Roberts v. Commissioner of Social Security

Opinion

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

JENNY R.,

Plaintiff, Civil Action No. 5:18-CV-1451 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

OLINSKY LAW GROUP HOWARD D. OLINSKY, ESQ. 250 South Salina Street MARY K. McGARIGAL, ESQ. Syracuse, NY 13202

FOR DEFENDANT

HON. GRANT C. JAQUITH RONALD W. 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 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

in connection with those motions on March 10, 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 did not result from the application of proper legal principles and not 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) Plaintiff=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 VACATED.

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 matter is hereby REMANDED to the Commissioner of Social Security for further proceedings before a newly assigned Administrative Law Judge, consistent with the court's decision. 4) □□□ clerk is respectfully directed to enter judgment, based

upon this determination.

U.S. Magistrate Judge Dated: March 12, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x JENNY R. R.,

Plaintiff,

vs. 5:18-CV-1451

COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on March 10, 2020, at the James Hanley Federal Building, 100 South Clinton Street, Syracuse, New York, 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: OLINSKY LAW GROUP Attorneys at Law 250 S. Clinton Street, Suite 210 Syracuse, New York 13202 BY: MARY K. McGARIGAL, 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 W. 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 (In Chambers, Counsel present by telephone.) THE COURT: Plaintiff has commenced this proceeding pursuant to 42 United States Code Section 405(g) to challenge the Commissioner's determination that she was not disabled at the relevant times and therefore ineligible for the Disability Insurance benefits sought. The background is as follows: Plaintiff was born in August of 1965, she's currently 54 years old; she was 52 at the time of the hearing in this matter and 47 at the time of the alleged onset of her disability in May of 2013. Plaintiff is 5 foot 6 inches in height and weighs between 200 and 212 pounds. She has been in foster care most of her life. Plaintiff has six children. In December of 2017, they ranged in age from 20 to 31, although only the 20-year-old lives with the plaintiff. Plaintiff lives with her 20-year-old daughter, she was 20 in December of 2017, in a second floor apartment in Syracuse. She was homeless for a period of time. She is separated from her husband. Plaintiff is right-handed. She left school during or after ninth grade, although she can read and write and can do basic math. Plaintiff has never had a driver's license. She takes the bus and gets rides when necessary. She testified at page 33 she leaves the house approximately two times per week. Plaintiff last worked in November of 2011. She worked in the past as a cashier, and as a library page and later a library clerk. Physically, plaintiff suffers from a residual spinal stenosis and lumbar back issue which has also resulted in numbness and pain in her leg. She was admitted to Crouse Hospital on July 1 and underwent surgery on July 2, 2015 by Dr. Ross Moquin although he's been referred to as Dr. Ross occasionally. The surgery was an L2-S1 posterior arthrodesis with laminectomies for stenosis at L2, L3, L4, L5, and S1. Plaintiff underwent MRI, or magnetic resonance imaging, testing before and after the surgery, before on June 29, 2015, that's at 297, 298, and after on July 5, 2015, that's at 296 and 297. Plaintiff testified that she uses a back brace and walker. She can't stand straight. She has suffered from incontinence. Plaintiff also suffers from obesity, asthma, and headaches. Mentally, plaintiff has been variously diagnosed as having suffered from post-traumatic stress disorder, attention deficit disorder, and attention deficit and hyperactivity disorder and an anxiety disorder. She was institutionalized at some point while she was a teen. She underwent treatment and counseling at Liberty Resources in Brownell Center for approximately two years under Dr. David Kang, a psychiatrist, and Nurse Practitioner Heather Henderson. Records of treatment from November 2012 to 2016 are in evidence. She was dismissed from that program for -- based on attendance issues. She has been in the past assigned Global Assessment of Functioning or GAF scores of between 45 and 48, that's at 256 and 263 of the administrative transcript. Plaintiff has had some emergency room visits since discontinuing treatment for her back. In terms of medications, at various times she has been on Albuterol, oxycodone, hydroxyzine, Klonopin, Adderall, and gabapentin. In terms of the mental conditions, they have resulted in various symptoms including history of cutting herself, flashbacks, anger, anxiety, and stress. The plaintiff has various activities of daily living, testified to at page 48, also at page 437 there is reference to it. She likes to drink coffee, she reads, she listens to music, makes videos, takes care of her daughter, dresses, bathes, cooks, prepares food, cleans, does laundry, and shops. Plaintiff is a smoker, she smokes approximately half pack of cigarettes per day, that's at page 441 of the administrative transcript. Procedurally, plaintiff applied for Title II benefits under the Social Security Act on May 11, 2015, alleging a disability onset date of May 1, 2013. She claimed disability as a result of PTSD and ADD, that's at page 172, I'll note that that predates, the application predates her back surgery and back condition. On December 20, 2017 a hearing was conducted by Administrative Law Judge Gretchen Mary Greisler. Judge Greisler issued a decision on January 25, 2018, finding that plaintiff was not disabled at the relevant times and therefore ineligible for the benefits sought. On October 24, 2018, that became a final determination of the agency when the Social Security Administration Appeals Council denied plaintiff's application for review. In her decision, ALJ Greisler applied the familiar five-step test for determining disability. Before applying that test, she noted that plaintiff was last insured on December 31, 2016. At step one, she found plaintiff had not engaged in substantial gainful activity over the relevant period of May 1, 2013 to December 31, 2016. At step two she concluded that plaintiff suffers from severe impairments that impose more than minimal limitations on her ability to perform work-related functions, including PTSD, ADD, ADHD, migraines, and a spine disorder. At step three, ALJ Greisler concluded those conditions do not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering Listings 1.04, 3.03, 12.11, and 12.15. Plaintiff -- plaintiff's residual functional capacity was next addressed. ALJ Greisler found that she retains the RFC to perform light work with various additional restrictions, both relating to her physical condition and her mental conditions. The RFC is recited at page 17 of the administrative transcript and I won't read it into the record. At step four, the administrative law judge concluded that plaintiff is unable to perform any of her past relevant work as a library page, based on testimony of a vocational expert. Step five, the administrative law judge concluded that if plaintiff were capable of performing a full range of light work, the Medical-Vocational Guidelines set forth in the Commissioner's regulations or the Grids, and specifically Grid Rules 202.17 and 202.10, would direct a finding of no disability. Based on a hypothetical posed to a vocational expert approximating the plaintiff's residual functional capacity, ALJ Greisler found that plaintiff is able to perform work available in the national economy including as a collator operator, a marker, and a cleaner/housekeeper, and therefore was not disabled at the relevant times. As you know, my task is limited to determining whether correct legal principles were applied and the determination is supported by substantial evidence. It is an exacting standard, higher perhaps than the clear error standard as the Second Circuit noted in Brault v. Commissioner. Substantial evidence of course, we know, is defined as such evidence as a reasonable mind would find sufficient to support a factual conclusion. In her appeal, the plaintiff has raised four essential arguments. She claims that the residual functional capacity finding was not supported. It was crafted by a lay administrative law judge after rejecting all of the available medical opinions based upon their proximity to her surgery. Second, she complains of the ALJ's failure to address Dr. Noia's opinion concerning the moderate to marked ability in handling stress. At step three -- I'm sorry, the third argument is the administrative law judge's alleged failure to address the need for an assistive device, a walker. And four is the argument related to the unconstitutional alleged appointment of ALJ Greisler. I agree with the Commissioner that we have a closed period and it is plaintiff's burden to establish through the RFC and step four points that she was disabled between May 1, 2013 and December 13, 2016. Let me take first the argument concerning the Appointments Clause. Plaintiff argues that Administrative Law Judge Greisler, like all of the administrative law judges within the agency, were not properly appointed under Article II, Section 2, Clause [2] of the Constitution which specifically requires that all public ministers, consuls, judges, and other officers of the United States other than those that are provided for in the first sentence of that provision shall be appointed by law, as provided by law, but Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. The argument specifically is that the administrative law judge in this case was not appointed by the court, by the President, or by the Commissioner of Social Security. On July 13, 2018 the President issued an Executive Order concluding that at least some and perhaps all ALJs are officers of the United States and thus subject to the Constitution's Appointment Clause, that was Executive Order Number 13,843, published in 83 Fed. Reg. 32755. Three days later, on July 16, 2018, the Acting Commissioner of Social Security formally appointed the agency's ALJs in order to comply with the Appointments Clause as illuminated by that Executive Order. There doesn't appear to be an argument that the administrative law judge in this case and many others were not properly appointed under the Appointments Clause. The argument really centers around the Supreme Court's decision in Lucia which came down in June of 2018, I note while the matter was pending before the Social Security Administration Council, and that case followed an earlier decision of the Supreme Court, Freytag v. Commissioner from 1991, involving the Commissioner of Internal Revenue. The question really is whether there was a duty to present the argument to the agency and whether the failure to do so constitutes a waiver of the argument. Unquestionably, the vast majority of cases that have addressed the issue found, have found waiver and have found a duty to timely present the matter to the agency. I in fact found that to be true in Donna S. K. v. Commissioner of Social Security, it was Civil Action Number 18-CV-1070, and that was a decision from August of 2019. My reasoning was that Lucia really was not new, it should have been anticipated from the Supreme Court's decision earlier in Freytag. Another judge of this court, Andrew T. Baxter, another of my colleague magistrate judges, in Kevin F. v. Commissioner of Social Security reached a similar conclusion, that's found at 2020 WL 247323 from January 16, 2020. As plaintiff has noted, very recently in fact, on January 23, 2020, the Third Circuit dealt with consolidated appeals. One of the appeals was a case that had -- from the Eastern District of Pennsylvania that had gone the other way, Bizarre v. Commissioner of Social Security, it was consolidated and the decision was rendered on January 23, 2020 under the name Cirko v. Commissioner of Social Security, it's reported at 948 F.3d 148 from the Third Circuit. And Cirko found no duty to raise the issue before the agency and found no waiver in failing to do so. The decision clearly is not binding on this court, but I found the rationale to be compelling notwithstanding my earlier contrary decision. I note that at least one court in this circuit has followed Cirko, that is in Suarez v. Saul at 2020 WL 913809 from the District of Connecticut, February 26, 2020. There are some other cases that have come down, there is a case from the Northern District of Iowa, Griffin v. Commissioner of Social Security, 2020 WL 733886, from February 13, 2017 that followed the majority and rejected Cirko. There is a case from the District of Connecticut, Streich v. Berryhill, 2020 WL 563373 from February 5, 2020, that came after the Third Circuit's decision in Cirko but makes no reference to it. It does, however -- it does, however, follow the majority and not Cirko. There are pending appeals apparently in the Eighth Circuit and the Fourth Circuit. I checked this morning and there does not appear to be any decision from those courts. As I indicated, however, I do find the Third Circuit's opinion in Cirko persuasive, and so I am going to follow it in this case and conclude that the administrative law judge in this case was not properly appointed, there was a violation of the Appointments Clause of the Constitution and therefore the result is infected and the matter should be remanded to the Commissioner for further consideration. And consistent with the cases that have remanded on this basis, I will direct that the matter be assigned to a different administrative law judge than ALJ Greisler. I do want to make a couple of additional observations concerning the record in this case. In terms of the physical components of the residual functional capacity finding, the administrative law judge discounts virtually every opinion that addresses it. The opinions of Nurse Practitioner Margaret Fisher, the opinions of Dr. Ross Moquin, plaintiff's treating physician, and the doctors, Dr. Ganesh's consultative opinion as being too close to the surgery. Without that, there is no medical opinion in the record that addresses the plaintiff's physical condition prior to the date of last insured. I think that that presents a gap which the administrative law judge was duty bound to fill, and the ALJ was not in a position to substitute her lay opinion for the lacking medical opinions. She addresses plaintiff's failure to obtain treatment but does not consider her explanation of her homelessness as required under SSR 16-3p. It's clear plaintiff underwent physical therapy. There are also subsequent visits to the emergency room where she references continued back pain at 502 and 503 to 507. She relies for this -- and also the rejection of Dr. Noia's opinion concerning stress on activities of daily living without explaining exactly how those activities would translate into the ability to perform work on a sustained basis five days a week for eight hours a day. In terms of Dr. Noia's opinion, the administrative law judge rejected his opinion that plaintiff suffers from moderate to marked limitation in ability to deal with stress, that's at page 437, rejected again based on a wide range of ADLs and Dr. Noia's benign findings without explaining how a consultative exam could gauge the ability to deal with stress. The administrative law judge did not address the factors, the Burgess factors of 20 C.F.R. Section 404.1527. Records from the Brownell show plaintiff having cutting behaviors. There is several references to plaintiff's GAF scores of anywhere from 45 to 48, that's at page 256 and 263. A GAF score of 41 to 50 translates to serious symptoms or any serious impairment in social, occupational, or school functioning, as set forth in the DSM-IV. The -- again, there's case law to suggest that merely relying on activities of daily living to discount an acceptable medical opinion is improper, including Stoesser v. Commissioner of Social Security, 2011 WL 381941, decision from the Northern District of New York, February 3, 2011. I also have some concern about the assistive device. I understand it was not -- it's unclear whether it was medically prescribed, but plaintiff, plaintiff's RFC is for light work with additional limitations. Under 20 C.F.R. Section 404.1567(b), the light work, even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing. In my view, the use of an assistive device should have at least been discussed and the administrative law judge should have outlined why it was rejected. The use of a walker was noted by visiting providers at page 330, 338, at page 426 to 427, it was noted that plaintiff needs an assistive device to keep from falling. Her hearing testimony, page 42, referenced the use of an assistive device, and it would be -- yet the administrative law judge did not indicate why she rejected the need for using an assistive device in the hypothetical posed to the vocational expert. So in sum, I will grant judgment on the pleadings to the plaintiff and, as indicated, vacate the Commissioner's determination and direct that the matter be returned to a different administrative law judge for additional consideration. I have to say I've enjoyed working with both of you, your presentations both on paper and orally were excellent, and I hope you both have a good afternoon. Thank you. MS. McGARIGAL: Thank you as well. MR. MAKAWA: Thank you, your Honor. (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 11th day of March, 2020. /S/ JODI L. HIBBARD

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