Udelhofen v. Saul

Opinion

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

HEATHER U.,

Plaintiff, v. Civil Action No. 3:19-CV-1320 (DEP)

ANDREW SAUL, Commissioner of Social Security,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF:

LACHMAN, GORTON LAW FIRM PETER A. GORTON, ESQ. P.O. Box 89 1500 East Main Street Endicott, NY 13761-0089

FOR DEFENDANT:

SOCIAL SECURITY ADMINISTRATION MICHAEL L. HENRY, ESQ. Office of General Counsel J.F.K. Federal Building Room 625 Boston, Massachusetts 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), 1383(c)(3), are cross-motions for judgment on the pleadings.1

Oral argument was conducted in connection with those motions on March 3, 2021, 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

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. 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 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 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: March 10, 2021 Syracuse, New York

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x HEATHER U., Plaintiff, -v- 3:19-CV-1320 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES March 3, 2021 100 South Clinton Street, Syracuse, New York For the Plaintiff: (Appearance by telephone) LACHMAN & GORTON LAW OFFICE P.O. Box 89 1500 East Main Street Endicott, New York 13761 BY: PETER A. GORTON, ESQ. For the Defendant: (Appearance by telephone) SOCIAL SECURITY ADMINISTRATION 625 JFK Building 15 New Sudbury Street Boston, Massachusetts 02203 BY: MICHAEL L. HENRY, ESQ. Hannah F. Cavanaugh, RPR, CRR, CSR, ACR, RCR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8545 1 (The Court and all parties present by telephone. Time noted: 11:21 a.m.) THE COURT: Let me begin by thanking both counsel for excellent and spirited presentations. This is an interesting case both factually and because of the legal issue presented concerning the standard that the Court must apply in this

circumstance. Plaintiff has commenced this proceeding pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3) to challenge an adverse determination by the Commissioner of Social Security finding that she was not disabled at the relevant times and therefore ineligible for the benefits for which she applied. The background is as follows: Plaintiff was born in January of 1982. She is currently 39 years old. Plaintiff stands between 5'1" and 5'2" in height and has weighed at various times as little as 270 pounds and as much as 346 pounds, the latter recorded on November 21, 2018. The plaintiff has three children. Two children -- two of her children reside with their father. Plaintiff lives in a two-story house in the Binghamton, New York area with her mother and her son who in March, by my calculation, will turn 20 years old.

Plaintiff has a GED and, while in high school, attended regular classes. She attended school through the 10th grade. Plaintiff has a driver's license and drives, but has no vehicle. Plaintiff's stopped working in March of 2007 according to the Administrative Transcript -- including at 206, 257, and 828 of the Administrative Transcript. She was fired from her certified nursing assistant or aide job, CNA, due to absences. She has also worked in the past as a temporary employee, a daycare teaching assistant, a bus monitor, a factory assembler, a retail cashier, and a fast food cashier.

In March of 2007 after she lost her job, she was involved in a motor vehicle accident causing injury to her head, ribs, and knees. Plaintiff was transported to an emergency room for treatment and, according to the records, lost consciousness at some point following the accident. That appears at page 289 of the Administrative Transcript. There are also indications in the Administrative Transcript that plaintiff has had several falls over time, including in May of 2013, that's at 373; February of 2015, that's at 1931; December of 2015, that's at 639; and February of 2016, 779 and 932. Physically, plaintiff suffers from lower back pain, which has been characterized as degenerative disc disease or DDD; cervical pain, which has also been described as DDD; left knee pain, which has been described as degenerative joint

disease; morbid obesity; obstructive sleep apnea; diabetes; a thyroid condition; asthma; headaches; and vertigo. There have been several MRIs, or magnetic resonance imaging testing, over time. On June 16, 2009, at page 461, there was a lumbar MRI which showed lower lumbar facet arthropathy, no significant disc bulge or compromise of the neuro foramina at any level. There was a lumbar X-ray on February 27, 2012, that's at page 371, that showed mild L5-S1 neural foraminal narrowing probably due to facet joint hypertrophy. If concern for disc herniation or nerve root

impingement, MRI may be helpful for further evaluation. There was a lumbar MRI performed on July 27, 2012. That's at 442. That was listed as unremarkable with no interval change. MRI testing on June 18, 2013, the result appears at 439 and 440, the impression is listed as mild diffuse congenital lumbar spinal canal stenosis with very limited lower lumbar discogenic and facet degenerative changes and with mild right L5-S1 foraminal narrowing and mild asymmetric to the right diffuse disc bulge with no lumbar nerve root impingement identified. The lumbar MRI testing on August 16th -- August 31, 2016, the result appears at 1017 to 1018 of the Administrative Transcript, and the result is listed as unremarkable lumbar spine MRI exam, no interval changes. There was lumbar MRI testing performed on June 20, 2017, that's at 1667 and 1668, the result being mild congential

central canal stenosis, no evidence of acute abnormality. Lumbar MRI testing on June 5, 2018, was performed, the result appears at 1727, and indicates no significant degenerative disc disease, epidural lipomatosis extending from approximately mid-L5 level inferiorly resulting in compression of the thecal sac and cauda equina at the L5-S1 level, and partial straightening of the usual lumbar lordosis can be positional or secondary to pain/muscle spasm. Cervical MRI testing was also performed in November of 2016, the result appears at 1011 and 1012, and the indication there is a slight increase in mild

osteoarthritis with a small left lateral spondylotic ridge at C5-C6, adenoidal hypertrophy, and post-surgical changes in the posterior neck soft tissues. The plaintiff has undergone several injections, including October 21, 2013, that's at 523; November 18, 2013, that's 528; January 28, 2014, at 534; September 19, 2014, that's at 709 to 710; December 22, 2016, that's 705; and March 31, 2014, that's at 543. She also underwent a procedure for which I will mostly spell, a right L5-S1 lateral recess decompression, foraminotomy using the METRx tubular technique. That procedure is described at 1950 and 1951 of the Administrative Transcript. She also had removal of fatty tumors, also described as lipomas, including in 2014. That appears at 548. She had bilateral ankle surgery on May 13, 2018, that's at 1889 to 1890, performed

by Dr. Parker Gennett. Mentally, plaintiff suffers from depression and bipolar disorder. She has been referred to CPEP with anxiety and was referred to the Broome County Mental Health Clinic. She has several emergency room visits for back and neck issues, including on December 6, 2015, January 26, 2016, February 21, 2016, July 14, 2016, July 15, 2016, and June 20, 2018. Plaintiff's primary care provider is Dr. Darlene Denzien, who practices with Lourdes Center for Family Health. Plaintiff has seen Dr. Denzien since she was 18 years old. She

has also seen Dr. Varsha Kishore, also with Lourdes Center for Family Health on at least one occasion. She has seen ANP Susan Wenzinger, a pain specialist, and Dr. Khalid Sethi, a neurosurgeon, who performed the procedure that I described earlier. Medications have been prescribed over time including, but not limited to, Oxycodone, Hydrocodone, Seroquel, Lexapro, Ventolin, Cymbalta, Flexeril, Toradol, Abilify, Lamictal, Wellbutrin, Zoloft, Effexor, Prozac, Topamax, Depakote, Fluoxetine, and an inhaler which she uses as needed for her asthma. Plaintiff's activities of daily living and interests include the ability to shower, groom, dress, prepare meals, shop, care for her pets with the help of her mother, going outside daily, doing laundry, doing light housework, watching

television, talking on the telephone, and visiting or hanging out with friends. Plaintiff has never smoked. This case has had a fairly significant procedural history. Apparently, there were prior applications by the plaintiff for benefits under the Social Security Act in 2008, 2012, and 2014. On July 23, 2014, she applied for Title II and Title XVI benefits alleging a disability onset date of March 19, 2007, and claiming disability, at page 206, based on DDD, depression, and macular degeneration. A hearing was conducted on March 9, 2017, by Administrative Law Judge John P. Ramos.

Judge Ramos issued an unfavorable decision on April 7, 2017. The Social Security Administration Appeals Council subsequently denied plaintiff's application for a review of that decision on May 25, 2018. An action was commenced in this court on June 28, 2018, it is civil action 18-CV-759, to challenge the adverse determination. That resulted in a remand on consent on January 2, 2019. On February 5, 2019, the Social Security Administration Appeals Council vacated the earlier determination and remanded the matter for further consideration. There were two basic points raised by the Appeals Council, the first related to the physical components of the RFC and centered upon the analysis of opinions of Dr. Denzien and a consultative examiner, Dr. Figueroa. The second related to analysis of the mental condition and plaintiff's mental condition. The focus was upon the need to assess both the

nature and severity of any mental impairment. A subsequent hearing was conducted on July 25, 2019, by ALJ Ramos. The Administrative Law Judge issued a second unfavorable opinion on August 19, 2019. That is a final determination of the agency, and there would not appear to be any request for a review by the Appeals Council. On October 28, 2019, this action was commenced. In his second decision, ALJ Ramos applied the familiar five-step sequential test for determining disability. At step one, he concluded that plaintiff had not engaged in

substantial gainful activity since March 19, 2007. He noted at the outset, I should say, that plaintiff's insured status appears to have expired on June 30, 2010. At step two, ALJ Ramos concluded that plaintiff suffers from severe impairments that impose more than minimal limitations on her ability to perform basic work functions, including morbid obesity, degenerative joint disease of the left knee, degenerative disc disease of the cervical spine, and degenerative disc disease of the lumbosacral spine. He went through an analysis and concluded that there were no severe mental impairments suffered by the plaintiff. The ALJ next concluded that plaintiff retains the residual functional capacity to perform sedentary work, except that she is limited to only occasional lifting or carrying up to ten pounds. In other words, she is not capable of frequently

lifting or carrying up to ten pounds and only occasionally lifting or carrying of that weight. The Administrative Law Judge explained that limitation as being based upon an inconsistency in the opinions of Dr. Figueroa. The Administrative Law Judge, at step four, concluded that plaintiff had no past relevant work and proceeded to step five. At step five, he first noted that if plaintiff were capable of performing a full range of sedentary work, a finding of no disability would be compelled by the Medical-Vocational

Guidelines set forth in the regulations and specifically Rule 201.27. With the aid of a vocational expert, the Administrative Law Judge concluded that plaintiff is capable of performing available work in the national economy and identified three representative positions, including as a button -- I can't read my notes -- a button reclaimer, an election clerk, and a surveillance system monitor. Oh, I did skip step three. At step three, the Administrative Law Judge concluded that plaintiff's conditions do not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations. He specifically considered listings 1.02 and 1.04. The Court's task in this case is to determine whether the resulting determination was the product of correct legal principles and is supported by substantial evidence.

Substantial evidence is defined as such relevant evidence as a reasonable mind would accept as sufficient to support a conclusion. In this case, plaintiff raises five basic contentions. First, he -- she contends that the Administrative Law Judge improperly rejected the opinions of Dr. Denzien and Dr. Kishore and Nurse Practitioner Wenzinger, all of which opined that plaintiff would need to change positions and claims that the explanation given was not -- did not meet the overwhelmingly compelling reasons standard. Secondly, she

challenges the failure to give controlling weight to the opinions of Dr. Denzien who is, by all accounts, a treating source. Thirdly, plaintiff contends that the ALJ failed to properly assess opinions in the record concerning how often plaintiff would be off task and absent from work without excuse. And fourth, the plaintiff challenges any failure to include any limitations in the RFC related to her mental condition. And fifth, as kind of a derivative argument, she challenges the step five determination as being based on a flawed hypothetical based on an erroneous residual functional capacity finding. Addressing first the sit/stand option argument, there are several medical opinions in the record that speak to that. There is one from MSN Susan Wenzinger dated June 19, 2019. It appears at 1983 to 1984. It indicates that in her best estimate, plaintiff would need to change positions approximately

every 15 to 30 minutes. That doctor -- MSN Wenzinger, of course, is not an acceptable medical source under the regulations, but nonetheless, her opinion is entitled to consideration. Dr. Darlene Denzien has issued several opinions, all of which appear to bear the date February 3, 2017, and indicate that plaintiff would need to change positions every 15 minutes. Those appear at 1898, 567, and 818 of the Administrative Transcript. The last opinion that speaks to that is from

Dr. Varsha Kishore. It appears at 895 -- 894 through 896, and it appears to endorse the opinion of Dr. Denzien. Dr. Kishore's opinion was rejected by the Administrative Law Judge because it appeared that he or she saw the plaintiff only on one occasion. That's at 1128. More concerning is the fact that Dr. Denzien's opinion is rejected at page 1128 and 1129. There's explanation as to why other parts of the opinion of Dr. Denzien are rejected, but no explanation as to why the sit/stand option portion is rejected. The -- MSN Wenzinger's opinion is rejected at 1127 and 1128. Again, no explanation as to why. The -- precisely why those were rejected, I suppose it could be argued that the rejection comes in the catch-all portion of the opinions that appear at page 1159. Furthermore,

the disabling portion of the opinion by Dr. Denzien and Dr. Kishore is inconsistent with the claimant's reported activities, which include being able to perform many of her activities of daily living and care for a mentally disabled child. It's difficult for -- to imagine why the ability to -- the need to change positions every 15 or 30 minutes would be -- would be undermined by activities of daily living that were described earlier. In any event, this -- this case, of course, falls under the former regulations that were amended in March of 2017

under 20 C.F.R. Section 404.1527 and Section 416.927. Dr. Denzien's opinions were entitled to controlling weight if supported by substantial evidence and the Administrative Law Judge, in rejecting those opinions, was duty bound to explain the rejection, explain the weight given, and address the so-called Burgess factors. In any event, I agree with plaintiff's counsel that what -- what really is at issue here is the rejection of uncontroverted medical opinions. The only other medical opinion, of course, that speaks to the plaintiff's physical abilities is that of Dr. Rita Figueroa, that appears at 548 to 552 of the Administrative Transcript, and doesn't speak to the need to sit or stand in either -- either way. But significantly, it does indicate significant limitations related to plaintiff's back, including marked limitations for activities

requiring bending, lifting, carrying, and standing due to the bulging in her back, so the -- and moderate limitations for sitting, so it's hard for me to conclude that that is a contrary medical opinion since it was silent on the issue. So the issue really is, again, what is required in order to overcome, in a lay opinion, uncontroverted medical opinions. I appreciate that the Commissioner has asked that the Court determine that the overwhelmingly compelling standard has been abrogated and, if not, it should be. That's a matter for the Second Circuit Court of Appeals and if were I sitting on

that court, I would have a great deal of fun winding my way through how that standard evolved. The fact remains, however, that as recently as a year ago tomorrow, in Riccobono v. Saul, 796 F. App’x 49, on March 4, 2020, the Second Circuit reiterated the standard. In that case, the ALJ had discounted medical opinions and substituted her own judgment to interpret the raw medical data and the Court noted, quote, as we previously have held, a circumstantial critique by non-physicians, however thorough or responsible, must be overwhelmingly compelling in order to overcome a medical opinion, citing Wagner v. Secretary of Health and Human Services, 906 F.2d 856862, Second Circuit, 1990. In this case, there were literally no reasons cited. I have, in many cases, as I think both counsel in this case know, found that the overwhelmingly compelling standard has been

met. I can't in this case because there is literally no explanation given as to why the sit/stand opinions of Wenzinger, Denzien, and Kishore have been rejected. Without that, I cannot conclude that the -- nor can the ALJ conclude that treatment notes justify the decision to discount uncontradicted opinions, Gavazzi v. Berryhill, 687 F. App’x 98 from April 19, 2017. So the Administrative Law Judge, in rejecting Dr. Denzien's opinion and Nurse Practitioner Wenzinger's opinion, focused on certain things in general, mostly -- many of which related to the mental aspect of the opinion and focused on

medication, side effects, no testing regarding concentration and attention, the speculative nature of the off task and absence portion of the opinions, the need to rest can be accommodated by normal breaks, and activities of daily living. I don't find that any of those explanations comes close to meeting the overwhelmingly compelling standard in this case, so I find error. The question is: Is the error harmless. And the answer is, it depends on the extent of the erosion of the job base. Based on the need to alternate sitting and standing, it depends. Social Security Ruling 96-9p addresses this issue and states, the extent of the erosion will depend on the facts in the case record, such as the frequency of the need to alternate sitting and standing and the length of time needed to stand. The RFC assessment must be specific as to the frequency of the individual's need to alternate sitting and standing. It may be

especially useful in these situations to consult a vocational resource in order to determine whether the individual is able to make an adjustment to other work. And that thought is echoed in Social Security Ruling 83-12, which states -- addressing, again, the need to alternate sitting and standing, in cases of unusual limitation of ability to sit or stand, a VS should be consulted to clarify the implications for the occupational base. So in conclusion, I don't find that correct legal principles were applied and that the -- that the determination

of the Commissioner in this case is supported by substantial evidence. I'm not going to address the remaining issues in the case, and specifically whether the requirements of the treating source rule and Estrella have been met with the rejection of Dr. Denzien's opinions because I find error in rejecting the unanimous opinions of medical sources without overwhelmingly compelling rationale stated by the Administrative Law Judge, so I will grant judgment on the pleadings to the plaintiff. Despite the lengthy history of this case, I don't find a basis to direct a finding of disability and remand for calculation of benefits. I think the case should be remanded for further consideration consistent with this opinion. Thank you both for excellent presentations. Please stay safe. MR. GORTON: Thank you, your Honor.

MR. HENRY: Thank you, your Honor. (Time noted: 11:51 a.m.)

I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, ACR, RCR, Official U.S. 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. Dated this 8th day of March, 2021. s/ Hannah F. Cavanaugh______________________ HANNAH F. CAVANAUGH, RPR, CRR, CSR, ACR, RCR Official U.S. Court Reporter