Opinion
Civil Action 8:20-CV-0434 (DEP)
07-12-2021
PATRICIA A. S., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
FOR PLAINTIFF CONBOY McKAY LAW FIRM FOR DEFENDANT SOCIAL SECURITY ADMIN. LAWRENCE D. HASSELER, ESQ., MICHAEL L. HENRY, ESQ.
APPEARANCES:
FOR PLAINTIFF CONBOY McKAY LAW FIRM
FOR DEFENDANT SOCIAL SECURITY ADMIN.
OF COUNSEL:
LAWRENCE D. HASSELER, ESQ., MICHAEL L. HENRY, ESQ.
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) and 1383(3)(c), are cross-motions for judgment on the pleadings. Oral argument was heard in connection with those motions on July 7, 2021, during a telephone conference conducted on the record. At the close of argument, I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner's determination resulted from the application of proper legal principles and is supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by the plaintiff in this appeal.
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.
After due deliberation, and based upon the court's oral bench decision, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is hereby
ORDERED, as follows:
1) Defendant's motion for judgment on the pleadings is GRANTED.
2) The Commissioner's determination that the plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED.
3) The clerk is respectfully directed to enter judgment, based upon this determination, DISMISSING plaintiff's complaint in its entirety.
Transcript of a Decision held during a Digitally-Recorded Telephone Conference on July 7, 2021, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.
APPEARANCES
(By Telephone)
For Plaintiff: CONBOY, McKAY LAW FIRM Attorneys at Law 307 State Street Carthage, New York 13619 BY: LAWRENCE D. HASSELER, ESQ.
For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel J.F.K. Federal Building Room 625 Boston, Massachusetts 02203 BY: MICHAEL L. HENRY, ESQ.
Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547
(The Court and all counsel present by telephone, 11:11 a.m.)
THE COURT: I appreciate the excellent presentations of both counsel, both through their written briefs and orally.
I have before me a challenge to an adverse determination by the Commissioner of Social Security finding that plaintiff was not disabled at the relevant times and therefore ineligible for the benefits which she sought. The challenge is raised pursuant to 42 United States Code Sections 405(g) and 1383(c)(3).
The background is as follows: Plaintiff was born in March of 1975 and is currently 4 6 years of age. She was 41 years old at the time of the alleged amended onset date of September 14, 2016, and 43 at the time of the administrative hearing in this matter. She stands approximately 5 foot 5 inches in height. Her weight has fluctuated as much as 30 to 50 pounds. At the time she prepared her functional report, she weighed 124 pounds. At the time of the hearing she weighed 158 pounds. Plaintiff underwent bariatric bypass surgery in 2016 and has had medically induced anorexia. Plaintiff is married and lives with her husband in a mobile home in Waddington, New York. She has two children who at the time of the hearing in August 2018 were 17 and 23 years of age. Neither of those children resides with the plaintiff. Plaintiff has a high school degree and two years of college education. While in school she attended regular classes. Plaintiff is right-handed. She has a driver's license but no car, her vehicle apparently was repossessed.
Plaintiff worked until September 2016 in various positions, most of short duration, including as a cashier, a merchandiser, a stocker, a team leader, a dairy representative and dairy inspector, and a sales associate in an appliance store.
Plaintiff suffers from physical and mental diagnosed conditions. Mentally her conditions have been variously diagnosed as bipolar II disorder, depressive disorder with atypical features, post-traumatic stress disorder, anxiety, and an adjustment disorder with depression. She is not currently undergoing any specialized treatment for her psychiatric condition except through her general practitioner who prescribes medication. She did in the past see the Canton-Potsdam Behavioral Health Services facility as well as to obtain services from the Mosaic Behavior Health Services.
Physically, plaintiff has been diagnosed as suffering from fibromyalgia, psoriatic arthritis of long standing, GERD, and a left shoulder issue. Plaintiff's primary provider is Dr. Emily Wood who she has seen since September of 2000 -- I'm sorry, November of 2016. She sees
Dr. Wood approximately every six to eight weeks. She has also consulted with Dr. Juan-Diego Harris, a pain specialist, Dr. Lai Kuang, another pain provider, and Dr. Eyal Kedar, a rheumatologist. She has also seen various other physician's assistants and nurse practitioners.
Plaintiff has been prescribed various medications over time including Humira, Prozac, Savella, a Butrans patch, oxycodone, Soma, Stelara, Percocet, Prilosec, and omeprazole. She uses a cane, although Dr. Wood, her primary provider, indicated at page 730 of the administrative transcript that it is not required. She has also undergone radiofrequency ablation, injections, she uses a TENS unit, she has tried acupuncture and physical therapy. Plaintiff does not smoke. She does occasionally use marijuana for her pain, she has not been prescribed medical marijuana. Plaintiff does and has consumed in the past alcohol and has had some issues with regard to alcohol and has undergone some AA treatment.
In terms of activities of daily living over time, she is able to shower and bathe, she can groom, she does some driving, some laundry, cleans, she does some cooking, she does dishes, she does not shop, she watches television, reads, she plays with her two small dogs, she did at one point attend her daughter's volleyball games, she has been to one or more casinos in the past, and she walks.
Procedurally, plaintiff applied for Title II and Title XVI benefits on September 15, 2016, alleging an onset date of May 24, 2016. That was later amended to September 14, 2016, the date on which plaintiff left her last work. In support of her application, she claims disability based on stomach pain and scar tissue from multiple surgeries, gastric bypass side effects, depression, arthritis, and fibromyalgia. A hearing was conducted on August 28, 2018 by Administrative Law Judge Robyn L. Hoffman to address plaintiff's application. Administrative Law Judge Hoffman issued an adverse decision on February 21, 2019. That became a final determination of the agency on March 4, 2020 when the Social Security Administration Appeals Council denied plaintiff's application for review. This action was commenced on April 15, 2020 and is timely.
In her decision, ALJ Hoffman applied the familiar five-step sequential test for determining disability. She noted initially that plaintiff was last insured on June 30, 2 -- or will be, 2022.
At step one, ALJ Hoffman concluded plaintiff had not engaged in substantial gainful activity since September 14, 2016. She did do some work subsequent to that date but did not rise to a level of substantial gainful activity. The administrative law judge noted, however, that she did consider plaintiff's ability to work in an appliance store when formulating the residual functional capacity. She testified that there was some lifting involved as I recall.
At step two, ALJ Hoffman found that plaintiff does suffer from severe impairments that impose more than minimal limitations on her ability to perform work functions, including fibromyalgia, lumbar facet arthropathy, psoriatic arthritis, status post gastric bypass, and degenerative tear of the acetabular labrum of the right hip.
At step three, ALJ Hoffman 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, specifically considering Listings 1.02 and 1.04.
ALJ Hoffman next concluded that despite her conditions, plaintiff retains the residual functional capacity, or RFC, to perform less than a full range of light work, imposing some limitations that are inconsistent with a full range of light work, finding that she can occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, sit for up to six hours and stand or walk for approximately six hours in an eight-hour day with normal breaks. She is limited to frequent reaching in all directions, and the claimant should avoid concentrated exposure to excessive amounts of respiratory irritants such as dust, odors, fumes, gases, and hot and cold temperature extremes.
Applying that residual functional capacity at step four, the administrative law judge essentially bypassed the step in light of the paucity of information concerning plaintiff's past relevant work.
At step five, ALJ Hoffman concluded that if she were able to perform a full range of light work, plaintiff would be not disabled pursuant to Rule 202.21 of the Medical-Vocational Guidelines set forth in the Commissioner's regulations, the so-called Grids. She concluded that the limitation to frequent reaching was not significant and that plaintiff is able to use both hands to handle, finger, feel and therefore can grasp, hold, and turn objects. She also concluded that the limitation associated with the environmental conditions does not significantly impact her ability to work, citing Social Security Rulings 83-14 and 85-15. She therefore concluded that those additional limitations did not sufficiently erode the job base on which the Grids are predicated to make it necessary to secure the testimony of a vocational expert and found that plaintiff was not disabled at the relevant times.
As you know, the court's function is to determine whether correct legal principles were applied and the result 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 Court of
Appeals noted in Brault v. Social Security Administration Commissioner, 683 F.3d 443 from 2012, this is an extremely deferential standard. The standard is more stringent than the clearly erroneous standard that we, as lawyers, are familiar with. The Second Circuit noted that under the substantial evidence standard, once an ALJ finds a fact, the fact can be rejected only if a reasonable fact finder would have to conclude otherwise.
The plaintiff, in support of her challenge, raises four interrelated contentions.
The first is that, and the key focus, quite honestly, is, surrounds the administrative law judge's handling and treatment of the three forms completed by plaintiff's treating physician Dr. Emily Wood. The argument is that as a treating source, those opinions were entitled to controlling weight, and that it was improper to elevate the opinions of nontreating sources such as Dr. Hennessey and Dr. Long and Occupational Therapist Graveline and Dr. Lorensen over the opinions of Dr. Wood.
The second hinges on the first. It alleges that the residual functional capacity is not supported by substantial evidence because the opinions of Dr. Wood and also Nurse Practitioner Couperus-Mashewske were improperly rejected or discounted.
The third is, the third contention is that the ALJ should have obtained the testimony of a vocational expert. Again, it's dependent on the additional limitations set forth in Dr. Wood's medical source opinions.
And the fourth is that substantial evidence does not support the administrative law judge's rejection of Dr. Lorensen's additional limitations of moderate to marked limitation in bending, lifting, and reaching.
In terms of the treating source, Dr. Emily Wood in August of 2018 completed three forms, primarily check-box forms. Those appear at pages 720 of the record through 733 -- I'm sorry, 734, and they're extremely limiting. In the first of those, the administrative law judge concluded that plaintiff can walk for 10 minutes before needing a break. The opinion also finds that plaintiff would be off task 25 percent or more of the time and absent more than four times per month and that plaintiff is incapable of even low stress work, that's at page 724.
The second form, which focuses on plaintiff's mental condition, is extremely limiting, finding marked limitations in many areas and an extreme limitation in plaintiff's ability to respond appropriately to usual work situations and to changes in a routine work setting.
The third form focuses on plaintiff's physical capabilities, finding that she can only occasionally lift up to, and carry up to 10 pounds and can never lift or carry more than 10 pounds. It finds that she can sit for only two hours and stand for one hour and walk for one hour in an eight-hour day. It concludes that she can never reach overhead with left or right hand, can never push or pull with the left or right hand. It finds also that she can never climb ladders, scaffolds, balance, stoop, kneel, crouch, or crawl. Environmentally it also concludes that she can never be subject to unprotected heights, moving mechanical parts, dust, odors, fumes, pulmonary irritants, extreme cold, extreme heat, and vibrations.
The forms, as I indicated, were check-box forms with little or no explanation.
The administrative law judge discussed and summarized those reports at page 41, also discussed them at page 36, and 41 and 42. It is true, as plaintiff argues, that ordinarily as a treating source, Dr. Wood's opinions regarding the nature and severity of plaintiff's impairments would be entitled to considerable deference, provided they are supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence. Such opinions as those of Dr. Wood, however, are not entitled to controlling weight if they're contrary to other substantial evidence in the record, including the opinions of other medical experts. And of course it is for the administrative law judge to resolve conflicts in the form of contradictory medical evidence under Veino v. Barnhart, 312 F.3d 578, pin cite 588, and it's from the Second Circuit 2002. If an ALJ doesn't give controlling weight to a treating source's opinion, the ALJ must apply various factors specified in 20 C.F.R. Sections 404.1527 and 416.927 to illuminate how much, if any, weight was given to the treating source's opinion. In the Second Circuit, they're called, so-called the Burgess factors. The failure to apply the proper legal standards for considering treating source opinions can provide a basis for reversal of an ALJ's determination. The Second Circuit has somewhat tempered that rule in Estrella v. Berryhill, 925 F.3d 90, Second Circuit 2019, and the cases that have come before and after Estrella, noting that if the court is satisfied after reviewing the administrative law judge's decision as a whole, the treating source rule was not violated.
In this case, Administrative Law Judge Hoffman does cite several reasons for discounting Dr. Wood's opinions. She notes that they're not supported by treatment notes and overall, the overall record, and that's at page 36 when it comes to the mental conditions experienced by the plaintiff and at page 42 when it comes to the physical, and some examples are cited. And let me step back, I know that plaintiff has argued that the administrative law judge, by saying that certain opinions are not supported, medical opinions that is, by treatment notes and records is playing doctor, but it is also true under the regulations that an opinion is entitled to controlling weight, for example, treating source opinion, only if it is supported by substantial evidence, including medical evidence, so it is perfectly legitimate and proper for the administrative law judge to make that analysis. The administrative law judge did not, it is clear, rotely discuss the Burgess factors in her decision, but she did point to some significant reasons why she rejected Dr. Wood's opinions. They're internally inconsistent when you look at them and focus on the walking, how long plaintiff can walk before needing a break, two different answers appear. Manipulation, again, inconsistent. The off task, the 25 percent opinion that plaintiff would be off task is speculative, there's no explanation given as to the basis for that opinion.
The issue really is not, as most plaintiffs would like to focus on, whether the court or plaintiff would deem Dr. Wood's opinion controlling. The focus is on, is the ALJ's determination supported by substantial evidence, or would a reasonable fact finder have to conclude otherwise than the administrative law judge did. And also, of course, the court must be satisfied that the treating source rule was not violated under Estrella. I note that these forms from Dr. Wood are check-box forms with minimal explanation. Such forms are notoriously not persuasive. Many courts have found that such forms, without explanation, should be given minimal, if any, weight.
This case is somewhat similar to another fibromyalgia case in which the opinions of Dr. Lorensen, as a matter of fact, were discounted, Thomas Roy v. Commissioner of Social Security, 2020 WL 4365607, from the Northern District of New York, Senior District Judge Gary L. Sharpe. Again, it is clear in this case that there are contradictory medical opinions and the weighing of those opinions is entrusted in the administrative law judge under Veino. And the administrative law judge, it's well accepted, can elevate the opinions of other nontreating sources including Dr. Long, Dr. Lorensen, over Dr. Wood, even though Dr. Wood is a treating source, if they're more consistent with the notes of exams and so forth.
I also note that there is an opinion, as counsel noted, from an Occupational Therapist Ashleigh Graveline from December 1, 2016, it appears at pages 589 through 621 of the administrative transcript, based upon her examination of the plaintiff and testing. She concludes at page 593 that the plaintiff performed within the light work demand level as defined and outlined in the Dictionary of Occupational Titles. And although plaintiff argues that that was not entitled to consideration since, as an occupational therapist, Ms. Graveline is not an acceptable medical source, the regulations are clear that such opinions can be considered by an administrative law judge under 20 C.F.R. Sections 404.1527(f)(1) and 416.927(f)(1). The next -- and so I find that the treatment of Dr. Wood's opinions did not run afoul of the treating source rule and was properly explained.
The next argument is residual functional capacity argument. Residual functional capacity represents a finding of the range of tasks a plaintiff is capable of performing notwithstanding her impairments. Ordinarily, the RFC represents a claimant's maximum ability to perform sustained work activities in an ordinary setting on a regular and continuing basis, meaning eight hours a day for five days a week or an equivalent schedule. An RFC determination must be informed by consideration of all relevant medical and other evidence.
In this case, the issue is not, again, whether some evidence supports plaintiff's position but whether substantial evidence supports the administrative law judge. In other words, in many of these cases there can be two right answers, substantial evidence can support a plaintiff's argument and can also support an administrative law judge's determination which is contrary to that argument. It is also true that in formulating an RFC, an ALJ need not discuss literally every shred of evidence. There are some facts supporting plaintiff's position and she acknowledged as such, but the administrative law judge, in formulating her RFC, properly included plaintiff's rather fulsome activities of daily living at page 39, records, medical records showing that medications have controlled many of plaintiff's conditions, including her psoriatic arthritis and her pain at page 39. She cites relatively benign x-ray and MRI evidence at pages 3 9 to 40. She cites medical exams showing relatively benign findings at page 40. She relied on Occupational Therapist Graveline's evaluation and Dr. Lorensen's consultative opinions. Dr. Lorensen in her consultative report, which appears at pages 411 to 415 of the administrative transcript, she concludes that plaintiff suffers from no gross limitations in sitting, standing, walking, and handling small objects with the hands. She does experience moderate to marked limitations for bending, lifting, and reaching. The administrative law judge of course did, and I'll get to that in a moment, not accept Dr. Lorensen's opinion in whole which of course she's certainly entitled to do. She's entitled to accept some parts but not a whole of a medical opinion. The third argument -- And so I don't -- I do find that the residual functional capacity finding of the administrative law judge is supported by substantial evidence.
The third argument is that a vocational expert should have been called to fill in the void created by the additional exertional and nonexertional limitations experienced by the plaintiff. That argument really hinges upon Dr. Wood's additional limitations and so the argument fails since I have already found that her opinions were properly discounted.
The last issue pertains to the treatment of Dr. Lorensen's opinion and specifically surrounds the limitation, the moderate to marked limitation in bending, lifting, reaching. The administrative law judge acknowledged it but found it is not supported at page 41, and in doing so, she relied upon Occupational Therapist Graveline's opinion and plaintiff's activities of daily living. She explained the rejection of the moderate limitation in reaching.
The case is very similar to, as Commissioner argued, Dierdre R. v. Commissioner of Social Security, 2018 WL 4565769 from Administrative Law Judge -- I'm sorry, from Magistrate Judge Thérèse Wiley Dancks. In note 7 of her decision, Judge Dancks also notes that moderate to marked limitations does not necessarily preclude the performance of light work. So if, and I say only if because I do think that rejection was properly explained and supported by substantial evidence, but if Dr. Lorensen's limitation on reaching were to have been accepted, or should have been accepted, it would be a harmless error since under Dierdre, as well as Babcock v. Berryhill, 2018 WL 4347795, note 13, in that case it was a moderate restriction in bending and lifting, does not preclude light work. It's also supported by Moxham v. Commissioner of Social Security, that's 2018 WL 1175210, at *8. In that case, the consultative expert, Dr. Magurno, opined that plaintiff had marked limitations in squatting, lifting, carrying, and mild limitations for walking, standing, sitting, and bending, and the judge in that case, Magistrate Judge Daniel J. Stewart, concluded that plaintiff had failed to illustrate how those marked limitations in those areas would be inconsistent with light work. So, and I guess as a backdrop, we have to bear in mind that it is always the plaintiff's burden at least through step four to establish additional limitations that were not accounted for in the residual functional capacity. In this case, I find that burden was not met.
So in conclusion, I find that the administrative law judge's decision resulted from the application of proper legal principles and is supported by substantial evidence. I will grant judgment on the pleadings to the defendant and order dismissal of plaintiff's complaint. Again, thank you, both counsel, I hope you enjoy your summer.
MR. HASSELER: Thank you, your Honor.
MR. HENRY: Thank you, your Honor.
CERTIFICATE OF OFFICIAL REPORTER
I, JODI L. HIBBARD, RPR, CRR, CSR, 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 digitally-recorded 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 9th day of July, 2021.
JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter