Rotter v. Saul

• Court: District Court, N.D. New York
• Decided: August 10, 2020
• Docket: 3:19-cv-00798
• Status: Unknown

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

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. 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 2 excellent presentations. I've enjoyed working on this case 3 with you. 4 Plaintiff has commenced this proceeding pursuant to 5 42, United States Code, Sections 405(g) and 1383(c)(3) to 6 challenge an adverse determination by the Commissioner of 7 Social Security finding that she was not disabled at the 8 relevant times and, therefore, ineligible for the benefits 9 sought. 10 The background is as follows. The plaintiff was 11 born in February of 1986. She is currently 34 years of age. 12 She was 30 years old at the time of the onset of her alleged 13 disability in January of 2016. She was, I should say, 14 approaching 30; she was a month shy of 30 years old. She 15 stands somewhere between 5-foot-4 and 5-foot-5 in height, and 16 weighs between 128 and 132 pounds, depending on the reference 17 in the record. 18 Plaintiff did live in Binghamton with her mother, 19 her 13-year-old son, an adult brother, and the mother's 20 boyfriend; however, since May of 2017 she has resided with a 21 partner/friend in an apartment. Plaintiff completed 22 ninth grade and entered the tenth grade; she did not complete 23 school, however. She was in special education classes, 24 including an 8:1:1 class based on her classification as 25 emotionally disturbed. She is right-handed. Plaintiff no 1 longer has a driver's license. She had one but lost it as a 2 result of some sort of Vehicle & Traffic Law infraction. 3 Plaintiff stopped working in January of 2016. 4 Prior to that time she worked in various capacities, both in 5 retail as a cashier and as a server. Virtually all the 6 positions she occupied were up to the five month duration. 7 Plaintiff claims that she is unable to work based upon her 8 mental condition, as well as her migraine headaches. She 9 suffers from post-traumatic stress disorder, which she claims 10 is worsening; migraine headaches, which she claims she 11 suffers from two to three a week; and anxiety. 12 So, physically, there is a comorbid condition of 13 migraines. The migraines cause her to suffer or experience 14 nausea and vision issues. She treats her migraines in many 15 ways, including through the use of medical marijuana. 16 Plaintiff was involved in motor vehicle accidents in 17 December of 2012 and again in February of 2018, the latter of 18 which resulted in a right shoulder injury. 19 Addressing her migraines, she has undergone 20 Magnetic Resonance Imaging testing, or an MRI, in May of 21 2016. That testing is reflected at pages 348 and again at 22 354 of the Administrative Transcript. The impression of that 23 testing was, quote, "No evidence of acute intracranial 24 abnormality." Plaintiff also underwent EEG testing, also in 25 May of 2016. It is reported at 349 and 355 of the 1 Administrative Transcript. The interpretation and clinical 2 correlation includes, quote, "This is a normal awake drowsy 3 and sleep EEG. No ictal or epileptiform discharges were 4 seen. Correlate clinically." 5 The plaintiff suffers, as I indicated, from mental 6 conditions, including PTSD, which stems at least in part from 7 the fact that she experienced sexual abuse as a child. She 8 also experiences attention deficit and hyperactivity 9 disorder, or ADHD, a mood disorder, anxiety, and bipolar 10 disorder. She was in and out throughout her life of mental 11 institutions, special schools, and group homes. She was last 12 hospitalized in 2015. 13 She has a history of suicide attempts, according to 14 280 and 281 of the Administrative Transcript. In October of 15 2012 she overdosed on Xanax. That's at page 294. She was 16 hospitalized due to a suicide attempt on September 22, 2017. 17 That's at 488, 489. Her treating physician, Dr. Aranda, had 18 to call 911 on October 2, 2015, based upon her conduct during 19 an exam. That's at page 296. 20 She testified that she has difficulty sleeping, 21 nightmares, crying spells, there is evidence of violent 22 behavior during manic spells, and as one indication of that 23 she was prosecuted for threatening to blow up the house of a 24 judge and received eight months of probation. She pled 25 guilty, and that led to probation, to criminal contempt; her 1 girlfriend apparently had an order of protection against her 2 at the time. 3 Her primary physician is Dr. Arvin Aranda, who she 4 has seen for twelve years. She sees Dr. Aranda one to two 5 times per month. She also treats with LPN Juliane Loucks at 6 Dr. Aranda's office. Plaintiff has received care from Family 7 and Children's Society for the last six or seven months 8 preceding the hearing in this matter, including from the 9 nurse practitioner Caroline Murphy and licensed clinical 10 social worker Faith Finch. She also has treated with 11 Dr. Subu Dubey and Dr. Ahmad Alwan. 12 The plaintiff's medications over time have included 13 Flexeril, Fioricet as needed for headaches, Vicodin, Xanax, 14 Zofran, Propranolol, Hydroxyzine, Trazodone, Paxil, medical 15 marijuana, as I indicated, Citalopram. She was also on 16 Seroquel and Lithium, but experienced adverse reactions to 17 those medications. 18 In terms of activities of daily living, plaintiff 19 is able to dress, groom, clean, do laundry, some shopping, 20 television, music, she sees her mother daily, she goes out 21 but only if accompanied, including for use of public 22 transportation. In terms of cooking, she told Dr. Slowik 23 that she does cook, but Dr. Jenouri she does not. Plaintiff 24 smokes and has since age 17. She smokes five to eight 25 cigarettes per day. 1 Procedurally, plaintiff applied for Title XVI 2 Supplemental Security Income benefits on February 7, 2016, 3 alleging a disability onset date of January 13, 2016. In her 4 function report she claims inability to work based on bipolar 5 disorder, manic depression, anxiety, social and panic 6 disorder, high blood pressure, a pineal cyst on the brain, an 7 ovarian cyst, an irregular heart beat, eye problems, 8 obsessive compulsive disorder, seizures, and ADHD. 9 A hearing was conducted on May 22, 2018 by 10 Administrative Law Judge Jo Ann Draper to address plaintiff's 11 claim for benefits. ALJ Draper issued an unfavorable 12 decision on July 30, 2018. That decision became a final 13 determination of the Commissioner on May 17, 2019 when the 14 Social Security Administration Appeals Council denied 15 plaintiff's request for review. This action was commenced on 16 July 3, 2019, and is timely. 17 In her decision ALJ Draper applied the familiar 18 five-step test for determining disability. She found that 19 plaintiff had not engaged in substantial gainful activity 20 since February 7, 2016, the date of her Title XVI 21 application, although she noted that there was some earnings 22 reflected since that time. 23 At step two, the ALJ concluded that plaintiff 24 suffers from severe impairments that impose more than minimal 25 limitations on her ability to perform work related functions, 1 including bipolar disorder, anxiety disorder, including PTSD, 2 and migraines. 3 At step three, the Administrative Law Judge 4 concluded that plaintiff's conditions do not meet or 5 medically equal any of the listed presumptively disabling 6 conditions set forth in the Commissioner's regulations, 7 specifically considering listings 12.04, 12.06, and 12.15. 8 After surveying the record, ALJ Draper concluded 9 that plaintiff is capable of performing the requirements of 10 light work except with some additional limitations, including 11 physical and mental limitations. The mental limitations are 12 that she can perform tasks learned in thirty days or less 13 involving simple work-related decisions requiring little to 14 no judgment, with only occasional workplace changes, with no 15 interaction with the public, and only occasional interaction 16 with co-workers and supervisors. She can perform no work at 17 production-rate pace. 18 Applying that residual functional capacity, or RFC, 19 determination at step four, ALJ Draper concluded that 20 plaintiff is unable to perform her past relevant work. 21 Proceeding to step five, ALJ Draper noted that if 22 plaintiff were capable of performing a full range of light 23 work, the Medical-Vocational Guidelines set forth in the 24 Commissioner's regulations, and specifically Rule 202.17, 25 would direct a finding of no disability. Because of the 1 additional non-exertional limitations, the testimony of a 2 vocational expert was elicited, and based on that testimony, 3 ALJ Draper concluded that plaintiff is capable of performing 4 available work in the national economy, including as a swatch 5 clerk, a packing header, and a blade balancer. 6 The Court's function, as you know, in this case is 7 to determine whether correct legal principles were applied by 8 the Administrative Law Judge and whether her decision is 9 supported by substantial evidence. It is a deferential 10 standard, more demanding and exacting than the clearly 11 erroneous standard that we are generally familiar with. 12 Substantial evidence includes or means such 13 relevant evidence as a reasonable mind might accept as 14 adequate to support a conclusion. The Second Circuit noted 15 in Brault versus Social Security Administration, 683 F.3d 16 443, that it is a demanding standard and the standard means 17 that once an ALJ finds a fact, the fact can be rejected only 18 if a reasonable factfinder would have to conclude otherwise. 19 In this case plaintiff has raised three 20 contentions, the third of which depends on the first two. 21 She challenges the weight afforded to the various medical 22 opinions in the record by the Administrative Law Judge, 23 including Dr. Aranda and Dr. Dubey, and the reliance on the 24 opinions of Dr. T. Harding, and also challenges the weighing 25 of Dr. Slowik's consultative examination report. 1 The second contention is that the residual 2 functional capacity is not supported because it does not make 3 any reference to plaintiff being off task or absent, and it 4 is contrary to every medical opinion addressing those two 5 issues. 6 The step-five argument, which is the third 7 argument, is that the hypothetical posed by the vocational 8 expert was flawed because it was not supported by substantial 9 evidence, it was based on a flawed RFC finding. 10 The Administrative Law Judge's task in this case 11 was first to determine plaintiff's residual functional 12 capacity, or RFC, which, of course, is pivotal to the finding 13 of no disability. An RFC, of course, represents a range of 14 tasks that the plaintiff is capable of performing 15 notwithstanding her impairments. An RFC is informed by 16 consideration of all of the relevant and other medical 17 evidence. In deciding or determining an RFC, the ALJ must 18 assess plaintiff's exertional capabilities, such as her 19 ability to sit, stand, walk, lift, carry, push, and pull. 20 Non-exertional limitations must also be considered, and of 21 course the RFC determination must be supported by substantial 22 evidence. 23 In this case there is a wealth of medical opinions. 24 The regulations set forth the analysis that must be made when 25 medical evidence and medical opinions are evaluated. They're 1 the same so-called Burgess factors that inform a 2 determination of whether to give controlling weight to a 3 treating source's opinions, and if not, what weight it should 4 be given. Among the factors, they're set out at in this case 5 20 CFR Section 416.927. 6 As I indicated, there are several medical opinions 7 in the record, and I'll go through them briefly because I 8 think they're important to the analysis in this case. The 9 first is from Dr. Subu Dubey from May 15, 2018. It appears 10 at pages 482 and 483 of the Administrative Transcript. 11 Dr. Dubey finds extreme limitations in many areas, including 12 maintaining attention and concentration; perform activities 13 within a schedule, be punctual, perform at a consistent pace; 14 ability to interact appropriately with the general public; 15 ability to accept instructions and respond appropriately to 16 criticism from supervisors; ability to respond appropriately 17 to ordinary stressors in a work setting with simple tasks. 18 Dr. Dubey at page 483 opines that plaintiff would 19 be off task more than 33 percent of the day and would be 20 absent three or more days per month, and treatment as to 21 plaintiff's PTSD, bipolar disease, ADHD, and OCD, as well as 22 the general anxiety disorder. I will note that I do not 23 agree with plaintiff that Dr. Dubey should be considered as a 24 treating source. Dr. Dubey prior to rendering that opinion 25 only saw the plaintiff on two occasions, April 4, 2018 and 1 May 14, 2018, and under Petrie versus Astrue, 412 F. App'x 2 401, a Second Circuit decision from 2011, this would not 3 qualify him as a treating source. It doesn't mean, however, 4 that his opinions are meaningless. He is someone who has 5 examined the plaintiff and so his opinions must be considered 6 using the factors that we've discussed. 7 Dr. Aranda, who is a treating source, on May 14, 8 2018 rendered an opinion that appears at 479 and 480 of the 9 Administrative Transcript, and significantly Dr. Aranda 10 concludes that plaintiff would be off task more than 11 20 percent but less than 33 percent of the day, and absent 12 more than four days per month. I note that Dr. Aranda 13 indicated next to the off task category, quote, "better 14 approximation by a neurologist." Plaintiff did see a 15 neurologist, Dr. Ahmad Alwan, although there is no medical 16 source statement from that neurologist. 17 I should say that the Administrative Law Judge 18 accorded little weight to either Dr. Dubey or Dr. Aranda's 19 reports. There is a consultative report from March 18, 2016 20 authored by Dr. Amanda Slowik. It appears at pages 303 to 21 307. It was given considerable weight by the Administrative 22 Law Judge. In her medical source statement, Dr. Slowik found 23 no limitations in certain areas, mild limitations in others, 24 and made the following additional statement, "The claimant's 25 ability to maintain a regular schedule and appropriately deal 1 with stress is moderately to markedly limited." As we 2 discussed during oral argument, although Dr. Slowik's 3 opinions were given considerable weight, at page 25 of the 4 Administrative Transcript, the ALJ did not discuss why any 5 limitation associated with the ability to maintain a schedule 6 is not included in the RFC. 7 There is a physical report of an examination by 8 Dr. Gilbert Jenouri also from March 18, 2016. It appears at 9 311 to 314 of the Administrative Transcript. And that 10 indicated mild restriction on walking, standing, and sitting 11 for long periods, bending, stair climbing, lifting, and 12 carrying. That's at page 314. It was given partial weight. 13 There's no indication that Dr. Jenouri considered or was 14 asked to consider whether plaintiff would be off task or 15 absent. And as I indicated in oral argument, interestingly, 16 under chief complaints there is reference to lower back and 17 neck pain, hip pain, knee pain, but no indication of any 18 migraines. 19 The last opinion is from Dr. T. Harding, a 20 non-examining consultant, from March 31, 2016. It appears at 21 Exhibit 2A of the Administrative Transcript. In that 22 opinion, in the worksheet portion of the opinion, Dr. Harding 23 concludes that plaintiff is moderately limited in the ability 24 to perform activities within a schedule, maintain regular 25 attendance, and be punctual within customary tolerances. 1 Also indicates moderately limited in the ability to complete 2 a normal workday and workweek without interruptions from 3 psychologically based symptoms and to perform at a consistent 4 pace without an unreasonable number and length of rest 5 periods. And when asked to explain in narrative form the 6 limitations expressed, he indicates "see below." 7 In his mental RFC opinion, Dr. Harding referenced a 8 couple of notes, treatment notes, referenced her ability to 9 perform some household activities of daily living, and 10 stated, quote, "Based on evidence in file, claimant retains 11 the ability to perform the basic mental demands of unskilled 12 work with limited social contact." That was later reaffirmed 13 by Dr. Harding at pages 316 and 317 of the Administrative 14 Transcript. 15 A couple of observations when dealing with mental 16 issues, and in many cases, and this is no exception, there is 17 ebb and flow, there is cycling of mental conditions, 18 especially when you're dealing with bipolar disorder. The 19 record is clear that there are times when plaintiff exhibited 20 troubling behavior, violent behavior, and there are other 21 times when she did not. 22 I also note that when you're dealing with such cases, 23 the opinions of a treating source, someone who has examined 24 the plaintiff and has some longitudinal history, it is 25 significant. This was reflected in Flynn versus Commissioner 1 of Social Security, 729 F. App'x 119. Unlike many physical 2 conditions, mental conditions do not always yield objective 3 evidence that would allow you to measure the condition or 4 many limitations. 5 I also note on the other side of the coin that it is for 6 the Administrative Law Judge to decide weight to be given to 7 conflicting medical opinions under the Second Circuit's 8 decision in Veino. The problem with this case is that 9 literally every opinion that addresses the issue of schedule 10 finds some limitation in the ability to maintain attendance 11 and be on task. If those opinions were improperly rejected, 12 the error is clearly harmful because the vocational expert 13 testified to employer tolerances, including eight days per 14 year of absences, that's at page 81, and 15 percent being off 15 task. Dr. Slowik, as I indicated, found a moderate to marked 16 limitation in the ability to maintain a regular schedule. 17 The Administrative Law Judge is silent on why that opinion 18 was rejected. 19 Dr. T. Harding finds a moderate limitation in the 20 ability to perform within a schedule and complete a normal 21 workweek, and says, "see below for an explanation." I don't 22 find the extent of that limitation was properly explained and 23 that the -- I do find that the mental residual functional 24 capacity explanation from Dr. Harding is woefully deficient. 25 One of my colleagues, Magistrate Judge Gregory Fouratt, 1 issued an opinion which is enlightening in terms of the 2 obligations of a consultative examiner like Dr. Harding in 3 Milner versus Berryhill, 2018 WL 461095, from the District of 4 New Mexico, January 18, 2018. In this case in my view 5 Dr. Harding did not adequately comply with his obligations to 6 provide an explanation or the extent of the limitation on the 7 ability to perform within a schedule. 8 I also find that the treating physician report of 9 Dr. Aranda was not properly -- the rejection of it was not 10 properly explained. As you know, a treating source is 11 entitled to controlling weight, the treating source opinions, 12 if it is supported by medically acceptable, clinical and 13 laboratory diagnostic techniques and not inconsistent with 14 other substantial evidence. And if they're not afforded 15 controlling weight, then the Burgess factors must be examined 16 and a detailed discussion of the weight given to it should 17 follow. I recognize that the Second Circuit has said, 18 including in Estrella, that the violation of the treating 19 source rule should not result in a remand if a searching 20 review of the record convinces the Court that the treating 21 source rule was not violated. I cannot say that in this 22 case. 23 The unanimous opinions are that plaintiff suffers from 24 some degree of limitation in her ability to perform within a 25 schedule and stay on task. There is case law that says that 1 if opinions are unanimous on an issue, the opinions can be 2 overridden only if there is overwhelming evidence to the 3 contrary, which I do not find in this case. 4 The Commissioner has cited a couple of cases which I 5 find are distinguishable. One is Heaman versus Berryhill, 6 765 F. App'x 498. That's from the Second Circuit, 2019. In 7 that case the ALJ relied not on the ALJ lay opinion, but 8 rather the opinions of a consultative examiner, Dr. Magurno, 9 and a medical expert, Dr. Efobi, in addition to treatment 10 notes, clinical findings and diagnostic testing of record. 11 Here there aren't any medical opinions that support any 12 conclusion that plaintiff would not be absent and would not 13 be off task as opined. 14 Similarly, Barry versus Colvin, 606 F. App'x 621, from 15 the Second Circuit 2015, is distinguishable. In that case 16 the medical source statement of the state agency psychologist 17 was credited and the statement was, as discussed above, 18 substantial evidence, including Barry's own statements, 19 treatment notes from her physicians, and the opinion of 20 Dr. Andrews, a state agency psychologist who concluded the 21 plaintiff had no significant limitations in performing 22 activities within a schedule, maintaining regular attendance, 23 or being punctual within customary tolerances supported the 24 RFC. In this case Dr. Harding did find limitations in those 25 areas, and so I find Barry is also distinguishable. 1 In conclusion, I find that the Commissioner's 2 determination is not supported by substantial evidence, the 3 residual functional capacity fails to consider the 4 limitations in plaintiff's ability to perform within a 5 schedule and to maintain on task status. And that, 6 unfortunately, affected the step five determination where the 7 defendant must carry its burden, or his burden, because the 8 hypothetical posed to the vocational expert was not supported 9 by substantial evidence. 10 It's a close case because I think that one could 11 effectively argue that there is persuasive evidence of 12 disability in this case, but I'm not going to direct the 13 finding of disability. I think the matter should be remanded 14 for a further consideration of plaintiff's ability to perform 15 on schedule and on task and an explanation of why, if it is 16 found that she can, why she can and on what basis that 17 conclusion is made. 18 So, I will grant judgment on the pleadings to plaintiff 19 without a directed finding of disability and remand the 20 matter for further consideration. 21 Thank you both for excellent presentations. Please stay 22 safe. 23 * * * 24 25 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