Myers v. O'Malley

• Court: District Court, N.D. New York
• Decided: February 27, 2024
• Docket: 3:23-cv-00095
• Status: Unknown

Opinion

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

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. 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.,

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 2 pursuant to Title 42, United States Code, Section 405(g) to 3 challenge the adverse determination by the Commissioner of 4 Social Security finding that she was not disabled at the 5 relevant times and therefore ineligible for the benefits that 6 she sought. 7 By way of background, the Court notes as follows. 8 Plaintiff was born in 1965. She is currently approximately 9 58 years of age. She was approximately 51 years old on the 10 date of her application for benefits. Plaintiff stands 11 approximately 5 feet, 3 inches in height, and weighs 12 approximately 130 pounds. 13 Plaintiff is a high school graduate who attended 14 regular education classes, and attended community college for 15 several years but did not obtain a degree. She has also 16 completed a restaurant management training program through a 17 former employer. Plaintiff's employment history includes 18 work as a manager at a fast food restaurant, a baker, 19 cashier, and a secretary. 20 At the time of her most recent administrative 21 hearing on October 4, 2022, Plaintiff resided with her adult 22 son and nine-year-old grandson. Plaintiff has had custody of 23 her grandson since he was approximately 19 months old and 24 serves as his primary caregiver. 25 Procedurally, the Court states as follows. This 1 case has a lengthy procedural history. Plaintiff applied for 2 Title II and Title VXI benefits on March 7, 2017, alleging an 3 onset date of January 1, 2014. In support of her application 4 for disability benefits, Plaintiff claims disability based on 5 a number of physical and mental impairments including 6 fibromyalgia, degenerative disc disease, Meniere's disease, 7 chronic obstructive pulmonary disease, also referred to as 8 COPD, depression, anxiety, and post-traumatic stress 9 disorder, also referred to as PTSD. 10 Plaintiff's applications were initially denied on 11 May 16th of 2017. Following a hearing, Administrative Law 12 Judge Paul D. Barker, Jr. issued an unfavorable decision on 13 May 22 of 2019. After the Appeals Council denied Plaintiff's 14 request for review on July 14th of 2020, Plaintiff commenced 15 a proceeding in the Northern District of New York. On 16 February 8 of 2022, I remanded the case for further 17 administrative proceedings for proper evaluation of the 18 medical opinion evidence. My prior remand order can be found 19 at Myers v. Kijakazi, that's found at 3:20-cv-1080, at docket 20 number 17-1, and that was filed on February 10th of 2022. 21 Following the resulting remand order from the Appeals 22 Council, Plaintiff participated in a telephonic hearing on 23 April 30th of 2021 before ALJ Barker, Jr. The ALJ issued a 24 partially favorable decision on November 7th of 2022. This 25 decision became the Commissioner's final determination on 1 January 7th of 2023. This action challenging the unfavorable 2 portion of the ALJ's decision was commenced on January 24 of 3 2023 and it is timely. 4 In his November 7, 2022 decision at issue in this 5 case, the ALJ first determined that Plaintiff met the insured 6 status requirements of the Social Security Act through 7 December 31 of 2019, and then commenced the familiar 8 five-step test for determining disability. 9 At step one, the ALJ concluded that Plaintiff had 10 not engaged in substantial gainful activity since the amended 11 alleged onset date of January 1 of 2015. Plaintiff's brief 12 uses an alleged onset date of January 1, 2014. See docket 13 number 9 at 3. But Plaintiff's letter amending the onset 14 date to January 1, 2015 is in the record. See Transcript at 15 658 and 808. There was also discussion during the hearing 16 regarding a separate administrative denial that found no 17 disability through May 5 of 2016. See Transcript 658 and 18 page 701. But the Court does not need to resolve the dispute 19 about the onset date to decide this case here today. 20 At step two, the ALJ concluded that Plaintiff had 21 the following severe impairments: Fibromyalgia, degenerative 22 disc disease of the cervical spine, anxiety, depression and 23 PTSD. The ALJ also found that a number of other impairments, 24 including Plaintiff's Meniere's disease and vertigo, were 25 non-severe. 1 At step three, the ALJ concluded that Plaintiff did 2 not have an impairment or combination of impairments that met 3 or medically equaled the severity of one of any listed 4 impairments. In making that determination, the ALJ expressly 5 considered the following listings: Listing at 1.15 dealing 6 with disorders of the skeletal spine; listing at 12.04, 7 dealing with depressive, bipolar, and related disorders; 8 listing at 12.06 dealing with anxiety and 9 obsessive-compulsive disorders; and listing at 12.15 dealing 10 with trauma and stressor-related disorders. 11 Next, the ALJ determined that Plaintiff has the 12 residual functional capacity, also referred to as RFC, to 13 perform less than the full range of light work. 14 Specifically, the ALJ found Plaintiff can lift, carry, push 15 and pull 20 pounds occasionally and 10 pounds frequently. 16 The ALJ further found that Plaintiff can stand and walk for 17 six hours of an eight-hour workday with standard breaks, can 18 sit for six hours of an eight-hour workday with standard 19 breaks, and can occasionally stoop, climb ramps and stairs, 20 balance, kneel, crawl and crouch, but can never climb 21 ladders, ropes and scaffolds. The ALJ also found Plaintiff 22 can frequently reach, handle, and finger, but must avoid 23 concentrated exposure to extreme cold, extreme heat, 24 humidity, pulmonary irritants, and vibrations, and must never 25 be exposed to unprotected heights or dangerous unprotected 1 machinery. With regard to mental health impairments, the ALJ 2 found Plaintiff can understand, remember, and carry out 3 simple tasks but not at an assembly line rate, can make 4 simple work-related decisions, can have occasional 5 work-related interactions with co-workers, supervisors, and 6 the general public, and can handle occasional changes in the 7 work setting. 8 At step four, the ALJ relied on the vocational 9 expert testimony to determine that Plaintiff has been unable 10 to perform any past relevant work since January 1 of 2015. 11 Again relying on the vocational expert testimony, 12 the ALJ found that, considering Plaintiff's age, education, 13 work experience, and RFC, that there were jobs existing in 14 significant numbers in the national economy that she could 15 have performed prior to December 26th of 2020. After 16 December 26th of 2020, Plaintiff was 55 years old and her age 17 category changed to, quote, "an individual of advanced age." 18 Due to this change, the ALJ found there were no jobs existing 19 in significant numbers in the national economy that Plaintiff 20 could perform after December 26th of 2020. 21 Accordingly, the ALJ found that Plaintiff was not 22 disabled from her alleged onset date through December 26th of 23 2020, but that Plaintiff became disabled as of December 26th 24 of 2020. 25 I'll next turn to the arguments by Plaintiff in 1 these proceedings and in her briefs. As you know, this 2 Court's functional role in this case is limited and extremely 3 deferential. I must determine whether correct legal 4 principles were applied and whether the determination is 5 supported by substantial evidence, which is defined as such 6 relevant evidence as a reasonable mind would find sufficient 7 to support a conclusion. As the Second Circuit noted in 8 Brault v. Social Security Administration Commissioner, found 9 at 683 F.3d 443, a 2012 case, this standard is demanding and 10 more so than the clearly erroneous standard. The Court noted 11 in Brault that once there is a finding of fact, that fact can 12 be rejected only if a reasonable factfinder would have to 13 conclude otherwise. 14 Now, the Plaintiff raises four primary contentions 15 in this proceeding. First, Plaintiff argues that the ALJ 16 erred in evaluating the medical opinion evidence, 17 particularly in his application of the treating physician 18 rule to opinions from Plaintiff's long-time primary care 19 physician. Second, Plaintiff argues that the ALJ failed to 20 properly evaluate Plaintiff's need for a sit-stand option. 21 Third, Plaintiff argues that the ALJ failed to properly 22 evaluate Plaintiff's mental health impairments. And fourth, 23 Plaintiff argues that the ALJ failed to properly evaluate 24 Plaintiff's limitations with regard to work pace and 25 attendance. 1 The Court's going to begin its analysis by stating 2 the following. This Court finds that remand for further 3 administrative findings is required in this case to properly 4 evaluate the medical opinion and other evidence of 5 Plaintiff's functional limitations for the period between her 6 alleged onset date and December 26th of 2020 due to three 7 significant errors by the ALJ in this case. First, the ALJ 8 failed to comply with this Court's February 8th of 2022 9 remand order. Second, the ALJ failed to satisfy the 10 requirements of the treating physician rule. And third, the 11 ALJ failed to properly evaluate Plaintiff's fibromyalgia in 12 accordance with SSR 12-2p and the relevant case law. 13 The Court continues in this analysis by pointing 14 that Dr. Darlene Denzien, Plaintiff's long-time primary care 15 physician, opined in March of 2019 that Plaintiff was limited 16 to sitting for three to four hours per day, that Plaintiff 17 could not stand -- excuse me, that Plaintiff could stand or 18 walk for only one hour per day, and that Plaintiff needed to 19 change positions from sitting to standing every 15 minutes. 20 In my February 8, 2022 order, I found that this opinion was 21 uncontroverted, and that the ALJ had erred by assigning it 22 little weight without marshaling the, quote, "overwhelmingly 23 compelling" evidence required by the controlling case law. 24 For example, Riccobono v. Saul, 796 F. App'x 49, a Second 25 Circuit 2020 case. I therefore remanded for further 1 administrative proceedings for the ALJ to reevaluate the 2 medical opinion evidence and analyze the evidence of 3 Plaintiff's ability to sit or stand and her need to change 4 positions in accordance with the overwhelmingly compelling 5 standard and the relevant regulations and case law. 6 On remand, ALJ Barker did not identify any new 7 opinion evidence addressing Plaintiff's ability to sit, 8 stand, or her need to change positions during the workday. 9 Neither of the parties have identified any new relevant 10 opinion evidence, and this Court's review of the record has 11 not divulged any such opinions. Therefore, Dr. Denzien's 12 opinion regarding Plaintiff's ability to sit, stand, and need 13 for a sit-stand option remains uncontroverted, and the ALJ 14 was still required to marshal overwhelmingly compelling 15 evidence to dismiss it, in accordance with the relevant case 16 law and as directed by my previous order. 17 Instead, the ALJ's November 7, 2022 decision 18 provided minimal valid explanation for assigning, quote, 19 "limited weight," to Dr. Denzien's March 2019 opinion. 20 Rather than identifying the overwhelmingly compelling 21 evidence to justify this limited weight, the ALJ makes a 22 blanket statement that, and I quote, "the opined sitting, 23 standing, waking, shifting positions, off task, and 24 absenteeism limitations are not consistent with the evidence 25 of record as a whole." This cursory analysis fails to 1 satisfy this Court's November 8, 2022 order, which alone 2 presents grounds for remand. See Sullivan v. Hudson, 490 3 U.S. 877, at page 885, a 1989 U.S. Supreme Court case. And 4 therein, I quote, "The district court's remand order will 5 often include detailed instructions concerning the scope of 6 the remand. Deviation from the Court's remand order in the 7 subsequent administrative proceedings is itself legal error, 8 subject to reversal on further judicial review." See also 9 Diana P. v. Saul, that's at 3:19-cv-593. That is a 10 Magistrate Hummel case, found at 2020 WL 3971536, at page 6, 11 Northern District of New York, July 14th of 2020 decision. 12 And therein Judge Hummel collected various cases addressing 13 compliance with judicial remand orders. 14 The ALJ's failure to follow this Court's remand 15 order is just one part of a broader failure to properly apply 16 the treating physician rule. The record demonstrates that 17 Dr. Denzien was Plaintiff's primary care physician for 18 approximately twenty years, including treatment for 19 fibromyalgia and management of her psychiatric medication. 20 In addition to multiple opinions prepared while Plaintiff's 21 claim has been pending, Dr. Denzien also provided a written 22 submittal explaining her experience assisting patients with 23 mental health symptoms, despite lacking a psychiatric 24 specialization. 25 The ALJ recognized that the treating physician rule 1 applied to Plaintiff's benefits claims, which were filed 2 prior to March 27th of 2017. The treating physician rule 3 reflects the generally accepted view that the continuity of 4 treatment a treating physician provides and the 5 doctor/patient relationship that she develops place her in a 6 unique position to make a complete and accurate diagnosis of 7 a patient. For that reason, the Second Circuit includes the 8 quote, "frequency, extent, nature, and length of treatment," 9 as a factor that an ALJ must consider when assigning lesser 10 weight to a treating physician opinion. 11 In this case, the ALJ recognized Dr. Denzien's 12 lengthy treatment relationship but speculated, quote, "that 13 the long relationship may have created bonds of loyalty to 14 the claimant that could have resulted in Dr. Denzien 15 providing opinions more favorable to the claimant's 16 disability than the objective findings and treatment records 17 would otherwise support." The ALJ cites no record evidence 18 to support this accusation. It is well established that an 19 ALJ's mere conjecture that a treating physician is 20 sympathetic to a patient is not an acceptable basis for 21 ignoring the treating physician's views, and is in and of 22 itself grounds for remand. See Moss v. Astrue, 555 F.3d, 23 556, at page 560, that's a Seventh Circuit 2009 case, 24 remanding where ALJ speculated that treating physician's 25 opinion, quote, "may have been made to help the Plaintiff in 1 a pending legal matter." See also Oomen versus Berryhill, 2 16-cv-3556, and that is found at 2017 WL 1386355, at page 13, 3 and that's a Southern District of New York, April 17th of 4 2017 case. And in that case the court remanding where ALJ 5 attributed the opinions expressed in the treating physician's 6 report to sympathy for Plaintiff. 7 The ALJ compounds his erroneous review of the 8 treating physician opinion by relying on Plaintiff's factual 9 misstatement at her April 2021 hearing that Dr. Denzien, 10 quote, "retired about five or six years ago." Plaintiff's 11 counsel immediately corrected this misstatement at the 12 hearing, and it is clearly contradicted by treatment records 13 from Dr. Denzien dated as recently as January of 2019. 14 Immediately after Plaintiff testified that Dr. Denzien had 15 been retired for five or six years, Plaintiff's counsel 16 informed the ALJ that Dr. Denzien had changed practices, and 17 Plaintiff's brief includes a link to the physician's current 18 office website. See Transcript pages 710 to 711; also see 19 docket number 9 at page 14, note 1. After January 2019, 20 other staff at the former practice took over Plaintiff's 21 care. See Transcript at 563, 613, and 1066. The ALJ also 22 failed to explain how Dr. Denzien's supposed retirement 23 impacted the validity of her opinions of Plaintiff's 24 functional limitations. 25 In addition to speculating about Dr. Denzien's 1 motivation and the scope of recent treatment, the ALJ appears 2 to have relied upon his lay interpretation of the medical 3 record when he emphasized a lack of objective clinical 4 evidence supporting Dr. Denzien's opinions. This approach 5 not only violates the treating physician rule, but also 6 merits remand because many of Plaintiff's functional 7 limitations stem from her diagnosed fibromyalgia. 8 The Court notes, quote, "Persons afflicted with 9 fibromyalgia may experience severe and unremitting 10 musculoskeletal pain, accompanied by stiffness and fatigue 11 due to sleep disturbances, and yet have normal physical 12 examinations." See case of White v. Commissioner of Social 13 Security, at 5:14-cv-1140, and that is a Judge Suddaby case 14 found at 2016 WL 2865724, at page 5, Northern District of New 15 York, issued April 21, 2016, and the report recommendation 16 adopted therein at 2016 WL 2858859, Northern District of New 17 York, May 16 of 2016. The Commissioner's guidance on the 18 evaluation of fibromyalgia at SSR 12-2p expresses similar 19 caution. Therefore, the ALJ's repeated emphasis on the 20 contrast between objectively normal clinical results for 21 Plaintiff's gait, reflexes, muscle strength, and range of 22 motion and Dr. Denzien's restrictive opinion does not 23 constitute substantial evidence. See Lisa v. Secretary of 24 Department of Health and Human Services, 940 F.2d 40, at 25 page 44, Second Circuit 1991 case. And therein the Court 1 stated, quote, "In stark contrast to the unremitting pain of 2 which fibromyalgia patients complain, physical examinations 3 will usually yield normal results; a full range of motion, no 4 joint swelling, as well as normal muscle strength and 5 neurological reactions." Similarly, the ALJ's reference to 6 Plaintiff's childcare responsibilities forms a, quote, "very 7 weak basis" to reject the treating source opinion, 8 particularly in light of treatment notes suggesting that the 9 physical and emotional demands of caring for her grandson 10 aggravated many of Plaintiff's fibromyalgia symptoms. See 11 case Mallery v. Berryhill, 3:17-cv-587. That is a Magistrate 12 Judge Peebles case, 2018 WL 1033284, at page 4, Northern 13 District of New York, February 22 of 2018. 14 Accordingly, remand is necessary for the ALJ to 15 evaluate Plaintiff's RFC in accordance with this Court's 16 order, the treating physician rule, and the appropriate 17 review standards for fibromyalgia. Reconsideration of these 18 issues will necessarily impact the other discrete challenges 19 to the ALJ's determination as outlined in Plaintiff's brief. 20 This remand for further administrative proceedings 21 shall do nothing to disturb the ALJ's determination that 22 Plaintiff is entitled to disability benefits beginning on 23 December 26 of 2020, and that favorable determination is not 24 subject to review in the administrative proceedings conducted 25 on remand. Despite this being the second judicial remand by 1 this Court, this Court further finds that the extraordinary 2 remedy of remand for calculation of benefits would be 3 inappropriate at this time. 4 As a result, Plaintiff's motion for judgment on the 5 pleadings is granted; defendant's motion for judgment on the 6 pleadings is denied; and the matter is reversed and remanded 7 to the Commissioner pursuant to sentence four of Title 42, 8 United States Code, Section 405(g) for further proceedings 9 consistent with this decision and order. 10 That constitutes the Court's decision, reasoning 11 and analysis. I will have this order transcribed and then 12 append it to an order that will be filed in the docket. 13 That concludes our proceeding for today. 14 Mr. Gorton, anything further for today's proceeding? 15 MR. GORTON: Nothing. Thank you, your Honor. 16 THE COURT: Mr. Peters, anything else for today? 17 MR. PETERS: No, your Honor. Thank you very much. 18 THE COURT: All right. Everyone have a good rest 19 of the day and enjoy the beginning of spring, I hope. Take 20 care. 21 * * * 22 23 24 25 16

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