Rotter v. Saul

Opinion

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

SARAH R.,

Plaintiff, v. Civil Action No. 3:19-CV-0798 (DEP)

ANDREW M. SAUL, Commissioner of Social Security,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LACHMAN, GORTON LAW FIRM PETER A. GORTON, ESQ. Attorneys at Law 1500 East Main Street Endicott, NY 13761

FOR DEFENDANT

HON. GRANT C. JAQUITH OONA M. PETERSON, ESQ. United States Attorney for the Special Assistant U.S. Attorney Northern District of New York 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, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-

motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on July 29, 2020, during a telephone conference held 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 is not 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, a transcript of which is attached and 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 plaintiff was not

disabled at the relevant times, and thus is not entitled to benefits under the

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. Social Security Act, is VACATED. 3) The matter is hereby REMANDED to the Commissioner, without a directed finding of disability, for further proceedings consistent with this determination. 4) The clerk is respectfully directed to enter judgment, based

upon this determination, remanding the matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case.

U.S. Magistrate Judge Dated: August 10, 2020 Syracuse, NY

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

Plaintiff,

vs. 3:19-CV-798

ANDREW SAUL, Commissioner of Social Security, Defendant. -------------------------------------------------------x DECISION - July 29, 2020 James Hanley Federal Building, Syracuse, New York HONORABLE DAVID E. PEEBLES 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 Office of Regional General Counsel 26 Federal Plaza New York, New York 10278 BY: OONA M. PETERSON, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: Let me begin by thanking counsel for excellent presentations. I've enjoyed working on this case with you. Plaintiff has commenced this proceeding pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3) to challenge an adverse determination by the Commissioner of Social Security finding that she was not disabled at the relevant times and, therefore, ineligible for the benefits sought. The background is as follows. The plaintiff was born in February of 1986. She is currently 34 years of age. She was 30 years old at the time of the onset of her alleged disability in January of 2016. She was, I should say, approaching 30; she was a month shy of 30 years old. She stands somewhere between 5-foot-4 and 5-foot-5 in height, and weighs between 128 and 132 pounds, depending on the reference in the record. Plaintiff did live in Binghamton with her mother, her 13-year-old son, an adult brother, and the mother's boyfriend; however, since May of 2017 she has resided with a partner/friend in an apartment. Plaintiff completed ninth grade and entered the tenth grade; she did not complete school, however. She was in special education classes, including an 8:1:1 class based on her classification as emotionally disturbed. She is right-handed. Plaintiff no longer has a driver's license. She had one but lost it as a result of some sort of Vehicle & Traffic Law infraction. Plaintiff stopped working in January of 2016. Prior to that time she worked in various capacities, both in retail as a cashier and as a server. Virtually all the positions she occupied were up to the five month duration. Plaintiff claims that she is unable to work based upon her mental condition, as well as her migraine headaches. She suffers from post-traumatic stress disorder, which she claims is worsening; migraine headaches, which she claims she suffers from two to three a week; and anxiety. So, physically, there is a comorbid condition of migraines. The migraines cause her to suffer or experience nausea and vision issues. She treats her migraines in many ways, including through the use of medical marijuana. Plaintiff was involved in motor vehicle accidents in December of 2012 and again in February of 2018, the latter of which resulted in a right shoulder injury. Addressing her migraines, she has undergone Magnetic Resonance Imaging testing, or an MRI, in May of 2016. That testing is reflected at pages 348 and again at 354 of the Administrative Transcript. The impression of that testing was, quote, "No evidence of acute intracranial abnormality." Plaintiff also underwent EEG testing, also in May of 2016. It is reported at 349 and 355 of the Administrative Transcript. The interpretation and clinical correlation includes, quote, "This is a normal awake drowsy and sleep EEG. No ictal or epileptiform discharges were seen. Correlate clinically." The plaintiff suffers, as I indicated, from mental conditions, including PTSD, which stems at least in part from the fact that she experienced sexual abuse as a child. She also experiences attention deficit and hyperactivity disorder, or ADHD, a mood disorder, anxiety, and bipolar disorder. She was in and out throughout her life of mental institutions, special schools, and group homes. She was last hospitalized in 2015. She has a history of suicide attempts, according to 280 and 281 of the Administrative Transcript. In October of 2012 she overdosed on Xanax. That's at page 294. She was hospitalized due to a suicide attempt on September 22, 2017. That's at 488, 489. Her treating physician, Dr. Aranda, had to call 911 on October 2, 2015, based upon her conduct during an exam. That's at page 296. She testified that she has difficulty sleeping, nightmares, crying spells, there is evidence of violent behavior during manic spells, and as one indication of that she was prosecuted for threatening to blow up the house of a judge and received eight months of probation. She pled guilty, and that led to probation, to criminal contempt; her girlfriend apparently had an order of protection against her at the time. Her primary physician is Dr. Arvin Aranda, who she has seen for twelve years. She sees Dr. Aranda one to two times per month. She also treats with LPN Juliane Loucks at Dr. Aranda's office. Plaintiff has received care from Family and Children's Society for the last six or seven months preceding the hearing in this matter, including from the nurse practitioner Caroline Murphy and licensed clinical social worker Faith Finch. She also has treated with Dr. Subu Dubey and Dr. Ahmad Alwan. The plaintiff's medications over time have included Flexeril, Fioricet as needed for headaches, Vicodin, Xanax, Zofran, Propranolol, Hydroxyzine, Trazodone, Paxil, medical marijuana, as I indicated, Citalopram. She was also on Seroquel and Lithium, but experienced adverse reactions to those medications. In terms of activities of daily living, plaintiff is able to dress, groom, clean, do laundry, some shopping, television, music, she sees her mother daily, she goes out but only if accompanied, including for use of public transportation. In terms of cooking, she told Dr. Slowik that she does cook, but Dr. Jenouri she does not. Plaintiff smokes and has since age 17. She smokes five to eight cigarettes per day. Procedurally, plaintiff applied for Title XVI Supplemental Security Income benefits on February 7, 2016, alleging a disability onset date of January 13, 2016. In her function report she claims inability to work based on bipolar disorder, manic depression, anxiety, social and panic disorder, high blood pressure, a pineal cyst on the brain, an ovarian cyst, an irregular heart beat, eye problems, obsessive compulsive disorder, seizures, and ADHD. A hearing was conducted on May 22, 2018 by Administrative Law Judge Jo Ann Draper to address plaintiff's claim for benefits. ALJ Draper issued an unfavorable decision on July 30, 2018. That decision became a final determination of the Commissioner on May 17, 2019 when the Social Security Administration Appeals Council denied plaintiff's request for review. This action was commenced on July 3, 2019, and is timely. In her decision ALJ Draper applied the familiar five-step test for determining disability. She found that plaintiff had not engaged in substantial gainful activity since February 7, 2016, the date of her Title XVI application, although she noted that there was some earnings reflected since that time. At step two, the ALJ concluded that plaintiff suffers from severe impairments that impose more than minimal limitations on her ability to perform work related functions, including bipolar disorder, anxiety disorder, including PTSD, and migraines. At step three, the Administrative Law Judge concluded that plaintiff's conditions do not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering listings 12.04, 12.06, and 12.15. After surveying the record, ALJ Draper concluded that plaintiff is capable of performing the requirements of light work except with some additional limitations, including physical and mental limitations. The mental limitations are that she can perform tasks learned in thirty days or less involving simple work-related decisions requiring little to no judgment, with only occasional workplace changes, with no interaction with the public, and only occasional interaction with co-workers and supervisors. She can perform no work at production-rate pace. Applying that residual functional capacity, or RFC, determination at step four, ALJ Draper concluded that plaintiff is unable to perform her past relevant work. Proceeding to step five, ALJ Draper noted that if plaintiff were capable of performing a full range of light work, the Medical-Vocational Guidelines set forth in the Commissioner's regulations, and specifically Rule 202.17, would direct a finding of no disability. Because of the additional non-exertional limitations, the testimony of a vocational expert was elicited, and based on that testimony, ALJ Draper concluded that plaintiff is capable of performing available work in the national economy, including as a swatch clerk, a packing header, and a blade balancer. The Court's function, as you know, in this case is to determine whether correct legal principles were applied by the Administrative Law Judge and whether her decision is supported by substantial evidence. It is a deferential standard, more demanding and exacting than the clearly erroneous standard that we are generally familiar with. Substantial evidence includes or means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Second Circuit noted in Brault versus Social Security Administration, 683 F.3d 443, that it is a demanding standard and the standard means that once an ALJ finds a fact, the fact can be rejected only if a reasonable factfinder would have to conclude otherwise. In this case plaintiff has raised three contentions, the third of which depends on the first two. She challenges the weight afforded to the various medical opinions in the record by the Administrative Law Judge, including Dr. Aranda and Dr. Dubey, and the reliance on the opinions of Dr. T. Harding, and also challenges the weighing of Dr. Slowik's consultative examination report. The second contention is that the residual functional capacity is not supported because it does not make any reference to plaintiff being off task or absent, and it is contrary to every medical opinion addressing those two issues. The step-five argument, which is the third argument, is that the hypothetical posed by the vocational expert was flawed because it was not supported by substantial evidence, it was based on a flawed RFC finding. The Administrative Law Judge's task in this case was first to determine plaintiff's residual functional capacity, or RFC, which, of course, is pivotal to the finding of no disability. An RFC, of course, represents a range of tasks that the plaintiff is capable of performing notwithstanding her impairments. An RFC is informed by consideration of all of the relevant and other medical evidence. In deciding or determining an RFC, the ALJ must assess plaintiff's exertional capabilities, such as her ability to sit, stand, walk, lift, carry, push, and pull. Non-exertional limitations must also be considered, and of course the RFC determination must be supported by substantial evidence. In this case there is a wealth of medical opinions. The regulations set forth the analysis that must be made when medical evidence and medical opinions are evaluated. They're the same so-called Burgess factors that inform a determination of whether to give controlling weight to a treating source's opinions, and if not, what weight it should be given. Among the factors, they're set out at in this case 20 CFR Section 416.927. As I indicated, there are several medical opinions in the record, and I'll go through them briefly because I think they're important to the analysis in this case. The first is from Dr. Subu Dubey from May 15, 2018. It appears at pages 482 and 483 of the Administrative Transcript. Dr. Dubey finds extreme limitations in many areas, including maintaining attention and concentration; perform activities within a schedule, be punctual, perform at a consistent pace; ability to interact appropriately with the general public; ability to accept instructions and respond appropriately to criticism from supervisors; ability to respond appropriately to ordinary stressors in a work setting with simple tasks. Dr. Dubey at page 483 opines that plaintiff would be off task more than 33 percent of the day and would be absent three or more days per month, and treatment as to plaintiff's PTSD, bipolar disease, ADHD, and OCD, as well as the general anxiety disorder. I will note that I do not agree with plaintiff that Dr. Dubey should be considered as a treating source. Dr. Dubey prior to rendering that opinion only saw the plaintiff on two occasions, April 4, 2018 and May 14, 2018, and under Petrie versus Astrue, 412 F. App'x 401, a Second Circuit decision from 2011, this would not qualify him as a treating source. It doesn't mean, however, that his opinions are meaningless. He is someone who has examined the plaintiff and so his opinions must be considered using the factors that we've discussed. Dr. Aranda, who is a treating source, on May 14, 2018 rendered an opinion that appears at 479 and 480 of the Administrative Transcript, and significantly Dr. Aranda concludes that plaintiff would be off task more than 20 percent but less than 33 percent of the day, and absent more than four days per month. I note that Dr. Aranda indicated next to the off task category, quote, "better approximation by a neurologist." Plaintiff did see a neurologist, Dr. Ahmad Alwan, although there is no medical source statement from that neurologist. I should say that the Administrative Law Judge accorded little weight to either Dr. Dubey or Dr. Aranda's reports. There is a consultative report from March 18, 2016 authored by Dr. Amanda Slowik. It appears at pages 303 to 307. It was given considerable weight by the Administrative Law Judge. In her medical source statement, Dr. Slowik found no limitations in certain areas, mild limitations in others, and made the following additional statement, "The claimant's ability to maintain a regular schedule and appropriately deal with stress is moderately to markedly limited." As we discussed during oral argument, although Dr. Slowik's opinions were given considerable weight, at page 25 of the Administrative Transcript, the ALJ did not discuss why any limitation associated with the ability to maintain a schedule is not included in the RFC. There is a physical report of an examination by Dr. Gilbert Jenouri also from March 18, 2016. It appears at 311 to 314 of the Administrative Transcript. And that indicated mild restriction on walking, standing, and sitting for long periods, bending, stair climbing, lifting, and carrying. That's at page 314. It was given partial weight. There's no indication that Dr. Jenouri considered or was asked to consider whether plaintiff would be off task or absent. And as I indicated in oral argument, interestingly, under chief complaints there is reference to lower back and neck pain, hip pain, knee pain, but no indication of any migraines. The last opinion is from Dr. T. Harding, a non-examining consultant, from March 31, 2016. It appears at Exhibit 2A of the Administrative Transcript. In that opinion, in the worksheet portion of the opinion, Dr. Harding concludes that plaintiff is moderately limited in the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. Also indicates moderately limited in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. And when asked to explain in narrative form the limitations expressed, he indicates "see below." In his mental RFC opinion, Dr. Harding referenced a couple of notes, treatment notes, referenced her ability to perform some household activities of daily living, and stated, quote, "Based on evidence in file, claimant retains the ability to perform the basic mental demands of unskilled work with limited social contact." That was later reaffirmed by Dr. Harding at pages 316 and 317 of the Administrative Transcript. A couple of observations when dealing with mental issues, and in many cases, and this is no exception, there is ebb and flow, there is cycling of mental conditions, especially when you're dealing with bipolar disorder. The record is clear that there are times when plaintiff exhibited troubling behavior, violent behavior, and there are other times when she did not. I also note that when you're dealing with such cases, the opinions of a treating source, someone who has examined the plaintiff and has some longitudinal history, it is significant. This was reflected in Flynn versus Commissioner of Social Security, 729 F. App'x 119. Unlike many physical conditions, mental conditions do not always yield objective evidence that would allow you to measure the condition or many limitations. I also note on the other side of the coin that it is for the Administrative Law Judge to decide weight to be given to conflicting medical opinions under the Second Circuit's decision in Veino. The problem with this case is that literally every opinion that addresses the issue of schedule finds some limitation in the ability to maintain attendance and be on task. If those opinions were improperly rejected, the error is clearly harmful because the vocational expert testified to employer tolerances, including eight days per year of absences, that's at page 81, and 15 percent being off task. Dr. Slowik, as I indicated, found a moderate to marked limitation in the ability to maintain a regular schedule. The Administrative Law Judge is silent on why that opinion was rejected. Dr. T. Harding finds a moderate limitation in the ability to perform within a schedule and complete a normal workweek, and says, "see below for an explanation." I don't find the extent of that limitation was properly explained and that the -- I do find that the mental residual functional capacity explanation from Dr. Harding is woefully deficient. One of my colleagues, Magistrate Judge Gregory Fouratt, issued an opinion which is enlightening in terms of the obligations of a consultative examiner like Dr. Harding in Milner versus Berryhill, 2018 WL 461095, from the District of New Mexico, January 18, 2018. In this case in my view Dr. Harding did not adequately comply with his obligations to provide an explanation or the extent of the limitation on the ability to perform within a schedule. I also find that the treating physician report of Dr. Aranda was not properly -- the rejection of it was not properly explained. As you know, a treating source is entitled to controlling weight, the treating source opinions, if it is supported by medically acceptable, clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence. And if they're not afforded controlling weight, then the Burgess factors must be examined and a detailed discussion of the weight given to it should follow. I recognize that the Second Circuit has said, including in Estrella, that the violation of the treating source rule should not result in a remand if a searching review of the record convinces the Court that the treating source rule was not violated. I cannot say that in this case. The unanimous opinions are that plaintiff suffers from some degree of limitation in her ability to perform within a schedule and stay on task. There is case law that says that if opinions are unanimous on an issue, the opinions can be overridden only if there is overwhelming evidence to the contrary, which I do not find in this case. The Commissioner has cited a couple of cases which I find are distinguishable. One is Heaman versus Berryhill, 765 F. App'x 498. That's from the Second Circuit, 2019. In that case the ALJ relied not on the ALJ lay opinion, but rather the opinions of a consultative examiner, Dr. Magurno, and a medical expert, Dr. Efobi, in addition to treatment notes, clinical findings and diagnostic testing of record. Here there aren't any medical opinions that support any conclusion that plaintiff would not be absent and would not be off task as opined. Similarly, Barry versus Colvin, 606 F. App'x 621, from the Second Circuit 2015, is distinguishable. In that case the medical source statement of the state agency psychologist was credited and the statement was, as discussed above, substantial evidence, including Barry's own statements, treatment notes from her physicians, and the opinion of Dr. Andrews, a state agency psychologist who concluded the plaintiff had no significant limitations in performing activities within a schedule, maintaining regular attendance, or being punctual within customary tolerances supported the RFC. In this case Dr. Harding did find limitations in those areas, and so I find Barry is also distinguishable. In conclusion, I find that the Commissioner's determination is not supported by substantial evidence, the residual functional capacity fails to consider the limitations in plaintiff's ability to perform within a schedule and to maintain on task status. And that, unfortunately, affected the step five determination where the defendant must carry its burden, or his burden, because the hypothetical posed to the vocational expert was not supported by substantial evidence. It's a close case because I think that one could effectively argue that there is persuasive evidence of disability in this case, but I'm not going to direct the finding of disability. I think the matter should be remanded for a further consideration of plaintiff's ability to perform on schedule and on task and an explanation of why, if it is found that she can, why she can and on what basis that conclusion is made. So, I will grant judgment on the pleadings to plaintiff without a directed finding of disability and remand the matter for further consideration. Thank you both for excellent presentations. Please stay safe. * * * CERTIFICATION

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.

Leen Deneraph EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter