintiff's addiction inpatient treatment from December 2017 5 to March of 2018. I believe it was error to elevate this 6 nonexamining physician's opinion from 2014 over the opinion 7 of Dr. Webster from 2017 and 2019. Quinn v. Colvin, 2016 WL 8 7013471. I will acknowledge that Quinn was a case out of the 9 Middle District of Pennsylvania and it relied on Third 10 Circuit precedent, specifically stating the Third Circuit has 11 not upheld any instance in any precedential opinion in which 12 an administrative law judge has assigned less than 13 controlling weight to an opinion rendered by a treating 14 physician and more weight to an opinion from a nontreating 15 nonexamining examiner who did not review a complete case 16 record. I acknowledge again this is based on Third Circuit 17 precedent, but I also believe the reasoning applies fully 18 well here. 19 I do reject the plaintiff's argument, by the way, 20 that plaintiff has waived any argument that the opinion is 21 not entitled to great weight and I also reject the argument 22 that it is entitled to less weight based on Dr. Lieber-Diaz's 23 status as a psychologist or lack of evidence with the Social 24 Security program. Lack of evidence of it. 25 The two-hour interval portion of the opinion 1 doesn't appear to be based on anything in the record that has 2 been cited, and in that regard, this case is similar to 3 Stacey v. Commissioner of Social Security, 799 F.App'x 7 from 4 the Second Circuit 2020. 5 I believe, simply stated, it was error to elevate 6 Dr. Lieber-Diaz's opinion over those of the treating source, 7 Dr. Webster. He was missing six full years of records, he 8 gave an insufficient explanation of his mental residual 9 functional capacity finding, and there is an insufficient 10 explanation of the basis to discount it. When you consider 11 the factors of 20 C.F.R. Section 404.1527(c), I believe in 12 the end it is entitled very little weight. 13 And I do note as a backdrop, in its remand order, 14 the Social Security Administration Appeals Council 15 specifically directed the administrative law judge to provide 16 rationale with specific references to evidence of record in 17 support of assessment of limitations, that's at page 831 of 18 the administrative transcript. As I indicated previously -- 19 this case is I believe distinguishable from Reed, by the way, 20 which is Reed v. Commissioner of Social Security, 2018 WL 21 1183382 from the Northern District of New York 2018. In that 22 case, the administrative law judge also relied on the 23 treating source treatment notes and the two nonexamining 24 physicians had reviewed virtually all of the treatment notes 25 except two from 2014. Here, Dr. Lieber-Diaz missed six years 1 of records and significant intervening events. 2 The other opinion of record that was addressed by 3 the administrative law judge is from Dr. Brett Hartman, a 4 psychologist. It was dated July 17, 2014, appears at pages 5 440 through 444 of the administrative transcript. It was 6 rejected. I reject the argument again by plaintiff that it 7 should be discounted based on lack of any evidence of 8 Dr. Hartman's program expertise or the duration of the exam, 9 which is speculative. 10 In his medical source statement, Dr. Hartman opined 11 that plaintiff is able to follow and understand simple 12 directions, she was able to perform simple tasks. She has a 13 fair ability to learn new tasks and a fair ability to perform 14 complex tasks independently. She has mild difficulty 15 maintaining attention and concentration, she has mild 16 difficulty making appropriate decisions. She has mild to 17 moderate difficulty maintaining a regular schedule. She has 18 mild to moderate difficulty relating adequately with others. 19 She has moderate problems dealing appropriately with normal 20 stressors of life. 21 The opinion was discussed at page 747 of the 22 administrative transcript by ALJ Theurer. Once again, this 23 opinion is from 2014. It predates much history of which 24 Dr. Hartman could not possibly have been aware. I find it is 25 not sufficiently substantial to overcome a treating source's 1 opinion. 2 So in -- I will note one thing addressing 3 plaintiff's argument that a closed period should have been 4 considered. That argument I believe has been waived. Riker 5 v. Commissioner of Social Security, 2018 WL 2464446 from the 6 Northern District of New York, June 1, 2018, and Colling v. 7 Barnhart, 254 F.App'x 87 from the Second Circuit, 2007. 8 I believe the Commissioner erred in the weighing of 9 medical opinions in this case and I believe the RFC is 10 therefore not supported and the step five determination is 11 consequently infected. I think this matter should be 12 returned with some sort of consideration to recontacting 13 Dr. Webster and/or a new consultative examination which can 14 be conducted now that the plaintiff has been through 15 rehabilitation and supposedly sober. And if there's a 16 finding of disability and a finding that there may have been 17 contributory factors, including alcohol or substance abuse 18 issues, then of course the Commissioner should also look at 19 whether the contract with America Advancement Act analysis 20 should be performed. 21 So I will grant judgment on the pleadings to the 22 plaintiff and remand the matter. Further, I don't find 23 persuasive evidence of disability and therefore I will not 24 make a directed finding of disability but instead remand for 25 further proceedings consistent with this decision. 1 Thank you both for excellent presentations. Hope 2 you enjoy the rest of your day. 3 MR. GORTON: Thank you, your Honor. 4 MR. TARABELLI: Thank you, your Honor. 5 (Proceedings Adjourned, 2:38 p.m.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 29th day of September, 2021. 17 18 19 /S/ JODI L. HIBBARD

20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25