Miller v. Saul

Opinion

LISA M.,

Plaintiff, Civil Action No. 5:19-CV-0764 (DEP) v.

ANDREW M. SAUL, Commissioner of Social Security,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

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

FOR DEFENDANT HON. GRANT C. JAQUITH RONALD MAKAWA, ESQ. United States Attorney Special Assistant U.S. Attorney P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198

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 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on June 23, 2020, 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. 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.

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. 3) The clerk is respectfully directed to enter judgment, based

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

David E. Peebles U.S. Magistrate Judge Dated: June 29, 2020 Syracuse, NY

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

Plaintiff,

vs. 3:19-CV-764

ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on June 23, 2020, 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 P.O. Box 89 1500 E. Main St. Endicott, New York 13761-0089 BY: PETER A. GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of the General Counsel JFK Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203 BY: RONALD MAKAWA, 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 counsel present by telephone.) THE COURT: I have enjoyed working with you on this case and appreciate the excellent written and oral presentations by counsel. 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 plaintiff was not disabled at the relevant times and therefore ineligible for the benefits for which she's sought. The background is as follows: Plaintiff was born in January of 1974 and is currently 46 years of age. Plaintiff was 40 years old at the alleged date of the onset of her disability on September 1, 2014, and 44, if I can read my notes correctly, at the time of the administrative law judge's decision in August of 2018. Plaintiff is 5 foot -- 5 feet tall in height and weighs 118 pounds. She is divorced and rents a room in a house in Endicott, New York. The record is equivocal as to whether she previously lived with a boyfriend. There's a suggestion at Dr. Shah's notes that she did and that she was moving out on her own, page 370, and in October 2016 there's an indication on 384 that she was living with her boyfriend. She denied it, however, at the time of the hearing. Plaintiff has a GED. The record is again equivocal as to whether she attended regular or special education classes. In her function report at 177 she indicated regular classes. At page 291 she told Dr. Shah that she was in special education. Plaintiff has one semester of post-high school education in the field of criminal justice. She also underwent tax preparation training. Plaintiff is right-handed. She has a driver's license but no vehicle. Plaintiff stopped work on September 1, 2014. According to her hearing testimony at page 43 she was fired after a disagreement with a supervisor. As the administrative law judge noted, plaintiff has a somewhat sporadic employment history that consists of working in various positions including as a tax preparer, an electronics recycle facility, a cashier and a stock person at several places, mostly could be described as convenience stores, and as a pizza and sub preparation and cook. Physically plaintiff suffers from several diagnosed impairments including neck pain and cervicalgia. There is an indication at page 242 of the administrative transcript she was diagnosed with Lyme disease. She experiences numbness, tingling, pain in her legs, feet swelling, peripheral neuropathy, plantar callous lesions which were excised in March of 2017, and a left foot fracture of a foot bone, the fifth phalanx bone. She also had laser ablation in November of 2017 for the plantar callous lesions. Mentally plaintiff suffers from history of marijuana and crack cocaine abuse. She has apparently maintained sobriety since sometime around 2011. She has been diagnosed with various other mental conditions including bipolar II disorder, post-traumatic stress disorder, agoraphobia with panic disorder, personality disorder, and major depression or major depressive disorder. Plaintiff's mental conditions have been tied, or the suggestion is that they stem from when her husband left her, although she also had some traumatic events earlier, including the fact that her mother died when she was nine years old and that she was sexually abused by her brother, according to 291 of the administrative transcript. In terms of health care providers, plaintiff sees Physician's Assistant Gina Callahan and has since 2013, neurologist Dr. Taseer Minhas, and podiatrist Dr. Angela Freeman. For her mental needs she sees psychiatrist Dr. Arun Shah and has since February 2015. She sees Dr. Shah approximately every three months. She also treats weekly with Therapist Jessica Netherton. The record includes a medical source statement from Dr. Shah given in May of 2018, a medical source statement from Dr. Freeman from April 30, 2018, a report of a consultative examination by Dr. Gilbert Jenouri from March 31, 2016, and opinions from Dr. A. Chapman, a psychologist, nonexamining psychologist from March of 2016. In terms of medications, plaintiff has been prescribed Klonopin, Prozac, Zyprexa, Seroquel, BuSpar, Abilify, and Chantix. Plaintiff has a fairly wide range set of activities of daily living. She is able to shower, dress, and groom. She cooks, cleans, does dishes, does laundry, shops one time per month, takes care of 50 house plants. She is able to visit her son in prison, she watches television, she does puzzles, and reads books. Plaintiff is a smoker. She smokes between 10 and 19 cigarettes per day, according to pages 240 and 393 of the administrative transcript. Procedurally, plaintiff applied for Title II and Title XVI benefits under the Social Security Act on January 15, 2016, alleging an onset date of September 1, 2014. In her function report at page 176 she claimed disability based on bipolar disorder, PTSD, Lyme disease, agoraphobia with panic disorder, swollen hands and feet, joint swelling from Lyme disease. At the hearing when asked about her ability to work, she cited mental health impairments including agoraphobia and left foot issue, at pages 43 and 44, as preventing her from performing work-related functions. On June 21, 2018, a hearing was conducted by Administrative Law Judge Robert A. Lynch to address plaintiff's application for benefits. ALJ Lynch issued an unfavorable decision on August 15, 2018. That became a final determination of the agency on May 3, 2019 when the Social Security Administration Appeals Council denied plaintiff's request for review. This suit was filed on June 27, 2019 and is timely. In his decision, ALJ Lynch applied the familiar five-step test for determining disability. At step one, after first determining that plaintiff was last insured on September 30, 2017, he concluded plaintiff had not engaged in substantial gainful activity since September 1, 2014. At step two, ALJ Lynch concluded the plaintiff does suffer from impairments that impose more than minimal limitations on her ability to perform basic work functions, including mental impairments variously described as both bipolar II disorder, post-traumatic stress disorder, agoraphobia with panic disorder, and personality disorder, as well as, from a physical standpoint, neck pain and cervicalgia and right eye vision loss. At step three, ALJ Lynch 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, specifically considering Listings 1.02, 2.02, 12.04, 12.06, 12.08, and 12.15. The mental listings were not deemed to have been met since plaintiff did not satisfy either the B or C criteria under those particular listings. ALJ Lynch then determined that plaintiff, despite her impairments, was, retains the residual functional capacity, or RFC, to perform light work with limitations that are specified at pages 21 and 22. Specifically he concludes that plaintiff can lift 20 pounds occasionally and 10 pounds frequently and can stand and/or walk for cumulative total of six hours during an eight-hour workday with ordinary breaks and can sit for a cumulative total of up to eight hours during an eight-hour workday, again, with ordinary breaks. She can occasionally climb ramps and stairs but can never climb ladders and scaffolds. She can occasionally stoop, kneel, and crouch, but can never crawl and can never work in unprotected heights. She cannot perform work that requires her to use upper extremities to reach, handle, finger, or feel on more than a frequent basis. She cannot perform work that requires fine near visual acuity such as assembling very small parts. From a mental standpoint, the RFC finding is that she can perform work that includes moderately complex tasks, further defined as work with an SVP of 4 or less in an environment that does not require interactions with the public and requires no more than occasional and superficial interaction with coworkers and supervisors. Applying that RFC finding, Administrative Law Judge Lynch concluded that plaintiff is indeed capable of performing her past relevant work either as performed by the plaintiff or generally as performed. At step five, ALJ Lynch first noted that if plaintiff could perform a full range of light work, a finding of no disability would be directed by the Vocational Guidelines set forth, or Grids, in the Commissioner's Regulations, and specifically Grid Rule 202.21. Based on the testimony of a vocational expert and a hypothetical posed to that vocational expert, the administrative law judge concluded that notwithstanding the additional nonexertional limitations, plaintiff is capable of performing work in the national economy as a swatch clerk, a packing header, and a blade balancer, and therefore concluded that plaintiff was not disabled at the relevant times. As you know, the standard that the court must apply is extremely deferential. I must determine whether substantial evidence supports the determination of the Commissioner and whether correct legal principles were applied. The Second Circuit noted in Brault v. Social Security Administration Commissioner, 683 F.3d 443, that this is an exacting standard, more rigorous than the clearly erroneous standard. Substantial evidence, of course, is well defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The court also noted in Brault that the substantial evidence standard means that once an ALJ finds facts, they can be rejected only if a reasonable fact finder would have to conclude otherwise. In this case, plaintiff has raised several contentions, challenging both the physical and mental components of the residual functional capacity finding as lacking in support by substantial evidence, and drilling down, plaintiff challenges the administrative law judge's rejections of opinions from two treating sources, Dr. Shah from a mental point of view and Dr. Freeman, the treating podiatrist. And more generally, the challenge, she challenges the weighing of medical opinions concerning attendance, scheduling, ability to respond to supervisor criticism, off task and absenteeism, and then of course she contends that these errors infected the RFC and therefore the step five reliance on vocational expert testimony. The administrative law judge, as he was required to do, formulated an RFC. As you know, claimant's RFC represents a finding of the range of tasks she is capable of performing, notwithstanding her impairments at issue. An RFC determination is informed by consideration of all of the relevant medical and other evidence as spelled out in 20 C.F.R. Sections 404.1545(a)(3) and 416.945(a)(3). The matter's also addressed by the Second Circuit in Tankisi v. Commissioner of Social Security, 521 F.App'x. 29 from 2013. To properly ascertain an RFC, an ALJ must assess plaintiff's exertional capabilities, as well as nonexertional limitations or impairments. When rendering an RFC determination, the ALJ must specify those functions that claimant is capable of performing without conclusory statements, and of course the RFC determination must in the end be supported by substantial evidence. In this case, the real nub is plaintiff's treating source argument. Ordinarily of course the opinions of treating source regarding the nature and severity of an impairment is entitled to considerable deference if it is supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence. Such opinions are not controlling, however, if they are contrary to other substantial evidence in the record, including the opinions of other medical experts. And where the record includes contradictory medical evidence, resolution of such contradictions or conflict is properly entrusted to the Commissioner. The treating source rule really presents a two-step analysis. First the determination must be made as to whether controlling weight is going to be given to the opinion. If it is not, then the ALJ must specify how much, if any, weight is given to the treating source's opinion, applying several factors that have been -- that are included in the regulations and also in the Second Circuit they're referred to as the Burgess factors, referenced in Burgess v. Astrue, 537 F.3d 117 at 128. Among the factors to be considered are the length of the treatment relationship and the frequency of the examination, the nature and extent of the treatment relationship, the evidence supporting the treating provider's opinion, the degree of consistency between the opinion and the record as a whole, whether the opinion is given by a specialist, and other evidence that has been brought to the attention of the ALJ. The Second Circuit has noted that when an ALJ fails to explicitly consider the Burgess factors, remand is not necessarily required if a careful review of the record reveals that the treating source rule was not violated. In this case, the -- first with regards to Dr. Freeman, Dr. Freeman's opinions are treated at page 25 of the administrative transcript and although it is only treated in a paragraph, the -- Dr. Freeman of course limited, at pages 329 and 330, limited plaintiff to standing and walking for less than one hours out of an eight-hour day, something that it's not -- the handwriting is not clear and the administrative law judge made a mistake and thought that that was four hours in an eight-hour workday but nonetheless rejected the limitation. Dr. Freeman also opined that plaintiff would be off task between 20 and 33 percent of the day based upon the chronic foot pain. The administrative law judge again at page 25 rejected that opinion and gave a -- an explanation including the lack of subjective complaints, the lack of documented diagnostic testing, and although the Burgess factors are less than adequately outlined in the -- in that one paragraph, I conclude the treating source rule is not violated and that a careful review of the record as a whole reflects that the treating source rule was not violated. Dr. Shah is a little bit different situation. Dr. Shah issued a medical source statement on May 9, 2018 at pages 468 and 469 of the administrative transcript finding marked limitations in several areas, including maintain regular attendance without interruptions from psychological symptoms, performing activities within a schedule regarding being punctual and performing at a consistent pace, ability to interact appropriately with the general public, accept instructions and respond appropriately to criticism from supervisors, ability to respond appropriately to ordinary stressors in a work setting with simple tasks, and opined that plaintiff would be off task 20 to 33 percent of the day and absent three days or more per month. Dr. Shah's opinions are discussed by the administrative law judge at several points, 19 and 20 of the administrative transcript, page 23 of the administrative transcript, and again, page 24. Pages 19 and 20 and page 24 seem to indicate the weight given and the reasons for the weight being given. I agree with the Commissioner that the speculation as to motives for Dr. Shah to exaggerate plaintiff's limitations being that there was a Social Security Disability claim pending is an appropriate consideration but it was not by any means the appropriate -- the only reason cited for rejecting Dr. Shah's opinions. I do note parenthetically that Dr. Shah, a review of his notes at Exhibits 4F and 8F make it abundantly clear that he was well aware of the pendency of the disability application but -- and I also agree with plaintiff and courts that have noted that in mental health cases, the opinions of treating psychiatrists or psychologists with a longitudinal view are important. The Second Circuit noted that in Ferraro v. Saul, 2020 WL 1189399. But the Second Circuit also in Ferraro noted that check-box forms are not always reliable and are somewhat marginally useful. I also agree that psychiatric symptoms can wax and wane. This is perhaps a close case but I think it is distinguishable from both Stacey and Estrella. In Estrella, the Second Circuit noted that the administrative law judge had referenced only two positive treatment notes to support rejection of the treating psychiatrist opinions. The Second Circuit noted that there were many others that were not so promising or positive. In Stacey, the Second Circuit noted that the administrative law judge did not rely on or even refer to any of the mental status evaluations in rejecting the doctor's opinion on the issue of the ability to concentrate which was a key issue in that case. The -- it is obviously for the administrative law judge to weigh medical evidence and resolve inconsistencies. Here, the administrative law judge explained the treatment of Dr. Shah. I think that, between the three excerpts that I cited, the Burgess factors have been considered. He was referred to as a psychiatrist, he was referred to as treating source, many of his notes were referenced. It was also, supported the opinions, the rejection of Dr. Shah's opinions by the opinions of Dr. Chapman, an agency consultant and an expert, qualified expert in the field of Social Security. I reviewed the treatment notes of Dr. Shah and specifically 4F and 8F exhibits, and I agree with the Commissioner that they portray a much different view of plaintiff who reported symptoms, the improvement with treatment, improvement with medication. At page 370, she's better and has come a long way; 372, described as stable; 382, described as being in a good mood, multiple denials of suicidal or homicidal ideations, references to being alert times three, good attention, good concentration. So in my view, a searching review of the record reflects that even if the treating source rule was violated, the reasons for rejection of the opinion were stated and supported by substantial evidence. I agree with the Commissioner that this is a case that is similar to and supported by Judge Dancks' decision in Michelle M. v. Commissioner of Social Security, 2020 WL 495170 from the Northern District of New York, January 30, 2020. In terms of the reliance on the opinions of Dr. Chapman, partial reliance, Dr. Chapman issued a medical source statement that found that plaintiff retains the capacity to perform the basic mental demands of unskilled work, that's at page 76. Dr. Chapman found that plaintiff's ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances was not significantly limited. He also found that the ability to sustain an ordinary routine without special supervision was not significantly limited. He did find that the ability to interact appropriately with the general public was moderately limited, the ability to accept instructions and respond appropriately to criticisms from supervisors was moderately limited, and the ability to respond appropriately to changes in the work setting was moderately limited. In my view the administrative law judge explained why those findings were rejected based on medical evidence, Dr. Shah's notes, plaintiff's activities of daily living, and that is supported by substantial evidence. Turning to the -- turning to the physical RFC, the administrative law judge discussed reasons for rejecting Dr. Freeman's opinions and we discussed that. The administrative law judge addressed the lack of evidence of atrophy, mostly normal physical exams, the findings of Dr. Jenouri and his examination, normal EMG findings, the fact that plaintiff underwent no treatment for peripheral neuropathy, activities of daily living, the normal x-ray of plaintiff's left foot, the lack of evidence of any reduced range of motion, sensory loss or motor loss. The record in my view contains sufficient evidence to assess plaintiff's RFC as a whole, and that the RFC, the physical components of the RFC is supported by substantial evidence, including but not limited to portions of Dr. Jenouri's opinions and findings as well as plaintiff's activities of daily living and the evidence which I just recited. In connection with physical I find that the plaintiff failed to carry her burden of showing greater limitations as it is her burden under Poupore, and that this is merely a request to have the court reweigh evidence. And finally, I find that the step five determination was proper, the residual functional capacity was supported by substantial evidence. The vocational expert was posed a hypothetical which tracked the RFC finding, and the Commissioner therefore carried his burden at step five, relying on the testimony of the vocational expert. In conclusion, I believe that correct legal principles were applied and that substantial evidence supports the Commissioner's determination. I will therefore grant judgment on the pleadings to the defendant and order dismissal of plaintiff's complaint. Thank you once again, I've enjoyed working with both of you and I hope you stay safe in these interesting times. MR. GORTON: Thank you, your Honor. MR. MAKAWA: Thank you, your Honor. (Proceedings Adjourned, 11:51 a.m.) I, JODI L. HIBBARD, RPR, 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 24th day of June, 2020. /S/ JODI L. HIBBARD

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