Nealer v. Commissioner of Social Security

Opinion

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

BENJAMIN J. N.,

Plaintiff, v. Civil Action No. 5:20-CV-1370 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LAW OFFICES OF KENNETH JUSTIN M. GOLDSTEIN, ESQ. HILLER, PLLC 6000 North Bailey Ave., Suite 1A Amherst, NY 14226

FOR DEFENDANT

SOCIAL SECURITY ADMIN. MICHAEL L. HENRY, ESQ. 625 JFK Building New Sudbury St Boston, MA 02203

DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security (“Commissioner”), pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the

pleadings.1 Oral argument was heard in connection with those motions on June 23, 2022, during a telephone conference conducted on the record. At the close of argument, I issued a bench decision in which, after applying

the requisite deferential review standard, I found that the Commissioner=s determination resulted from the application of proper legal principles and is supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by the plaintiff in this

appeal. After due deliberation, and based upon the court=s oral bench decision, which has been transcribed, is attached to this order, and is

incorporated herein by reference, it is hereby ORDERED, as follows: 1) Defendant=s motion for judgment on the pleadings is GRANTED.

1 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order, once issue has been joined, an action such as this is considered procedurally as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. 2) The Commissioner’s determination that the plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. 3) The clerk is respectfully directed to enter judgment, based

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

U.S. Magistrate Judge Dated: June 27, 2022 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x BENJAMIN J. N.,

Plaintiff,

vs. 5:20-CV-1370

COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on June 23, 2022, 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: LAW OFFICE OF KENNETH HILLER, PLLC Attorneys at Law 6000 N. Bailey Avenue - Suite 1A Amherst, New York 14226 BY: JUSTIN M. GOLDSTEIN, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel J.F.K. Federal Building Room 625 Boston, Massachusetts 02203 BY: MICHAEL L. HENRY, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 (The Court and all counsel present by telephone.) THE COURT: I'd like to begin by thanking both counsel for excellent and spirited presentations. The plaintiff has commenced this proceeding pursuant to 42 United States Code Sections 405(g) and 1383(c)(3) to challenge a determination by the Commissioner of Social Security finding that the plaintiff was not eligible for the benefits which he sought. The background is as follows: Plaintiff was born in October of 1985, he is currently 36 years of age. He stands 5 foot 7 inches in height and weighs 175 pounds. Plaintiff lives in Camillus in a house with his parents and a sister. Plaintiff graduated high school with a local academic diploma, he was number 317 out of 394 in his class, with a 75.44 grade point average. He was in special education and classified as learning disabled in written expressions, reading, and math. Plaintiff has a driver's license and drives. Plaintiff's work history includes as a sorter for the Onondaga County Library between September of 2004 and February 2013, where he worked four days per week for four hours each day. He left that position after being harassed and accosted getting on and off the bus which he was required to take to work. He then went to work with the town of Camillus as a custodian on April 4 of 2014 and still is employed there, or at least was at the time of the hearing in this matter, working three hours per day, five days per week. He testified that he never missed work, that's at page 33 to 34 of the administrative transcript. Plaintiff initially had a job coach at the town of Camillus but no longer, according to his father. Interestingly, when asked why he could not work 40 hours per week at the hearing, at pages 39 and 40, plaintiff stated that he could not but he was not sure why. Physically, plaintiff does not suffer from any issues that appear to affect his ability to perform basic work functions. Mentally, he suffers from a learning disorder, a neurodevelopmental disorder, and mild mental disability. He has been described as pleasant, cooperative, and soft spoken. He has not undergone any psychiatric hospitalization or specialized psychiatric treatment. Plaintiff does receive treatment from a pediatrician, Dr. Thomas J. Abbamont, also from Dr. Suzanne Lamanna, D.O., from October of 2008 to 2019, as well as Family Nurse Practitioner Deirdre Wahl and in the past also received services from Horizon Clinic with the ARC of Onondaga, including Dr. Robert Sprafkin, from January of 2006 forward, and Christina Haynes, CAS, which I understand stands for Certificate of Advanced Study. Plaintiff has a fairly robust list of activities of daily living. He is able to groom, dress, prepare food, clean, do laundry, shop with assistance, drive, he can take public transportation, he socializes with friends and family, he swims, including in the Special Olympics, he likes sports, including softball and basketball, he goes to Crunch, Syracuse Crunch hockey games with friends, and he works on the computer. Procedurally, plaintiff applied for Title II and Title XVI benefits on February 26, 2019, alleging an onset date coinciding with his date of birth. It was noted that a prior application in 2008 for benefits was denied. Plaintiff claimed, at page 254, disability based upon a developmental disability, mildly, a learning disability, and a full-scale IQ of 69. The hearing was conducted to address plaintiff's application for benefits on February 19, 2020 by Administrative Law Judge Kenneth Theurer. ALJ Theurer issued an unfavorable decision on March 6, 2020, which became a final determination of the agency on October 19, 2020, when the Social Security Administration Appeals Council denied his application for review. This action was commenced on November 4, 2020 and is timely. In his decision, the ALJ applied the familiar five-step sequential test for determining disability, initially noting that plaintiff has an insured status through December 31, 2024. At step one he concluded that plaintiff had not engaged in substantial gainful activity since October 7, 1985. He does obviously have earnings but the earnings fell below the presumptive SGA levels. At step two, ALJ Theurer found that plaintiff does suffer from severe impairments that impose more than minimal limitations on his ability to perform basic work activities, including neurodevelopmental disorder and learning disorder. At step three, however, he concluded that those disabilities do not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering Listings 12.11 and 12.15. After surveying the medical evidence of record, the ALJ found that plaintiff retains the residual functional capacity, or RFC, to perform a full range of work at all exertional levels with the following additional limitations. The claimant retains the ability to understand and follow simple instructions and directions, perform simple tasks with supervision and independently, maintain attention/concentration for simple tasks, regularly attend to a routine and maintain a schedule. The claimant is able to relate to and interact with coworkers and supervisors to the extent necessary to carry out simple tasks; that is, he can ask for help when needed, handle conflicts with others, state his own point of view, initiate or sustain a conversation and understand and respond to physical, verbal, and emotional social cues, but he should avoid work requiring more complex interaction or joint efforts with coworkers to achieve work goals. The claimant is able to handle reasonable levels of simple work-related stress in that he can make simple direct decisions directly related to the completion of his tasks in a stable, unchanging work environment free of fast-paced production requirements. At step four, the administrative law judge concluded that plaintiff did not have any past relevant work to consider and proceeded to step five where, with the benefit of a vocational expert's testimony, he concluded that there is work available in the national economy that plaintiff is capable of performing notwithstanding his limitations, and cited three representative positions, including dining room attendant, hand packager, and housekeeper cleaner, and therefore concluded that plaintiff was not disabled at the relevant times. The court's function of course in this case is twofold. I must determine whether correct legal principles were applied, and secondly, whether the resulting 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 has noted under Brault, for example, v. Social Security Administration Commissioner, 683 F.3d 443, Second Circuit 2012, the substantial evidence standard is extremely deferential and significant to overcome by a plaintiff. It is even more stringent than the clearly erroneous standard which we're all familiar with. Under the substantial evidence standard, once an ALJ finds a fact, that fact can be rejected only if a reasonable fact finder would have to conclude otherwise. In this case, plaintiff raises several contentions, some of which are interrelated. He contends that the residual functional capacity finding is not supported by substantial evidence. He challenges the weight given to medical opinions, including specifically the failure to weigh Dr. Lamanna and FNP Wahl's opinions. He concludes that -- he argues at step three there should have been a finding of intellectual disability/severe mental retardation as a severe impairment. He challenges the failure to request updated medical opinions concerning plaintiff's cognitive ability. He challenges the failure of the ALJ to evaluate plaintiff's education and vocational records, including 14E, which represents a VESID occupational or vocational analysis from March 16, 2004, and 11F, which represents a psychological evaluation performed in February of 2004 at West Genesee High School. He also challenges the fact that the ALJ selectively cited to the opinions of Ms. Haynes and Dr. Sprafkin and did not weigh its persuasiveness. He argues that the ALJ improperly failed to consider other factors, the permissive factors under the regulations after finding Dr. Marks, Dr. Momot-Baker, and Dr. Shapiro's opinions to be persuasive, arguing that there was a duty to go beyond consistency and supportability because those were found to be equally persuasive. And lastly, improper evaluation of plaintiff's subjective reports of symptomology, what we used to refer to before as credibility. Turning first to the medical opinions of record, this case, because of the date of filing of plaintiff's application, is subject to the new revised regulations of the Commissioner concerning the weighing of medical opinions. Under those regulations, the ALJ does not defer or give any specific evidentiary weight, including controlling weight, to any medical opinions or prior administrative medical findings including those from a claimant's medical source. 20 C.F.R. Sections 404.1520c(a) and 416.920c(a). The ALJ must consider those opinions using the relevant factors, including considering the supportability and consistency of those opinions, and must articulate how persuasive he or she found each medical opinion and explain why. The ALJ may also, but is not required to, explain how he or she considered the other relevant factors set forth in those regulations. I note when it comes to weighing of medical opinions, particularly potentially conflicting medical opinions, it is also true that under Veino v. Barnhart, 312 F.3d 578 from the Second Circuit 2002, the weighing of such medical opinions is entrusted in the first instance to administrative law judges and so long as the analysis is supported by substantial evidence, it is not the function of the court to reweigh medical opinions. In this case, there is an opinion -- the focus really is on the opinions of Dr. Lamanna and FNP Wahl, and those opinions are rendered on forms that appear at 424 to 431 and address primarily physical issues. It's unclear who sent the forms but it is clear that they are not mentioned in the administrative law judge's decision. In my view, these do not constitute medical opinions under the regulations and therefore were not required to be mentioned when it comes to the mental aspect. Clearly they are with regard to the physical, because of the specific functional analysis, but under 20 C.F.R. Section 404.1520b(c)(3), because the portion of that opinion relates to disability, a matter reserved to the Commissioner, there's no obligation, it is not a medical opinion and there's no obligation to evaluate it pursuant to the regulations. I note that the opinion does not address intellectual disability -- it does address intellectual disability but, as I said, it's a matter reserved to the Commissioner. The better practice clearly would have been to discuss this opinion, but I find that there is no error. With regard to step two, it is true that at step two, an impairment is severe if it significantly limits a physical or mental ability to do basic work activities which are defined as the abilities and aptitudes necessary to do most jobs. It is clearly de minimus and intended to screen out all of the weakest cases. As a backdrop, however, I note that it is the plaintiff's burden through step four to establish limitations associated with any mental or physical conditions. In my view, Dr. Lamanna's opinions do not establish such limitations, nor does any other evidence in the record. I also note that because there were other, there were other impairments that were found to be severe at step two, the administrative law judge continued with the analysis through step five and therefore any failure to find a cognitive disability significant at step two would be harmless error. The RFC challenge relates to -- well, the plaintiff has challenged the RFC finding. An RFC represents the finding of a range of tasks the plaintiff is capable of performing notwithstanding his or her impairments. Ordinarily an RFC represents a claimant's maximum ability to perform sustained work activities in an ordinary setting on a regular and continuing basis, meaning eight hours a day for five days a week or an equivalent schedule. Tankisi v. Commissioner of Social Security, 521 F.App'x 29, Second Circuit 2013. To properly ascertain a claimant's RFC, an ALJ must assess plaintiff's exertional and nonexertional limitations, and of course an RFC finding, as any other finding, must be supported by substantial evidence. In this case, the RFC I find is supported adequately by substantial evidence. Plaintiff has demonstrated his ability to perform part-time work and was unable to articulate why in his view he could not work 40 hours per week five day -- 40 hours per week five days per week. He's a high school graduate, as the administrative law judge points out, with a 75.44 GPA and was not in the bottom of his class. He has a driver's license and drives. He has a very robust group of activities of daily living. The Dr. Shapiro consultative report from 2008 supports the RFC finding and I agree with the Commissioner that this is not a worsening case of depression or anxiety or PTSD or bipolar disease; it is a case involving literally a cognitive issue which is static. And having reviewed Dr. Lamanna's treatment notes, for example, I did not see any evidence of worsening so I think reliance on Dr. Shapiro's opinion was proper. I also note that it is supported by NP Wahl's treatment note that appears at 391 of the administrative transcript, plaintiff does good with routine, denies anxiety, depression, memory loss, and mood changes. It is also supported by the opinions of two state agency consultants, Dr. Marks, Dr. Momot-Baker. It is well accepted that a state agency consultant's opinions can provide substantial evidence, in a case Heim v. Commissioner of Social Security, 2018 WL 1621521, that's from the Northern District of New York, March 30, 2018; Camille v. Colvin, 652 F.App'x 25 from the Second Circuit, June 15, 2016; and A.B. v. Commissioner of Social Security, 2018 WL 3232347 from the Northern District of New York, June 29, 2018. In my view, the challenge to the residual functional capacity and the weighing of medical evidence requests this court improperly to reweigh, and something proscribed by Veino. Dr. Abbamont, plaintiff's pediatrician, gave an opinion from September of 2004, it appears at 438. The administrative law judge referenced it and indicated why he believed it was, it was not persuasive, including the fact that it predated plaintiff's ability to drive and obtain a driver's license and to perform part-time work. I note that I've gone through Dr. Lamanna's treatment notes and they do not appear to support a claim of worsening or even the inability to perform pursuant to the RFC. In April of 2014 at page 420, plaintiff was alert, oriented times three, affect appropriate, shy, memory grossly intact, attention within normal limits. In April of 2015, Nurse Practitioner Carol Scalzo notes at 415 to 419, plaintiff denies psychiatric symptoms, cooperative, memory grossly intact, affect appropriate. 412 to 414, on November 2, 2015 Nurse Practitioner Amy Perin notes that plaintiff was alert, oriented times three, normal affect, memory grossly intact. May of 2016, 407 to 411, plaintiff denies psychiatric problems and symptoms, alert, oriented times three. May 10, 2016, when he appears with a urinary tract infection, at 404 to 406 he is described as alert, oriented times three, normal affect, memory generally intact. May 8, 2017 at pages 400 to 403, plaintiff denies psychiatric problems, alert, oriented times three, cooperative attitude, normal affect. December 11, 2017, 397 to 399, able to communicate appropriately for age, alert, oriented times three, no apparent anxiety, depression, or agita, affect appropriate. May of 2018, 393 to 396, plaintiff denies crying, loss of interest, memory loss, displays cooperation, affect appropriate, has job, functions well. In April 2019, at 391 to 392, Nurse Practitioner Deirdre Wahl writes, plaintiff denies anxiety, depression, memory loss, mood changes, does good with routine and is cooperative, affect appropriate. In June of 2019, 446 to 450, plaintiff denies difficulty concentrating, mood changes, alert, oriented times three, affect appropriate. When it comes to severe mental retardation, the plaintiff suggests that that would be an appropriate finding, but that is defined as having an IQ of between 20 and 34. Plaintiff has conceded, including in his function report, that he has a full-scale IQ of 69; therefore, he does not qualify and there's no evidence to support classifying him as suffering from severe mental retardation. In terms of evaluation of plaintiff's symptoms, obviously an ALJ must take into account subjective complaints of symptomology when making the five-step disability analysis but is not required to blindly accept the subjective testimony of a claimant. Instead, the ALJ retains broad discretion to evaluate a claimant's subjective testimony and when doing so, should consider a variety of factors that ordinarily would inform any finding of credibility in any context and must obviously explain the basis for his or her finding. Factors that can be considered include daily activities, location, duration, frequency, and intensity of symptoms, precipitating and aggravating factors, type, dosage, effectiveness and side effects of any medications taken, other treatment received, and other measures taken to relieve symptoms. In this case, the ALJ followed the prescribed two-step method of determining and weighing the symptomology, I believe it's Social Security Ruling 16-3p sets forth that prescribed analysis. The ALJ is entitled to considerable deference and essentially the plaintiff is asking the court to reweigh the evidence which should only be done if there's a compelling reason. In this case, I don't find any and I defer to the ALJ's analysis of plaintiff's subjective complaints. Next there is an argument that the Commissioner erred by failing to consider the VESID report from March of 2004 that appears at 328 to 341 of the record and the Sarah Abair 2004 psychological evaluation from February of 2004, it appears at 434 to 437. Neither opinion was referenced. In my view, for the same reasons cited earlier, those opinions do not constitute medical opinions. In any event, plaintiff has not explained how consideration of those opinions would change the outcome of the case, and of course those opinions are stale. Interestingly, in the VESID report, at 332 to 334, Beth Welch notes that plaintiff might do well as a clerk or janitor, kind of prescient since he is now in a position of a janitor. When it comes to duty to develop the record, I don't find any glaring gaps in the record. The record contains sufficient evidence to evaluate plaintiff's claim of disability. I note that there is some responsibility, although it's a nonadversarial proceeding, at a hearing there is still some responsibility of a plaintiff's representative. In this case plaintiff's representatives were asked, or was asked whether the record was complete and stated that it was, and that could be viewed as sufficient and as a waiver of any claim of any gap that should have been filled. Latonya T.E.B. v. Commissioner of Social Security, 2021 WL 4033148 from the Northern District of New York, September 3, 2021, and Jason C. v. Berryhill, 2019 WL 1409804, from the Northern District of New York, March 28, 2019. Although let me be clear, I don't believe that there was a gap that should have been filled. I'll close by saying I believe this to be somewhat of a close case and the ALJ's decision is certainly not a model of clarity or thoroughness, there should have been discussion of Dr. Lamanna's opinions, but I don't find any of the errors that I've alluded to to be fatal. And so in conclusion, I find that the determination resulted from the consideration of proper legal principles and is supported by substantial evidence, so I will grant judgment on the pleadings to the defendant and order plaintiff's complaint dismissed. Thank you both, I hope you have a good day. MR. HENRY: Have a good day. (Proceedings Adjourned, 12:00 p.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, 2022. /S/ JODI L. HIBBARD

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