UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________
HOLLI M.,
Plaintiff,
v. 3:23-CV-0095 (ML) COMMISSIONER OF SOCIAL SECURITY,
Defendant. ________________________________________
APPEARANCES: OF COUNSEL:
LACHMAN, GORTON LAW FIRM PETER A. GORTON, ESQ. Counsel for the Plaintiff P.O. Box 89 1500 East Main Street Endicott, New York 13761-0089
SOCIAL SECURITY ADMINISTRATION GEOFFREY M. PETERS, ESQ. Counsel for the Defendant Special Assistant U.S. Attorney Social Security Administration 6401 Security Boulevard Baltimore, Maryland 21235
MIROSLAV LOVRIC, United States 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, pursuant to 42 U.S.C. § 405(g), are cross-motions for judgment on the pleadings.1 Oral argument was heard
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. in connection with those motions on February 22, 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 was not supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by 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 ORDERED as follows: 1) Plaintiff's motion for judgment on the pleadings (Dkt. No. 9) is GRANTED. 2) Defendant’s motion for judgment on the pleadings (Dkt. No. 14) is DENIED. 3) The Commissioner’s decision denying Plaintiff Social Security benefits is REVERSED. 4) This matter is REMANDED to the Commissioner, without a directed finding of disability, for further administrative proceedings consistent with this opinion and the oral bench decision, pursuant to sentence four of 42 U.S.C. § 405(g). 5) The Clerk of Court is respectfully directed to enter judgment, based upon this determination, REMANDING this matter to the Commissioner for further administrative proceedings consistent with this opinion and the oral bench decision, pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case. Dated: February 27, 2024 Binghamton, New York
United States Magistrate Judge Northern District of New York
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ---------------------------------------------------x HOLLI M.,
Plaintiff,
vs. 3:23-CV-95
MARTIN J. O'MALLEY, Commissioner of Social Security, Defendant. ---------------------------------------------------x DECISION - February 22, 2024 the HONORABLE MIROSLAV LOVRIC United States Magistrate Judge, Presiding
APPEARANCES (by telephone) For Plaintiff: LACHMAN, GORTON LAW FIRM Attorneys at Law 1500 East Main Street Endicott, NY 13761 BY: PETER A. GORTON, ESQ.
For Defendant: SOCIAL SECURITY ADMINISTRATION 6401 Security Boulevard Baltimore, MD 21235 BY: GEOFFREY M. PETERS, ESQ.
Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: Plaintiff has commenced this proceeding pursuant to Title 42, United States Code, Section 405(g) to challenge the adverse determination by the Commissioner of Social Security finding that she was not disabled at the relevant times and therefore ineligible for the benefits that she sought. By way of background, the Court notes as follows. Plaintiff was born in 1965. She is currently approximately 58 years of age. She was approximately 51 years old on the date of her application for benefits. Plaintiff stands approximately 5 feet, 3 inches in height, and weighs approximately 130 pounds. Plaintiff is a high school graduate who attended regular education classes, and attended community college for several years but did not obtain a degree. She has also completed a restaurant management training program through a former employer. Plaintiff's employment history includes work as a manager at a fast food restaurant, a baker, cashier, and a secretary. At the time of her most recent administrative hearing on October 4, 2022, Plaintiff resided with her adult son and nine-year-old grandson. Plaintiff has had custody of her grandson since he was approximately 19 months old and serves as his primary caregiver. Procedurally, the Court states as follows. This case has a lengthy procedural history. Plaintiff applied for Title II and Title VXI benefits on March 7, 2017, alleging an onset date of January 1, 2014. In support of her application for disability benefits, Plaintiff claims disability based on a number of physical and mental impairments including fibromyalgia, degenerative disc disease, Meniere's disease, chronic obstructive pulmonary disease, also referred to as COPD, depression, anxiety, and post-traumatic stress disorder, also referred to as PTSD. Plaintiff's applications were initially denied on May 16th of 2017. Following a hearing, Administrative Law Judge Paul D. Barker, Jr. issued an unfavorable decision on May 22 of 2019. After the Appeals Council denied Plaintiff's request for review on July 14th of 2020, Plaintiff commenced a proceeding in the Northern District of New York. On February 8 of 2022, I remanded the case for further administrative proceedings for proper evaluation of the medical opinion evidence. My prior remand order can be found at Myers v. Kijakazi, that's found at 3:20-cv-1080, at docket number 17-1, and that was filed on February 10th of 2022. Following the resulting remand order from the Appeals Council, Plaintiff participated in a telephonic hearing on April 30th of 2021 before ALJ Barker, Jr. The ALJ issued a partially favorable decision on November 7th of 2022. This decision became the Commissioner's final determination on January 7th of 2023. This action challenging the unfavorable portion of the ALJ's decision was commenced on January 24 of 2023 and it is timely. In his November 7, 2022 decision at issue in this case, the ALJ first determined that Plaintiff met the insured status requirements of the Social Security Act through December 31 of 2019, and then commenced the familiar five-step test for determining disability. At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity since the amended alleged onset date of January 1 of 2015. Plaintiff's brief uses an alleged onset date of January 1, 2014. See docket number 9 at 3. But Plaintiff's letter amending the onset date to January 1, 2015 is in the record. See Transcript at 658 and 808. There was also discussion during the hearing regarding a separate administrative denial that found no disability through May 5 of 2016. See Transcript 658 and page 701. But the Court does not need to resolve the dispute about the onset date to decide this case here today. At step two, the ALJ concluded that Plaintiff had the following severe impairments: Fibromyalgia, degenerative disc disease of the cervical spine, anxiety, depression and PTSD. The ALJ also found that a number of other impairments, including Plaintiff's Meniere's disease and vertigo, were non-severe. At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of any listed impairments. In making that determination, the ALJ expressly considered the following listings: Listing at 1.15 dealing with disorders of the skeletal spine; listing at 12.04, dealing with depressive, bipolar, and related disorders; listing at 12.06 dealing with anxiety and obsessive-compulsive disorders; and listing at 12.15 dealing with trauma and stressor-related disorders. Next, the ALJ determined that Plaintiff has the residual functional capacity, also referred to as RFC, to perform less than the full range of light work. Specifically, the ALJ found Plaintiff can lift, carry, push and pull 20 pounds occasionally and 10 pounds frequently. The ALJ further found that Plaintiff can stand and walk for six hours of an eight-hour workday with standard breaks, can sit for six hours of an eight-hour workday with standard breaks, and can occasionally stoop, climb ramps and stairs, balance, kneel, crawl and crouch, but can never climb ladders, ropes and scaffolds. The ALJ also found Plaintiff can frequently reach, handle, and finger, but must avoid concentrated exposure to extreme cold, extreme heat, humidity, pulmonary irritants, and vibrations, and must never be exposed to unprotected heights or dangerous unprotected machinery. With regard to mental health impairments, the ALJ found Plaintiff can understand, remember, and carry out simple tasks but not at an assembly line rate, can make simple work-related decisions, can have occasional work-related interactions with co-workers, supervisors, and the general public, and can handle occasional changes in the work setting. At step four, the ALJ relied on the vocational expert testimony to determine that Plaintiff has been unable to perform any past relevant work since January 1 of 2015. Again relying on the vocational expert testimony, the ALJ found that, considering Plaintiff's age, education, work experience, and RFC, that there were jobs existing in significant numbers in the national economy that she could have performed prior to December 26th of 2020. After December 26th of 2020, Plaintiff was 55 years old and her age category changed to, quote, "an individual of advanced age." Due to this change, the ALJ found there were no jobs existing in significant numbers in the national economy that Plaintiff could perform after December 26th of 2020. Accordingly, the ALJ found that Plaintiff was not disabled from her alleged onset date through December 26th of 2020, but that Plaintiff became disabled as of December 26th of 2020. I'll next turn to the arguments by Plaintiff in these proceedings and in her briefs. As you know, this Court's functional role in this case is limited and extremely deferential. I must determine whether correct legal principles were applied and whether the determination is supported by substantial evidence, which is defined as such relevant evidence as a reasonable mind would find sufficient to support a conclusion. As the Second Circuit noted in Brault v. Social Security Administration Commissioner, found at 683 F.3d 443, a 2012 case, this standard is demanding and more so than the clearly erroneous standard. The Court noted in Brault that once there is a finding of fact, that fact can be rejected only if a reasonable factfinder would have to conclude otherwise. Now, the Plaintiff raises four primary contentions in this proceeding. First, Plaintiff argues that the ALJ erred in evaluating the medical opinion evidence, particularly in his application of the treating physician rule to opinions from Plaintiff's long-time primary care physician. Second, Plaintiff argues that the ALJ failed to properly evaluate Plaintiff's need for a sit-stand option. Third, Plaintiff argues that the ALJ failed to properly evaluate Plaintiff's mental health impairments. And fourth, Plaintiff argues that the ALJ failed to properly evaluate Plaintiff's limitations with regard to work pace and attendance. The Court's going to begin its analysis by stating the following. This Court finds that remand for further administrative findings is required in this case to properly evaluate the medical opinion and other evidence of Plaintiff's functional limitations for the period between her alleged onset date and December 26th of 2020 due to three significant errors by the ALJ in this case. First, the ALJ failed to comply with this Court's February 8th of 2022 remand order. Second, the ALJ failed to satisfy the requirements of the treating physician rule. And third, the ALJ failed to properly evaluate Plaintiff's fibromyalgia in accordance with SSR 12-2p and the relevant case law. The Court continues in this analysis by pointing that Dr. Darlene Denzien, Plaintiff's long-time primary care physician, opined in March of 2019 that Plaintiff was limited to sitting for three to four hours per day, that Plaintiff could not stand -- excuse me, that Plaintiff could stand or walk for only one hour per day, and that Plaintiff needed to change positions from sitting to standing every 15 minutes. In my February 8, 2022 order, I found that this opinion was uncontroverted, and that the ALJ had erred by assigning it little weight without marshaling the, quote, "overwhelmingly compelling" evidence required by the controlling case law. For example, Riccobono v. Saul, 796 F. App'x 49, a Second Circuit 2020 case. I therefore remanded for further administrative proceedings for the ALJ to reevaluate the medical opinion evidence and analyze the evidence of Plaintiff's ability to sit or stand and her need to change positions in accordance with the overwhelmingly compelling standard and the relevant regulations and case law. On remand, ALJ Barker did not identify any new opinion evidence addressing Plaintiff's ability to sit, stand, or her need to change positions during the workday. Neither of the parties have identified any new relevant opinion evidence, and this Court's review of the record has not divulged any such opinions. Therefore, Dr. Denzien's opinion regarding Plaintiff's ability to sit, stand, and need for a sit-stand option remains uncontroverted, and the ALJ was still required to marshal overwhelmingly compelling evidence to dismiss it, in accordance with the relevant case law and as directed by my previous order. Instead, the ALJ's November 7, 2022 decision provided minimal valid explanation for assigning, quote, "limited weight," to Dr. Denzien's March 2019 opinion. Rather than identifying the overwhelmingly compelling evidence to justify this limited weight, the ALJ makes a blanket statement that, and I quote, "the opined sitting, standing, waking, shifting positions, off task, and absenteeism limitations are not consistent with the evidence of record as a whole." This cursory analysis fails to satisfy this Court's November 8, 2022 order, which alone presents grounds for remand. See Sullivan v. Hudson, 490 U.S. 877, at page 885, a 1989 U.S. Supreme Court case. And therein, I quote, "The district court's remand order will often include detailed instructions concerning the scope of the remand. Deviation from the Court's remand order in the subsequent administrative proceedings is itself legal error, subject to reversal on further judicial review." See also Diana P. v. Saul, that's at 3:19-cv-593. That is a Magistrate Hummel case, found at 2020 WL 3971536, at page 6, Northern District of New York, July 14th of 2020 decision. And therein Judge Hummel collected various cases addressing compliance with judicial remand orders. The ALJ's failure to follow this Court's remand order is just one part of a broader failure to properly apply the treating physician rule. The record demonstrates that Dr. Denzien was Plaintiff's primary care physician for approximately twenty years, including treatment for fibromyalgia and management of her psychiatric medication. In addition to multiple opinions prepared while Plaintiff's claim has been pending, Dr. Denzien also provided a written submittal explaining her experience assisting patients with mental health symptoms, despite lacking a psychiatric specialization. The ALJ recognized that the treating physician rule applied to Plaintiff's benefits claims, which were filed prior to March 27th of 2017. The treating physician rule reflects the generally accepted view that the continuity of treatment a treating physician provides and the doctor/patient relationship that she develops place her in a unique position to make a complete and accurate diagnosis of a patient. For that reason, the Second Circuit includes the quote, "frequency, extent, nature, and length of treatment," as a factor that an ALJ must consider when assigning lesser weight to a treating physician opinion. In this case, the ALJ recognized Dr. Denzien's lengthy treatment relationship but speculated, quote, "that the long relationship may have created bonds of loyalty to the claimant that could have resulted in Dr. Denzien providing opinions more favorable to the claimant's disability than the objective findings and treatment records would otherwise support." The ALJ cites no record evidence to support this accusation. It is well established that an ALJ's mere conjecture that a treating physician is sympathetic to a patient is not an acceptable basis for ignoring the treating physician's views, and is in and of itself grounds for remand. See Moss v. Astrue, 555 F.3d, 556, at page 560, that's a Seventh Circuit 2009 case, remanding where ALJ speculated that treating physician's opinion, quote, "may have been made to help the Plaintiff in a pending legal matter." See also Oomen versus Berryhill, 16-cv-3556, and that is found at 2017 WL 1386355, at page 13, and that's a Southern District of New York, April 17th of 2017 case. And in that case the court remanding where ALJ attributed the opinions expressed in the treating physician's report to sympathy for Plaintiff. The ALJ compounds his erroneous review of the treating physician opinion by relying on Plaintiff's factual misstatement at her April 2021 hearing that Dr. Denzien, quote, "retired about five or six years ago." Plaintiff's counsel immediately corrected this misstatement at the hearing, and it is clearly contradicted by treatment records from Dr. Denzien dated as recently as January of 2019. Immediately after Plaintiff testified that Dr. Denzien had been retired for five or six years, Plaintiff's counsel informed the ALJ that Dr. Denzien had changed practices, and Plaintiff's brief includes a link to the physician's current office website. See Transcript pages 710 to 711; also see docket number 9 at page 14, note 1. After January 2019, other staff at the former practice took over Plaintiff's care. See Transcript at 563, 613, and 1066. The ALJ also failed to explain how Dr. Denzien's supposed retirement impacted the validity of her opinions of Plaintiff's functional limitations. In addition to speculating about Dr. Denzien's motivation and the scope of recent treatment, the ALJ appears to have relied upon his lay interpretation of the medical record when he emphasized a lack of objective clinical evidence supporting Dr. Denzien's opinions. This approach not only violates the treating physician rule, but also merits remand because many of Plaintiff's functional limitations stem from her diagnosed fibromyalgia. The Court notes, quote, "Persons afflicted with fibromyalgia may experience severe and unremitting musculoskeletal pain, accompanied by stiffness and fatigue due to sleep disturbances, and yet have normal physical examinations." See case of White v. Commissioner of Social Security, at 5:14-cv-1140, and that is a Judge Suddaby case found at 2016 WL 2865724, at page 5, Northern District of New York, issued April 21, 2016, and the report recommendation adopted therein at 2016 WL 2858859, Northern District of New York, May 16 of 2016. The Commissioner's guidance on the evaluation of fibromyalgia at SSR 12-2p expresses similar caution. Therefore, the ALJ's repeated emphasis on the contrast between objectively normal clinical results for Plaintiff's gait, reflexes, muscle strength, and range of motion and Dr. Denzien's restrictive opinion does not constitute substantial evidence. See Lisa v. Secretary of Department of Health and Human Services, 940 F.2d 40, at page 44, Second Circuit 1991 case. And therein the Court stated, quote, "In stark contrast to the unremitting pain of which fibromyalgia patients complain, physical examinations will usually yield normal results; a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions." Similarly, the ALJ's reference to Plaintiff's childcare responsibilities forms a, quote, "very weak basis" to reject the treating source opinion, particularly in light of treatment notes suggesting that the physical and emotional demands of caring for her grandson aggravated many of Plaintiff's fibromyalgia symptoms. See case Mallery v. Berryhill, 3:17-cv-587. That is a Magistrate Judge Peebles case, 2018 WL 1033284, at page 4, Northern District of New York, February 22 of 2018. Accordingly, remand is necessary for the ALJ to evaluate Plaintiff's RFC in accordance with this Court's order, the treating physician rule, and the appropriate review standards for fibromyalgia. Reconsideration of these issues will necessarily impact the other discrete challenges to the ALJ's determination as outlined in Plaintiff's brief. This remand for further administrative proceedings shall do nothing to disturb the ALJ's determination that Plaintiff is entitled to disability benefits beginning on December 26 of 2020, and that favorable determination is not subject to review in the administrative proceedings conducted on remand. Despite this being the second judicial remand by this Court, this Court further finds that the extraordinary remedy of remand for calculation of benefits would be inappropriate at this time. As a result, Plaintiff's motion for judgment on the pleadings is granted; defendant's motion for judgment on the pleadings is denied; and the matter is reversed and remanded to the Commissioner pursuant to sentence four of Title 42, United States Code, Section 405(g) for further proceedings consistent with this decision and order. That constitutes the Court's decision, reasoning and analysis. I will have this order transcribed and then append it to an order that will be filed in the docket. That concludes our proceeding for today. Mr. Gorton, anything further for today's proceeding? MR. GORTON: Nothing. Thank you, your Honor. THE COURT: Mr. Peters, anything else for today? MR. PETERS: No, your Honor. Thank you very much. THE COURT: All right. Everyone have a good rest of the day and enjoy the beginning of spring, I hope. Take care. * * * 16
I, EILEEN MCDONOUGH, RPR, CRR, 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. Been WeDoneugh EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter