Wells v. Commissioner of Social Security

Opinion

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

MICHELLE LYNN W.,

Plaintiff, v. Civil Action No. 5:20-CV-0631 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

STEVEN R. DOLSON LAW OFFICE GREGORY P. FAIR, ESQ. 126 N. Salina Street STEVEN R. DOLSON, ESQ. Suite 3B Syracuse, NY 13202

FOR DEFENDANT

SOCIAL SECURITY ADMIN. NICOLE SONIA, 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 conducted in connection with those motions on August 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 ORDERED, as follows: 1) Plaintiff=s motion for judgment on the pleadings is GRANTED. 2) The Commissioner=s determination that plaintiff was not

disabled at the relevant times, and thus is not entitled to benefits under the

1 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Social Security Act, is VACATED. 3) The matter is hereby REMANDED to the Commissioner, without a directed finding of disability, for further proceedings consistent with this determination. 4) The clerk is respectfully directed to enter judgment, based

upon this determination, remanding the matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case.

U.S. Magistrate Judge Dated: August 5, 2021 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x MICHELLE LYNN W.,

Plaintiff,

vs. 5:20-CV-631

COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on August 3, 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: LAW OFFICES OF STEVEN R. DOLSON Attorneys at Law 126 N. Salina Street, Suite 3B Syracuse, New York 13202 BY: GREGORY P. FAIR, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of the General Counsel JFK Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203 BY: NICOLE SONIA, 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 both of you 4 for excellent oral and written presentations. 5 I have before me a challenge by plaintiff to an 6 adverse determination by the Commissioner of Social Security 7 finding that she was not disabled at the relevant times and 8 therefore ineligible for the benefits sought. The challenge 9 is brought pursuant to 42 United States Code Section 405(g). 10 The background is as follows: Plaintiff was born 11 in September of 1971 and is currently 49 years of age. She 12 stands approximately five foot three-and-a-half inches in 13 height and at various times has weighed between 195 and 14 220 pounds. Plaintiff has a 12th grade education and was in 15 regular classes while in high school. She also has 16 one-and-a-half years of community college education in the 17 field of liberal arts. Plaintiff lives with her husband and 18 one son who in April of 2019 was 23 years old. She has three 19 other grown children. Plaintiff lives in a house in 20 Hannibal, New York. She at one point moved to North Carolina 21 but then returned to New York. She is right-handed and 22 drives. Plaintiff stopped working in April of 2012. She 23 suffered a Workers' Compensation injury when she slipped on 24 water and fell in October of 2011. She worked up until 25 January 7, 2012. She later returned to work on April 9 and 1 left on April 27, 2012. She worked from 1990 until she 2 stopped working as a licensed CNA. 3 Plaintiff suffers physically from asthma, lumbar 4 degenerative disk disease, heart issues, type 2 diabetes, and 5 obesity. She underwent a laminectomy with fusion on 6 December 20, 2013. The surgery was performed by Dr. Colin 7 Harris, who practices with Syracuse Orthopedic Specialists, 8 or SOS. Mentally, plaintiff also suffers from depressive 9 disorder and anxiety disorder. Plaintiff's primary health 10 care provider is through Fulton Health Center which 11 apparently is now known as ConnextCare. She has also treated 12 with SOS, including Dr. Harris and Dr. Richard DiStefano. 13 She has seen Dr. Raymond Alcuri from 2011 until June of 2013 14 for back pain management. She has seen providers at New York 15 Spine & Wellness Center. She has seen Physician's Assistant 16 Craig Hanifin and she has treated at the New York Heart 17 Center. 18 She has been prescribed various medications 19 including hydrocodone, ibuprofen, nitroglycerin, metformin, 20 meloxicam, tizanidine, epidural steroid injections, and a 21 rescue inhaler. She has also undergone massage therapy and 22 chiropractic intervention. 23 In terms of activities of daily living, plaintiff 24 is able to dress, bathe, groom, at least above the waist. 25 She does laundry, she's able to shop, does some cooking, she 1 is able to drive short distances, she watches television, 2 listens to the radio, and socializes. Plaintiff is a smoker, 3 between one half and one pack per day. At one point she quit 4 but then resumed smoking. 5 Procedurally, plaintiff applied for Title II 6 Disability Insurance benefits on August 20, 2013, alleging an 7 onset date of April 27, 2012. It was noted that a prior 8 application from November 12, 2012 was reopened as well. 9 Plaintiff claims disability based on heart condition, 10 depression, diabetes, spinal stenosis, a blood disorder, and 11 high blood pressure. On February 5, 2015, Administrative Law 12 Judge Bruce Fein conducted a hearing to address plaintiff's 13 application for benefits. Judge Fein subsequently issued an 14 adverse determination on July 10, 2015. That became a final 15 determination of the agency on October 17, 2016, when the 16 Social Security Administration Appeals Council denied 17 plaintiff's application for review. 18 Upon court review, the matter was remanded based on 19 a decision from Magistrate Judge Thérèse Wiley Dancks issued 20 on January 24, 2018 for failure of the administrative law 21 judge to address treatment notes, including from Dr. Harris, 22 Physician's Assistant Richman, Dr. Tiso, and Dr. Tallarico, 23 pursuant to the treating source rule, all suggesting that 24 plaintiff was capable of either sedentary or less than 25 sedentary work. The administrative law judge decision was 1 subsequently vacated on May 21, 2018 by the Appeals Council 2 and the matter was remanded. 3 A new hearing was conducted on April 9, 2019 by ALJ 4 Fein, at which a vocational expert also testified. At that 5 hearing, it was determined that plaintiff was seeking 6 disability benefits for a closed period of April 27, 2012 to 7 July 1, 2017, based upon her return to work on that date. 8 ALJ Fein issued an adverse determination again on May 22, 9 2019. That became the final determination when the Appeals 10 Council denied plaintiff's application for review on May 8, 11 2020. This action was commenced on June 8, 2020 and is 12 timely. 13 In his decision, ALJ Fein applied the familiar 14 five-step sequential test for determining disability after 15 first concluding that plaintiff was insured through 16 December 13, 2018. 17 At step one, he concluded plaintiff had not engaged 18 in substantial gainful activity over the closed period for 19 which benefits were sought. He did, however, note that there 20 was some work activity in 2016, but it did not rise to a 21 level sufficient to be found to be substantial gainful 22 activity. 23 At step two, ALJ Fein concluded that plaintiff does 24 suffer from severe impairments that impose more than minimal 25 limitations on her ability to perform basic work functions, 1 including lumbar degenerative disk disease status post 2 laminectomy and fusion, coronary artery disease status post 3 myocardial infarction, depressive disorder, and anxiety 4 disorder. 5 At step three, he concluded that plaintiff's 6 conditions do not meet or medically equal any of the listed 7 presumptively disabling conditions set forth in the 8 regulations, including Listings 1.04, 4.04, 12.04, and 12.06. 9 After reviewing the medical evidence and other 10 evidence, plaintiff's residual functional capacity was 11 determined by ALJ Fein to include the ability to perform 12 sedentary work with exceptions including: She could not 13 climb ropes, ladders, or scaffolds, kneel, crouch, or crawl. 14 The claimant could occasionally balance, stoop, and climb 15 ramps or stairs, she had to avoid concentrated exposure to 16 unprotected heights, she also needed a low stress job which 17 is defined as one involving only occasional decision making, 18 changes in the work setting, and use of judgment. 19 At step four, ALJ Fein concluded that plaintiff is 20 not capable of performing her past relevant work as a home 21 health aide or CNA, either as actually performed or 22 generally performed in the national economy. 23 At step five, ALJ Fein first noted that if 24 plaintiff were capable of performing a full range of 25 sedentary work, a finding of no disability would be required 1 under the Medical-Vocational Guidelines, or the Grid Rules, 2 and specifically Grid Rules 201.28 and 201.21. Noting that 3 there were additional limitations that would erode the job 4 base on which the Grids were predicated, ALJ Fein concluded, 5 based on the testimony of a vocational expert who applied a 6 hypothetical that aligned with the RFC finding, plaintiff is 7 capable of performing available work in the national economy, 8 citing representative positions of table worker, stuffer-toy 9 and addresser, and therefore concluded that plaintiff was not 10 disabled at the relevant times. 11 The court's function in this matter is to determine 12 whether correct legal principles were applied and whether the 13 result is supported by substantial evidence. The Second 14 Circuit noted in Brault v. Social Security Administration 15 Commissioner, 683 F.3d 443, Second Circuit, 2012, that 16 substantial evidence means such relevant evidence as a 17 reasonable mind would accept as adequate to support a 18 conclusion. The court further noted in Brault that this is 19 an extremely deferential standard and stringent, more so even 20 than the clearly erroneous standard. The court further noted 21 that, under the substantial evidence standard, once an ALJ 22 finds a fact, that fact can be rejected only if a reasonable 23 fact finder would have to conclude otherwise. 24 In this case, plaintiff raises a single contention 25 and that revolves around the determination, how much weight 1 to be given to medical opinions in the record and it centers 2 not exclusively but primarily on the treating source rule as 3 it applies to opinions given by Dr. Harris, the treating 4 orthopedic surgeon. And it is based on treatment notes from 5 October 2015 and February 2016 as well as the July 2015 6 medical source statement and limitations cited in lifting and 7 carrying as well as twisting and being off-task and absent. 8 As the plaintiff points out, under the regulations 9 that were in effect at the time this application was made, 10 the opinion of a treating physician regarding the nature and 11 severity of an impairment is ordinarily entitled to 12 considerable deference provided that it is supported by 13 medically acceptable clinical and laboratory diagnostic 14 techniques and is not inconsistent with other substantial 15 evidence. Veino v. Barnhart, 312 F.3d 578 at 588. Treating 16 source opinions are not controlling, however, if they are 17 contrary to other substantial evidence in the record, 18 including the opinions of other medical experts. And of 19 course where conflicts arise in the form of contradictory 20 medical evidence, the resolution is properly entrusted to the 21 Commissioner under Veino, 312 F.3d at 588. 22 Significantly, when an ALJ does not give 23 controlling weight to a treating source's opinion, he or she 24 must apply several factors to determine what degree of weight 25 should be assigned to the opinion. Those factors are set out 1 in 20 C.F.R. Section 404.1527, and in this circuit are 2 generally referred to as the Burgess factors. When a 3 treating source's opinion is repudiated, an ALJ must provide 4 specific reasons for the rejection. The Circuit has noted 5 that in many instances because of the sheer volume I'm sure, 6 among other things, of cases that ALJs experience, they don't 7 often recite verbatim or rotely the Burgess factors that are 8 considered when analyzing a treating source's opinion. And 9 so in Estrella v. Berryhill, for example, 925 F.3d 90, Second 10 Circuit 2019, the Second Circuit noted that rote recitation 11 of the Burgess factors is not necessarily required so long as 12 a searching review of the record reflects that the treating 13 source rule was not violated. 14 I have to say that in this case, it is somewhat 15 disappointing that ALJ Fein did not more clearly articulate 16 why Dr. Harris' opinions, which were contrary to the residual 17 functional capacity finding, were not given controlling 18 weight, particularly since this case was once remanded for 19 that very reason by the court. 20 Focusing on the July 2015 medical source statement 21 at page 822, it is rejected based on a very short paragraph 22 and really a single statement that many of plaintiff's 23 physical exams have noted relatively normal findings and 24 there are citations to treatment records. On the issue of 25 lifting there are clearly competing medical opinions and 1 under Veino, of course, it is for the ALJ to resolve those 2 inconsistencies. 3 My focus really is on the issue of twisting. 4 Chiropractor Sean Higgins on July 24, 2012 at pages 402 to 5 405 issued an opinion finding that plaintiff should not 6 engage in repetitive twisting from the waist. Of course that 7 opinion was given prior to the date of plaintiff's surgery. 8 Dr. Colin Harris, a treating source, has issued two 9 separate opinions addressing twisting. In the July 28, 2015 10 medical source statement at 733 to 735, it was indicated that 11 plaintiff should rarely twist. On October 20, 2015 at page 12 1076, Dr. Harris prescribed limited twisting activity. 13 Physician's Assistant Craig Hanifin and Dr. Warren 14 Wulff on February 23, 2016 at page 1066 indicated that 15 plaintiff should engage in limited twisting activity. 16 Dr. Elke Lorensen, whose opinion was given some 17 weight, issued a consultative opinion on 425 to 430 based on 18 her examination of the plaintiff. It does not contain any 19 mention one way or the other of twisting limitation. 20 Dr. Steven Shilling was issued interrogatories, 21 he's a cardiology specialist, at 1027 to 1043. His responses 22 dodge any questions related to plaintiff's back condition. 23 Dr. Sonya Clark, an orthopedic surgeon who was also 24 posed interrogatories, issued responses on August 31, 19 -- 25 2018, I'm sorry, at pages 1016 to 1021. The administrative 1 law judge and defendant rely heavily on that statement. 2 However, Dr. Clark in the form is not asked any questions 3 concerning twisting. The postural limitations that were 4 asked about include climb stairs and ramps, climb ladders or 5 scaffolds, balance, stoop, kneel, crouch, or crawl. No 6 request about the ability to twist. 7 In his decision, ALJ Fein does not specifically 8 discuss twisting. He does discount Dr. Harris and PA 9 Hanifin's statements generally as not supported at 822. 10 When you look at the Burgess factors, Dr. Harris is 11 an orthopedic surgeon, longstanding treatment relationship. 12 The administrative law judge really did a very limited review 13 of the records and gave no explanation as to why the multiple 14 opinions limiting twisting were discounted. 15 This is a close case because I understand the 16 deferential nature of the court's review in this case, but I 17 believe that in this instance the treating source rule was 18 violated, particularly when it comes to the opinions 19 regarding twisting. The question really then becomes, was it 20 harmless error. This is a case that was resolved at step 21 five where the Commissioner bears the burden of proof. 22 Clearly the Commissioner can carry the burden by posing a 23 hypothetical to the vocational expert that includes all of 24 the limitations that the plaintiff experiences. Calabrese v. 25 Astrue, 358 F.App'x 274 from Second Circuit 2009. In this 1 case when it comes to twisting, there is no guidance in 2 Social Security Rulings or Regulations, including SSR 85-15, 3 concerning twisting. The Dictionary of Occupational Titles 4 also contains no guidance on the issue, as well as the 5 Selected Characteristics of Occupations. Ricketts v. 6 Berryhill, 2017 WL 6624025, from the Western District of 7 Oklahoma, December 28, 2017. 8 The crux then is that the vocational expert really 9 needs to weigh in on the effect, if any, on a twisting 10 limitation and in this case, I could perhaps imagine that the 11 three jobs cited would not necessarily involve more than 12 occasional twisting, but I'm not a vocational expert. It's 13 not my place to make that judgment, it's for the vocational 14 expert; and the Commissioner, again, bears the burden of 15 proof at step five. So I believe that a remand is required 16 in order to probe this issue. Hopkins v. Commissioner of 17 Social Security, 2015 WL 4508630 from the Northern District 18 of New York 2015. I find error and therefore no need to 19 address the secondary issues of off-task and absence. I 20 don't find persuasive evidence of disability, and so I will 21 grant judgment on the pleadings to the plaintiff, vacate the 22 Commissioner's determination, and order that the matter be 23 remanded for further consideration consistent with this 24 opinion. 25 Thank you both for excellent presentations, I hope 1 you stay safe in these interesting times. 2 MR. FAIR: Thank you, your Honor. 3 MS. SONIA: Thank you. 4 (Proceedings Adjourned, 11:45 a.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 3rd day of August, 2021. 17 18 19 /S/ JODI L. HIBBARD

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