Smith v. O'Malley

• Court: District Court, N.D. New York
• Decided: March 7, 2024
• Docket: 5:22-cv-01271
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________

Frank S.,

Plaintiff,

v. 5:22-CV-1271 (ML) COMMISSIONER OF SOCIAL SECURITY,

Defendant. ________________________________________

APPEARANCES: OF COUNSEL:

Legal Aid Society of Mid-New York, Inc., ELIZABETH V. LOMBARDI, ESQ. Syracuse Office Counsel for the Plaintiff 221 South Warren Street, Suite 310 Syracuse, New York 13202

SOCIAL SECURITY ADMINISTRATION CANDACE BROWN CASEY, ESQ. Counsel for the Defendant Special Assistant U.S. Attorney 6401 Security Boulevard Baltimore, Maryland 21235

MIROSLAV LOVRIC, United States 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

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. in connection with those motions on March 4, 2024, 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 was not supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by 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 ORDERED as follows: 1) Plaintiff's motion for judgment on the pleadings (Dkt. No. 9) is GRANTED. 2) Defendant’s motion for judgment on the pleadings (Dkt. No. 13) is DENIED. 3) The Commissioner’s decision denying Plaintiff Social Security benefits is REVERSED. 4) This matter is REMANDED to the Commissioner, without a directed finding of disability, for further administrative proceedings consistent with this opinion and the oral bench decision, pursuant to sentence four of 42 U.S.C. § 405(g). 5) The Clerk of Court is respectfully directed to enter judgment, based upon this determination, REMANDING this matter to the Commissioner for further administrative proceedings consistent with this opinion and the oral bench decision, pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case. Dated: March 7, 2024 Binghamton, New York > Miroslav Lovric United States Magistrate Judge Northern District of New York

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ---------------------------------------------------x FRANK EDWARD S., JR.,

vs. 5:22-CV-1271

MARTIN J. O'MALLEY, Commissioner of Social Security, Defendant. ---------------------------------------------------x DECISION - March 4, 2024 the HONORABLE MIROSLAV LOVRIC United States Magistrate Judge, Presiding

APPEARANCES (by telephone)

For Plaintiff: LEGAL AID SOCIETY OF MID-NEW YORK, INC. Syracuse Office 221 South Warren Street Syracuse, New York 13202 BY: ELIZABETH V. LOMBARDI, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION 6401 Security Boulevard Baltimore, MD 21235 BY: CANDACE M. BROWN CASEY, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: Plaintiff commenced this proceeding 2 pursuant to Title 42, United States Code, Section 405(g) to 3 challenge the adverse determination by the Commissioner of 4 Social Security finding that he was not disabled at the 5 relevant times and therefore ineligible for the benefits that 6 he sought. 7 By way of background the Court notes as follows. 8 Plaintiff was born in 1965. He is currently approximately 58 9 years old and will be 59 years old in approximately 23 days. 10 He was 52 years old on the date of his application for 11 benefits. Plaintiff stands approximately 5 feet, 11 inches 12 and weighs approximately 290 pounds. Plaintiff attended 13 special education classes before leaving school in the 14 ninth grade. He eventually obtained his GED while 15 incarcerated. He resides alone but testified that he often 16 had a friend come over to assist with household chores. 17 Plaintiff has a limited work history, with no 18 full-time employment in the fifteen years prior to his 19 current application for benefits. Plaintiff received social 20 security disability benefits between June 2013 and 21 approximately 2017, due to functional limitations imposed by 22 his psychiatric impairments. Plaintiff testified that his 23 disability benefits were discontinued when he was 24 incarcerated. See Transcript at pages 61 through 62. 25 Plaintiff has a lengthy history of alcohol and 1 substance abuse and has participated in both inpatient and 2 outpatient addiction rehabilitation. 3 Plaintiff applied for Title XVI benefits on 4 September 8, 2017, alleging disability beginning 5 February 2nd, 2000. In support of his claim for disability 6 benefits, Plaintiff claimed disability based on mental health 7 impairments including social anxiety, depression, and 8 schizophrenia. During the administrative process, Plaintiff 9 also claimed physical functional limitations stemming from 10 chronic back pain and obesity. 11 Plaintiff's application was initially denied on 12 February 8, 2018. Following a hearing, Administrative Law 13 Judge Bruce S. Fein issued an unfavorable decision on July 16 14 of 2019. The Appeals Council remanded Plaintiff's claim for 15 additional consideration on August 13th of 2020. ALJ Fein 16 held a telephonic hearing on January 14th, 2021 and issued 17 another unfavorable determination on February 11th of 2021. 18 This decision became the Commissioner's final determination 19 after the Appeals Council denied Plaintiff's request for 20 review on November 1 of 2022. 21 This action was commenced on November 29th of 2022 22 and it is timely. 23 In his February 11, 2021 decision, ALJ Fein applied 24 the familiar five-step test for determining disability. 25 At step one, he concluded that Plaintiff had not 1 engaged in substantial gainful activity from his application 2 date of September 8, 2017. 3 At step two, the ALJ concluded that Plaintiff had 4 the following severe impairments: Degenerative disc disease 5 of the lumbar spine, schizoaffective disorder depressive 6 type, alcohol use disorder, and stimulant use disorder 7 amphetamine type. 8 At step three, the ALJ concluded that Plaintiff did 9 not have an impairment or combination of impairments that met 10 or medically equaled the severity of one of the listed 11 impairments in 20 CFR Sections 416.920(d), 416.925, and 12 416.926. And the ALJ focused on the following listings: 13 listing 1.04 dealing with disorders of the spine; listing 14 12.03 dealing with schizophrenia spectrum and other psychotic 15 disorders, and listing 12.04 dealing with depressive, bipolar 16 and related disorders. 17 Next, the ALJ determined that Plaintiff had the 18 residual functional capacity to perform less than the full 19 range of medium work. Specifically, the ALJ found Plaintiff 20 can frequently climb ramps or stairs, and can frequently 21 balance, stoop, kneel, crouch, or crawl. The ALJ further 22 found that the Plaintiff is able to perform work that is 23 limited to simple, routine, and repetitive tasks, but should 24 not work at a production rate or on pace work. The ALJ 25 limited Plaintiff to work in a low stress job defined as only 1 requiring occasional decision-making, occasional changes in 2 the work setting, and occasional exercise of judgment. The 3 ALJ found that Plaintiff was able to occasionally interact 4 with co-workers, supervisors and the public. 5 In reaching his RFC determination, the ALJ 6 considered multiple medical and psychiatric opinions. He 7 found the December 20th, 2017 opinion from consultative 8 physical examiner Dr. Elke Lorensen to be only partially 9 persuasive because it was not entirely consistent with the 10 evidence in the overall record. Dr. Lorensen had opined that 11 Plaintiff had no gross limitations in sitting, standing, 12 walking, and handling small objects with his hands, and 13 moderate limitations for bending, lifting, and reaching. The 14 ALJ deemed these postural limitations to be inconsistent with 15 the consultative examination results and the other record 16 evidence. In particular, the ALJ noted that Plaintiff had 17 decreased range of motion of the lumbar spine, but showed no 18 evidence of pain with movement, and demonstrated full range 19 of motion in the shoulders, elbows, forearms, and wrists 20 bilaterally. 21 The ALJ found the only other medical opinion of 22 Plaintiff's physical functional limitations, that of 23 non-examining state agency consultant Dr. C. Krist, to be 24 less persuasive. Dr. Krist reviewed Plaintiff's then-current 25 medical records, including Dr. Lorensen's examination report, 1 in February of 2018, and opined that Plaintiff was capable of 2 performing light work with only occasional stooping and 3 crouching. This included a limitation to frequent lifting 4 and carrying up to 10 pounds, and occasional lifting and 5 carrying up to 20 pounds. In specifically rejecting this 6 portion of Dr. Krist's opinion, the ALJ cited Plaintiff's 7 conservative treatment history and found, quote, "no 8 indication in the record" that his physical impairments 9 would, quote, "impair the claimant's ability to lift more 10 than 20 pounds occasionally." 11 With regard to Plaintiff's mental health 12 impairments, the ALJ considered the December 6th, 2017 13 consultative psychiatric opinion of Dr. Dennis Noia, who 14 opined that Plaintiff had no limitations understanding, 15 remembering, or applying simple directions and instructions; 16 but was moderately limited in his ability to understand, 17 remember, or apply complex directions and instructions. He 18 further opined that Plaintiff had moderate limitations using 19 reasoning and judgment to make work-related decisions. 20 Dr. Noia opined that Plaintiff had mild limitations in a 21 number of functional areas, including social interaction with 22 supervisors, co-workers and the public; sustaining 23 concentration and performing a task at a consistent pace; and 24 sustaining an ordinary routine with regular attendance at 25 work. He also opined that Plaintiff had, quote, "moderate to 1 marked" limitations with regard to regulating emotions, 2 controlling behavior, and maintaining well-being. The ALJ 3 found this opinion to be, quote, "partially persuasive." In 4 particular, the ALJ's RFC determination included lesser 5 limitations with regard to controlling his behavior and 6 maintaining well-being, and greater limitations on social 7 interaction. 8 The ALJ also considered the opinion of 9 non-examining psychiatric consultant, Dr. K. Lieber-Diaz, who 10 reviewed Plaintiff's mental health records in January of 11 2018. Dr. Lieber-Diaz opined that Plaintiff had moderate 12 limitations in a number of functional areas, those being 13 remembering locations and work-like procedures; 14 understanding, remembering, and carrying out detailed 15 instructions; performing activities within a schedule; 16 maintaining regular attendance; being punctual within 17 customary tolerances; working in coordination with and in 18 proximity to others; maintaining attention and concentration 19 for extended periods; setting realistic goals or making 20 plans; completing a normal workday and workweek without 21 interruptions from mental health symptoms; interacting 22 appropriately with supervisors, co-workers, and the general 23 public; and performing at a consistent pace without an 24 unreasonable number and length of rest periods. 25 The ALJ found Dr. Lieber-Diaz's opinion only, 1 quote, "partially persuasive." In particular, the ALJ 2 rejected the restrictions on Plaintiff's ability to complete 3 a normal workday or workweek, or maintain a regular schedule 4 or attendance, in light of evidence that Plaintiff is 5 compliant with his medication, was generally cooperative 6 during appointments, and completed an inpatient addiction 7 treatment program. 8 There were several mental health opinions from 9 treating sources in the record. Nurse Practitioner Thomas 10 Dowling had provided mental health treatment to Plaintiff 11 since October 2017, and prepared a May 2019 opinion, 12 co-signed by Dr. Steven Fogelman, describing a number of, 13 quote, "marked or serious" limitations in social interaction, 14 dealing with stress, and performing at a consistent pace. 15 Dowling and Fogelman also opined that Plaintiff's mental 16 health impairments were likely to cause him to miss more than 17 four workdays per month and be late to work more than four 18 days per month. The ALJ deemed this opinion not persuasive 19 in light of the record evidence, including Plaintiff's 20 cooperative interactions with peers and staff in treatment 21 facilities. 22 The ALJ also considered the December 10, 2020 23 opinion co-signed by two other treating sources, that being 24 Dr. Scott Ulberg and Nurse Practitioner Kourtney Darrow. At 25 the time of the opinion, they had seen Plaintiff at least 1 monthly since May of 2020. The Ulberg/Darrow opinion found a 2 number of, quote, "extreme" limitations, including 3 Plaintiff's ability to understand and learn terms, 4 instructions and procedures; to use reason and judgment to 5 make work-related decisions; to cooperate and handle conflict 6 with others; to maintain attention and concentration in the 7 workplace; and to deal with normal work stress. Their 8 opinion also identified, quote, "marked limitations" in 9 Plaintiff's ability to ask simple questions and request 10 assistance; to understand, remember, and carry out very short 11 and simple oral instructions; and handle simple social 12 interactions. 13 In their opinion, Plaintiff was likely to be absent 14 from work more than four days per month and be late for work 15 more than four days per month. In a brief narrative, 16 Ulberg/Darrow noted that Plaintiff had missed a number of 17 appointments and arrived intoxicated for others, but 18 functioned well when he was compliant with his psychiatric 19 medication. The ALJ deemed the Ulberg/Darrow opinion to be 20 less persuasive, citing evidence in the overall record that 21 suggested greater functional abilities. 22 At step four, the ALJ found that Plaintiff had no 23 past relevant work. Relying on hearing testimony from a 24 vocational expert, also referred to as a VE, the ALJ found 25 that, considering Plaintiff's age, education, work 1 experience, and RFC, there are a number of jobs that exist in 2 significant numbers in the national economy that Plaintiff 3 can perform. Accordingly, the ALJ found that the Plaintiff 4 was not disabled from his application date through the date 5 of the February 2021 disability determination. 6 I'm next turning to the Plaintiff's arguments. As 7 you know, this Court's functional role in this case is 8 limited and extremely deferential. I must determine whether 9 correct legal principles were applied and whether the 10 determination is supported by substantial evidence, defined 11 as such relevant evidence as a reasonable mind would find 12 sufficient to support a conclusion. As the Second Circuit 13 noted in Brault v. Social Security Administration 14 Commissioner, found at 683 F.3d 443, 2012 case, the standard 15 is demanding, more so than the clearly erroneous standard. 16 The Court noted in Brault that once there is a finding of 17 fact, that fact can be rejected only if a reasonable 18 factfinder would have to conclude otherwise. 19 Plaintiff raises several contentions in this 20 proceeding. First, the Plaintiff argues the ALJ erred in 21 evaluating the medical opinions of Plaintiff's physical and 22 mental health impairments. Second, Plaintiff argues the ALJ 23 erred by excluding Plaintiff's obesity from the list of 24 severe impairments at step two of the sequential analysis and 25 that the ALJ did not adequately consider its impacts on 1 Plaintiff's RFC. Third, Plaintiff argues that the ALJ failed 2 to properly investigate potential conflicts between the 3 Dictionary of Occupational Titles and the vocational expert 4 testimony regarding jobs that Plaintiff can perform. 5 The Court's going to begin its analysis as follows. 6 At their most basic, the amended regulations require that the 7 ALJ explain his findings regarding the supportability and 8 consistency for each of the medical opinions, pointing to 9 specific evidence in the record supporting those findings. 10 See case Raymond M. versus Commissioner of Social Security, 11 that's found at 5:19-cv-1313, and that is a Judge Baxter case 12 found at 2021 Westlaw 706645, at page 8, Northern District of 13 New York, February 22 of 2021. This Court finds that the ALJ 14 failed to adequately explain his reasons for rejecting or 15 discounting multiple medical or psychiatric opinions that 16 were significantly more restrictive than the ALJ's RFC 17 determination, and thus remand for further administrative 18 proceedings is required. 19 First, the ALJ failed to adequately explain his 20 analysis of the supportability of the opinions addressing 21 Plaintiff's physical functional limitations. The ALJ 22 determined that Plaintiff was capable of performing medium 23 work. By definition, medium work involves lifting no more 24 than 50 pounds at a time with frequent lifting or carrying of 25 objects weighing up to 25 pounds. It is unclear how the ALJ 1 reached this conclusion. Dr. Krist provided a specific 2 lifting restriction in his opinion, limiting Plaintiff to 3 frequent lifting and carrying up to 10 pounds and occasional 4 lifting and carrying up to 20 pounds, as found in light work 5 occupations. 6 Consultative examiner Dr. Lorensen opined only that 7 Plaintiff had moderate limitations with regard to bending, 8 lifting, or reaching. While this language is imprecise, 9 courts in the Second Circuit have found that moderate 10 limitations in a Plaintiff's ability to perform exertional 11 activities typically correlates to an RFC for light work. 12 See case of Timothy James C. versus Kijakazi, that's found at 13 5:22-cv-1146, and that is a District Court Judge D'Agostino 14 and Magistrate Judge Dancks case found at 2023 Westlaw 15 9116647, at page 7, Northern District of New York, 16 October 23rd of 2023. 17 In finding the Krist and Lorensen opinions to be 18 unsupported by the overall record, the ALJ only cited 19 Plaintiff's conservative treatment history and his regular 20 use of a bicycle as contrary evidence. The ALJ never 21 explained how either factor suggests an ability to meet the 22 exertional demands of medium work, particularly the lifting 23 requirements. Indeed, Plaintiff's mere use of a bicycle 24 appears to be particularly poor evidence of his ability to 25 perform medium work. Although Plaintiff does not drive and 1 typically relies on a bicycle for transport, the record shows 2 that Plaintiff was referred to a cardiologist in February of 3 2019 after experiencing occasional chest pain while cycling. 4 Plaintiff saw Dr. Damian Ray for complaints of chest pain 5 several times between 2017 and 2019. See Transcript pages 6 801 to 821. 7 Dr. Ray referred Plaintiff to a cardiologist more 8 than once, but the record shows that Plaintiff failed to 9 attend at least one cardiology appointment, and it is unclear 10 if he ever actually saw a cardiologist. 11 The ALJ's consistency analysis in this case is also 12 defective. The courts in this circuit have recognized that 13 an ALJ should not consider the persuasiveness of each medical 14 opinion in a vacuum, but must adequately account for the 15 consistency of the various opinions with each other. See 16 case of Mallorie M. versus Commissioner of Social Security, 17 3:21-cv-891. That is a District Court Judge D'Agostino and 18 Magistrate Judge Baxter case found at 2022 Westlaw 19078137, 19 at page 12, Northern District of New York, December 22 of 20 2022. That report and recommendation was adopted and can be 21 found at 2023 Westlaw 2563209, Northern District of New York, 22 March 17 of 2023. See also case of Ingrid T.G. versus 23 Commissioner of Social Security, 1:20-cv-5651. That can be 24 found at 2022 Westlaw 683034, at page 8. That is a Southern 25 District of New York, March 8 of 2022 case. And therein the 1 Court in finding the assessments of disabling pain and 2 phobias unpersuasive, the ALJ was required to address and 3 account for the fact that the treating providers were united 4 in their belief that the Plaintiff's symptom experience was 5 plausible, pervasive, and preclusive of sustained work 6 activity. See also the case of Gary F. versus Commissioner 7 of Social Security, found at 6:20-cv-6735, and it's found at 8 2022 Westlaw 16540354, at page 3. That's a Western District 9 of New York, October 28, 2022 case. And therein finding the 10 ALJ erred when he did not even acknowledge the substantial 11 similarities between two opinions. Here, in this case, the 12 ALJ analyzed each of the two medical opinions addressing 13 Plaintiff's physical limitations in isolation, and never 14 acknowledged that both limit Plaintiff to light work. 15 Similar errors taint the ALJ's analysis of the 16 supportability and consistency of the mental health opinion 17 evidence. For example, the Dowling/Fogelman and 18 Ulberg/Darrow opinions both estimate that Plaintiff's mental 19 health impairments would cause him to have more than four 20 unexcused absences from work and be late for more than four 21 workdays per month, and Dr. Lieber-Diaz opined that Plaintiff 22 had moderate limitations in his ability to be punctual and 23 maintain a schedule and regular attendance at his job. 24 The ALJ rejected each of these opinions, despite 25 record evidence that Plaintiff repeatedly failed to appear 1 for cardiology, mental health, and drug rehabilitation 2 appointments, and arrived intoxicated at other appointments. 3 Crucially, the ALJ again considered each opinion in 4 isolation, and never addressed the apparent consistency 5 across three of the four mental health opinions with regard 6 to attendance and punctuality concerns. 7 Remand is thus required for proper evaluation of 8 the persuasiveness of the mental health opinion evidence. In 9 deciding that remand is required, this Court is not deciding 10 that a proper evaluation of the opinion and other evidence 11 will result in a determination that Plaintiff qualifies for 12 disability benefits. Plaintiff turned 55 years old on March 13 27th, 2020, making him an individual of advanced age. See 20 14 CFR Section 416.963(e). Because he has no transferable 15 skills, a physical RFC of light or sedentary work would 16 ordinarily qualify him as disabled beginning on his 55th 17 birthday. See 20 CFR Section 416.968(d)(4). 18 However, given Plaintiff's history of drug and 19 alcohol addiction, the ALJ would also have to determine 20 whether his addiction was a contributing factor material to 21 the determination of disability, which could make him 22 ineligible for benefits. See 20 CFR Section 416.935. An ALJ 23 must build an accurate and logical bridge from the evidence 24 to his conclusion to enable a meaningful review. See Pamela 25 P. v. Saul, that's found at 3:19-cv-575, a Magistrate Judge 1 Stewart case, found at 2020 Westlaw 2561106, at page 4, 2 Northern District of New York, May 20th of 2020, and therein 3 quoting the case of Steele v. Barnhart, found at 290 F.3d 4 936, at page 941, that's a Seventh Circuit 2002 case. 5 In ordering remand, this Court finds that the ALJ's 6 current evaluation of the record evidence of Plaintiff's 7 physical and mental health impairments, as expressed in his 8 decision, does not permit that meaningful review. 9 Because a proper evaluation of the opinion evidence 10 on remand will necessarily require reconsideration of the 11 impact of Plaintiff's obesity on his RFC and likely require 12 new vocational expert testimony, this Court declines to 13 address Plaintiff's remaining arguments. 14 As a result, and based upon this analysis and 15 reasoning, the Court finds Plaintiff's motion for judgment on 16 the pleadings is granted, and defendant's motion for judgment 17 on the pleadings is denied. This case is remanded to the 18 Social Security Administration for a de novo review. 19 That constitutes and concludes the decision of the 20 Court. As I indicated, I will have the court reporter 21 transcribe the decision that I just rendered. I will then 22 append it to a summary order and file it in the docket in the 23 near future. 24 * * * 25 17

1 2 CERTIFICATION 3 4 I, EILEEN MCDONOUGH, RPR, CRR, Federal Official 5 Realtime Court Reporter, in and for the United States 6 District Court for the Northern District of New York, 7 do hereby certify that pursuant to Section 753, Title 28, 8 United States Code, that the foregoing is a true and correct 9 transcript of the stenographically reported proceedings held 10 in the above-entitled matter and that the transcript page 11 format is in conformance with the regulations of the 12 Judicial Conference of the United States. 13 14 15 16 (Leen MeDeneugh 17 EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter 18 19 20 21 22 23 24 25