Smith v. Commissioner of Social Security

Opinion

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

SAMANTHA ANNE S.,

Plaintiff, v. Civil Action No. 6:20-CV-0578 (DEP) COMMISSIONER OF SOCIAL SECURITY,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

CONBOY, McKAY, BACHMAN PETER L. WALTON, ESQ. & KENDALL, LLP 407 Sherman Street Watertown, NY 13601

FOR DEFENDANT

SOCIAL SECURITY ADMIN. RAMI VANEGAS, ESQ. 625 JFK Building 15 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), are cross-motions for judgment on the pleadings.1 Oral

argument was heard in connection with those motions on August 31, 2021, 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: September 2, 2021 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x SAMANTHA ANNE S.,

Plaintiff,

vs. 6:20-CV-578

COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on August 31, 2021, 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: CONBOY, McKAY LAW FIRM Attorneys at Law 407 Sherman Street Watertown, New York 13601-9990 BY: PETER L. WALTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel J.F.K. Federal Building Room 625 Boston, Massachusetts 02203 BY: RAMI VANEGAS, 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 (The Court and all counsel present by 2 telephone.) 3 THE COURT: Let me begin by thanking counsel for 4 excellent presentations, I've enjoyed working with you and on 5 this case. 6 I have before me a challenge to the Commissioner's 7 adverse determination finding that plaintiff was not disabled 8 at the relevant times and therefore ineligible for the 9 benefits that she sought. The challenge is brought pursuant 10 to 42 United States Code Section 405(g). 11 The background is as follows: Plaintiff was born 12 in May of 1992 and is currently 29 years of age. She was 23 13 years old on December 23, 2015, the alleged onset date of her 14 disability. She stands five foot two inches in height and 15 has weighed between 160 and 189 pounds at various times. 16 Plaintiff lives in Lyons Falls with her boyfriend and four 17 children who, in February of 2019, were ages 8, 6, 5, and 2. 18 Plaintiff is a high school graduate and has an associate's 19 degree, a two-year degree in computer science. While she was 20 in high school, she was in regular classes. Plaintiff 21 drives. 22 Plaintiff stopped working on December 23, 2015 as a 23 result of a workplace injury resulting in her having to go to 24 the emergency room for treatment of back pain radiating into 25 her leg. Reports of the visit are at 296 to 298 of the 1 administrative transcript. At that time, and between 2 February of 2014 and the date of injury, plaintiff worked 3 three days per week for 12 hours each in a group home as a 4 residential counselor and aide. It was a home where five 5 residents were placed. She also worked from June of 2008 to 6 August of 2008 eight days per week -- I'm sorry, eight hours 7 a day four days per week in a supermarket. 8 Physically, plaintiff suffers from lumbar 9 degenerative disk disease, headaches, leg and foot numbness, 10 various neuropathies including peripheral neuropathy, 11 Charcot-Marie-Tooth neuropathy or disease, obesity, hand 12 issues, and she apparently may have undergone gallbladder 13 surgery in 2017 as well. The Charcot-Marie-Tooth disease as 14 I understand it has nothing to do with teeth, but instead is 15 an inherited nerve problem causing abnormalities in the 16 nerves supplying feet, legs, hands, and arms and affecting 17 both motor and sensory nerves. 18 Plaintiff underwent decompression and fusion disk 19 surgery at L4-L5 on March 16, 2016, report of that surgery is 20 at 284 to 285 of the administrative transcript. The surgery 21 was performed by Dr. Clifford Soults. 22 Plaintiff's back and other parts of her body that 23 have been affected over time have been the subject of various 24 tests. Prior to surgery, on February 25, 2016, plaintiff 25 underwent magnetic resonance imaging, or MRI, testing. The 1 result of that testing is at 565 of the administrative 2 transcript. It is reported as grade 2 anterolisthesis of 3 L5-S1 with degenerative changes of the L5-S1 disk space in 4 association with right-sided neural foraminal stenosis with 5 suspected nerve impingement. Left-sided neuroforaminal 6 narrowing is also noted to a lesser degree. 7 After surgery, she underwent MRI testing on 8 November 3, 2017. A report of that testing is at 604 and 605 9 of the administrative transcript. The impression from that 10 testing was intradiscal fusion L5-S1 with intradiscal spacer. 11 Canal and neural foramina are widely patent. No focal disk 12 herniation seen. 13 MRI testing on May 28, 2019 was performed. The 14 impression of that was postoperative changes at L5-S1, no 15 focal disk herniations or signs of stenosis. Some prominent 16 edema between the posterior articular surfaces, most severe 17 at L3-L4. 18 There was a CT scan performed on February 24, 2017. 19 It was reviewed and a report of that review is at 494 of the 20 administrative transcript, which states, "Reviewed a CT scan 21 of the lumbar spine. CT demonstrates good position of graft 22 and hardware. There is some evidence of bony growth through 23 the cage and on the left side. There is some foraminal 24 stenosis at L5-S1 on the left." 25 A CT scan was also performed again on June 6, 2019. 1 The report of that is at 24 and 25 of the administrative 2 transcript. The impression from that testing was, "There has 3 been an L5-S1 fusion. Persistent spondylolisthesis is less 4 marked than the previous study. There has been a wide L5 5 laminectomy. There is no significant thecal or nerve root 6 compression. There is bilateral spondylolysis at L5. Fusion 7 grafts have been placed at these levels and there appears to 8 be complete fusion of the left pars defect and possibly the 9 right." 10 As plaintiff's counsel noted, there was a nerve 11 conduction study performed on September 30, 2014. It is 12 reported at 650 to 653 of the administrative transcript. The 13 conclusion noted was demyelinating peripheral neuropathy 14 consistent with CMT. 15 The plaintiff underwent physical therapy, briefly, 16 beginning in January 13, 2016, but quit after claiming that 17 it aggravated her back. She quit on or about February 1, 18 2016. She was also discharged from her doctor's office 19 because she failed to follow through with physical therapy. 20 Plaintiff has seen Dr. John Leuenberger at South 21 Lewis Health Center from 2016, neurosurgeon Dr. Clifford 22 Soults, Dr. Lev Goldiner, Dr. Nathaniel Gould, and FNP David 23 Campola, all at Slocum-Dickson Medical Center. 24 Plaintiff has been prescribed various medications 25 including hydrocodone, Percocet, Duloxetine, gabapentin, 1 Fioricet, Prednisone, and tramadol. She has also received 2 epidural steroid injections, SI joint injections, and facet 3 injections. 4 In terms of activities of daily living, plaintiff 5 is able to shower, she bathes three times a day, she can 6 dress, cook, do dishes, shop, watch television, listen to the 7 radio, read, she goes out, she cares for her children with 8 help, she plays bingo. She never smoked. 9 Plaintiff procedurally applied for Title II 10 benefits on April 26, 2017 alleging an onset date of 11 December 23, 2015, and claiming disability based on a back 12 injury. A hearing was conducted to address that application 13 on February 21, 2019 by Administrative Law Judge Michael 14 Burrichter. The administrative law judge issued an 15 unfavorable decision on March 29, 2019, which became final 16 determination of the agency on April 30, 2020, when the 17 Appeals Council of the Social Security Commissioner denied 18 review. It was noted that there was additional evidence 19 exhibited by the Appeals Council. This action was commenced 20 on May 27, 2015 and is timely. 21 In his decision, the ALJ applied the familiar 22 five-step sequential test for determining disability. He 23 first noted that plaintiff was insured through September 30, 24 2017. He next found that plaintiff had not engaged in 25 substantial gainful activity between December 23, 2015 and 1 the date of last-insured status. 2 At step two, he found that plaintiff does suffer 3 from severe impairments that impose more than minimal 4 limitations on her ability to perform basic work functions, 5 including lumbar degenerative disk disease and spondylosis 6 status post fusion and decompression, Charcot-Marie-Tooth 7 neuropathy, peripheral neuropathy, and obesity, rejecting 8 various other conditions that were also claimed and are 9 listed primarily at page 34 of the administrative transcript. 10 At step three, the administrative law judge 11 concluded that plaintiff's conditions do not meet or 12 medically equal any of the listed presumptively disabling 13 conditions set forth in the Commissioner's regulations, 14 specifically considering Listings 1.02, 1.04, and 11.14. He 15 also noted he had considered plaintiff's obesity pursuant to 16 Social Security Ruling 02-01p. 17 The administrative law judge next concluded that 18 plaintiff has the residual functional capacity, or RFC, to 19 perform sedentary work except that she can lift and carry up 20 to 10 pounds occasionally and lift or carry less than 21 10 pounds frequently, stand and/or walk for two hours out of 22 an eight-hour workday, and sit for six hours out of an 23 eight-hour workday. He went on to conclude that claimant 24 should never climb ladders, ropes, and scaffolds, kneel, 25 crouch, and crawl and can occasionally climb ramps and 1 stairs, balance, and stoop. The claimant can occasionally 2 use foot controls bilaterally, the claimant should never work 3 at unprotected heights, with moving mechanical parts, or 4 operate a motor vehicle, and can occasionally work in 5 vibration. 6 Applying that RFC finding, at step four the 7 administrative law judge concluded that plaintiff is not 8 capable of performing her past relevant work as a resident 9 aide, which was characterized as a medium exertional position 10 with an SVP of 6, according to the vocational expert who 11 testified at the hearing. 12 At step five, the administrative law judge first 13 noted that if plaintiff were capable of performing a full 14 range of sedentary work, a finding of no disability would be 15 directed by Medical-Vocational Guideline or Grid Rule 201.28. 16 Based on testimony of a vocational expert and the existence 17 of additional limitations that would shrink the job base upon 18 which the Grids are predicated, the vocational expert 19 testified and the administrative law judge found that 20 plaintiff is capable of performing available work in the 21 national economy and cited three representative positions 22 including document preparer, semiconductor bonder, and egg 23 processor, and therefore concluded that plaintiff was not 24 disabled at the relevant times. 25 As you know, the court's function is extremely 1 limited to determining whether correct legal principles were 2 applied and the resulting determination was supported by 3 substantial evidence which is defined as such admissible 4 evidence as a reasonable fact finder would conclude 5 sufficient to support a finding of fact. The Second Circuit 6 in Brault v. Social Security Administration Commissioner, 683 7 F.3d 443 from 2012 noted that this is an extremely 8 deferential demanding standard, even more so than the clearly 9 erroneous standard that lawyers are familiar with. The court 10 noted in Brault that once a fact is found, the fact can be 11 rejected only if a reasonable fact finder would have to 12 conclude otherwise. 13 In her brief, plaintiff raises three issues. The 14 first is whether the administrative law judge substituted his 15 lay opinion for medical opinions and essentially played 16 doctor and interpreted raw medical data to support a 17 conclusion. 18 The second addresses the medical opinions in the 19 record and whether they were properly considered under the 20 new regulations, specifically focusing on the opinions of 21 Dr. Puri, which was essentially elevated over the medical 22 opinions from Dr. Leuenberger, plaintiff's treating source. 23 And thirdly, the argument is that the residual 24 functional capacity finding of the administrative law judge 25 is not supported. 1 As a backdrop, I note, as the administrative law 2 judge did, that we're dealing with a closed period from 3 December 13, 2015 to September 30, 2017. I also note that it 4 is plaintiff's burden through step four, and including at the 5 residual functional capacity stage, to establish her 6 limitations based upon the conditions that she suffers from. 7 Of course pivotal to any determination of disability or no 8 disability is the finding of a residual functional capacity 9 which represents a range of the tasks the plaintiff is 10 capable of performing notwithstanding her impairments. 11 Ordinarily, an RFC represents a claimant's maximum ability to 12 perform sustained work activities in an ordinary setting at a 13 regular and continuing basis, meaning eight hours a day for 14 five days a week or an equivalent schedule. And of course an 15 RFC determination is informed by consideration of all the 16 relevant medical and other evidence and must be supported by 17 substantial evidence. 18 I recited the residual functional capacity found by 19 the administrative law judge in this case. It begins with 20 the finding of sedentary work which is defined by regulation, 21 and specifically 20 C.F.R. Section 404.1567(a), as involving 22 lifting no more than 10 pounds at a time and occasionally 23 lifting or carrying articles like docket files, ledgers, and 24 small tools. Although a sedentary job is defined as one 25 which involves sitting, a certain amount of walking and 1 standing is often necessary in carrying out job duties. Jobs 2 are sedentary if walking and standing are required 3 occasionally and other sedentary criteria are met. 4 Subsequent rulings, specifically SSR 96-9p, has clarified 5 that sedentary work generally involves periods of standing or 6 walking for no more than two hours of an eight-hour workday 7 and sitting up to a total of approximately six hours in a 8 similar period. 9 In this case, the administrative law judge 10 summarized the basis for his finding of the RFC, including at 11 the bottom of page 38 of the administrative transcript. He 12 relied on the conservative treatment undergone by the 13 plaintiff, the fact that she quit physical therapy, limited 14 pain medications and injections, the medical evidence which 15 generally included normal physical exams after her surgery, 16 generally negative straight-leg raise findings, the fact that 17 many of the treatment notes reflect the gait and stance 18 generally normal. He relied on the MRI and CT testing post 19 surgery, the fact that plaintiff did not require an assistive 20 device and that she was able to get on and off the 21 examination table. He relied on Dr. Puri's medical source 22 statement, Dr. Gould's finding and Dr. Dickerson, although he 23 found that plaintiff was less limited than indicated in 24 Dr. Dickerson's opinion. He also relied on Dr. Leuenberger 25 to a large degree although it's not entirely consistent with 1 the RFC, as plaintiff points out, and the Inertia residual 2 functional capacity testing and assessment that is in the 3 record. 4 The administrative law judge acknowledged that 5 there's some outliers and the court will acknowledge, as 6 plaintiff argues, that there are some discrepancies and there 7 are some findings that would support plaintiff's argument, 8 but the crux is whether substantial evidence supports the 9 residual functional capacity, even if it could be argued that 10 the medical evidence also would support a contrary finding. 11 I reiterate that I must overturn the result only if 12 a reasonable fact finder would have to conclude otherwise, 13 and I'm not able to make that finding. I believe the 14 residual functional capacity is supported by substantial 15 evidence. 16 In terms of the medical evidence, obviously it is 17 governed by the new regulations which took effect in March of 18 2017 and are embodied in 20 C.F.R. Section 404.1520(c). I 19 also note that under Veino v. Barnhart, 312 F.3d 578, Second 20 Circuit 2002, resolution of conflicts in medical opinions and 21 other evidence is entrusted to the administrative law judge 22 in the first instance. I also note that while the argument 23 is raised that plaintiff -- the administrative law judge, by 24 plaintiff that the administrative law judge relied on raw 25 data, it is perfectly proper, and not only proper but 1 necessary for the administrative law judge, in weighing 2 opinion evidence, to review whether it is consistent with 3 other evidence in the record, including treatment notes, 4 clinical findings, and diagnostic tests. There is a 5 distinction between doing that and interpreting raw data and 6 substituting an opinion for those of a medical source. Terri 7 G. v. Commissioner of Social Security, 2019 WL 1318074 from 8 the Northern District of New York, March 22 of 2019. 9 In this case, I also note that there is no 10 requirement in the law or in the regulations that a residual 11 functional capacity finding mirror any one particular medical 12 opinion. It may draw from many opinions and be supported if 13 it finds substantial evidence support. In this case, I 14 interpret plaintiff's argument as asking the court to reweigh 15 the medical evidence, something that is not a function of the 16 reviewing court, as noted in Terri G. 17 The focus of the next argument is on the weight of 18 medical opinions. I note there are many opinions in the 19 record and many, in part at least, are supportive of the 20 residual functional capacity finding. There is an RFC 21 assessment from Raymond Alessandrini, OTR, from February 28, 22 2018 that appears at 579 to 583 of the administrative 23 transcript that was performed on February 28, 2018. Among 24 other things, it notes that the plaintiff is capable of 25 assuming a position in the light strength category where the 1 maximum lifting capacity is 15 pounds and maximum carrying 2 capacity is 10 pounds. He does note no walking at all, the 3 plaintiff should not walk, no pushing more than 20 pounds, no 4 pulling more than 30 pounds, no balancing activities that 5 require crouching, so forth. 6 The record also contains a consultative examination 7 report from Dr. Kautilya Puri from July 26, 2017, appears at 8 570 to 573 of the administrative transcript. Based on her 9 examination, Dr. Puri notes, "No limitations to communication 10 and fine motor movements, moderate limitation to gross motor 11 movements of bilateral feet with mild to moderate limitations 12 to her gait and to her activities of daily living on 13 examination today with moderate limitations to squatting, 14 bending, stooping, and kneeling and marked limitations to 15 lifting weight." The administrative law judge considered 16 that opinion and found it entitled, at page 39, to 17 significant weight, or finding it significantly persuasive. 18 Dr. Leuenberger -- I'm sorry, Dr. Nathaniel Gould 19 has issued opinions at various times including June 12, 2017, 20 that's at 618; July 17, 2017, 614; September 12, 2017, that's 21 at 613; September 22, 2017; January 10, 2018, and that's 22 at -- the last one is at 603; and February 8, 2018 at 584, 23 generally supportive of plaintiff's ability to perform the 24 exertional requirements of sedentary work. 25 Dr. Leuenberger, plaintiff's treating source, 1 issued an opinion on December 21, 2018, it's at 624 to 627 2 and it's consistent with the lifting requirements of the 3 residual functional capacity, but as plaintiff points out, 4 standing and walking is getting to be less than a half hour 5 in an eight-hour workday and sitting less than six hours in 6 an eight-hour workday. The administrative law judge 7 addressed Dr. Leuenberger's opinions, there was an earlier 8 opinion reference on page 39 and this opinion on page 40, and 9 found to be partially persuasive. 10 The administrative law judge also considered the 11 opinion of state agency consultant Dr. R. Dickerson from 12 August 7, 2017, that found that, among other things, 13 significantly that plaintiff can stand and/or walk six hours 14 in an eight-hour workday and sit six hours in an eight-hour 15 workday, that's at page 82, and concluded that plaintiff is 16 capable of performing light work with some postural and 17 environmental limitations. That was given weight although 18 the administrative law judge acknowledged that plaintiff was 19 more limited than Dr. Dickerson found. 20 I note that Dr. Leuenberger is a treating source 21 but under the new regulations, and specifically 20 C.F.R. 22 Section 404.1520(c), the treating source rule has been 23 abrogated. Consideration of medical sources is governed by 24 20 C.F.R. Section 404.1513 defining medical opinions and in 25 1520(c) which requires consideration of five factors -- well, 1 I'm sorry, it lists five relevant factors, supportability, 2 consistency, relationship with the claimant, specialization, 3 and other factors. It requires the ALJ to address 4 supportability and consistency, and the ALJ may, but does not 5 need to, address the other three factors. So 6 Dr. Leuenberger's opinions are not entitled to controlling 7 weight any longer. 8 Under Veino, it is still for the ALJ to resolve 9 conflicts. I suppose the decision could have been more 10 fulsome in addressing supportability and consistency, but 11 when I read the decision of the ALJ as a whole, I believe 12 that it is in there, and of course under the Second Circuit's 13 decision in Estrella, and I think this part still holds 14 weight even though it was decided under the former 15 regulations, when the formulaic regulations are not 16 specifically followed in rote fashion, if the court can, 17 after making a reaching review of the record, determine that 18 the regulations were followed in spirit at least, then there 19 is no basis to reverse and remand. And I find that the 20 decision adequately addresses why Dr. Puri was given more 21 weight than Dr. Leuenberger and so I believe that there is no 22 error in that regard. 23 So in conclusion, I find substantial evidence 24 supports the RFC finding of the administrative law judge, the 25 Commissioner properly carried her burden at step five through 1 vocational expert testimony that was predicated on a 2 hypothetical that parallelled the RFC finding. I will 3 therefore grant judgment on the pleadings to the defendant 4 and order dismissal of plaintiff's complaint. 5 Thank you both for excellent presentations, I hope 6 you enjoy the rest of your summer. 7 MR. WALTON: Thank you, your Honor. 8 MS. VANEGAS: Thank you, your Honor. 9 (Proceedings Adjourned, 1:46 p.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 CERTIFICATE OF OFFICIAL REPORTER 3 4 5 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 6 Official Realtime Court Reporter, in and for the 7 United States District Court for the Northern 8 District of New York, DO HEREBY CERTIFY that 9 pursuant to Section 753, Title 28, United States 10 Code, that the foregoing is a true and correct 11 transcript of the stenographically reported 12 proceedings held in the above-entitled matter and 13 that the transcript page format is in conformance 14 with the regulations of the Judicial Conference of 15 the United States. 16 17 Dated this 1st day of September, 2021. 18 19 20 /S/ JODI L. HIBBARD

21 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 22 23 24 25