Smith v. O'Malley

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

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.,

Plaintiff,

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

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 MeDeneugh EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter