Opinion
Civil Action 3:23-cv-488 (DEP)
05-29-2024
TROY G., Plaintiff, v. MARTIN J. O'MALLEY, Commissioner of Social Security Administration,[1] Defendant.
APPEARANCES: FOR PLAINTIFF LACHMAN, GORTON LAW FIRM OF COUNSEL: PETER A. GORTON, ESQ. GEOFFREY M. PETERS, ESQ. FOR DEFENDANT SOCIAL SECURITY ADMIN. OFFICE OF GENERAL COUNSEL
APPEARANCES:
FOR PLAINTIFF
LACHMAN, GORTON LAW FIRM
OF COUNSEL:
PETER A. GORTON, ESQ.
GEOFFREY M. PETERS, ESQ.
FOR DEFENDANT
SOCIAL SECURITY ADMIN.
OFFICE OF GENERAL COUNSEL
ORDER
DAVID E. PEEBLES, U.S. MAGISTRATE JUDGE
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(c)(3), are cross-motions for judgment on the pleadings. Oral argument was heard in connection with those motions on May 22, 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 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.
DECISION TRANSCRIPT BEFORE THE HONORABLE DAVID E. PEEBLES
May 22, 2024
100 South Clinton Street, Syracuse, NY 13261
For the Plaintiff:
LACHMAN & GORTON LAW OFFICE P.O. Box 89 1500 East Main Street Endicott, New York 13761 BY: PETER A. GORTON, ESQ.
For the Defendant:
SOCIAL SECURITY ADMINISTRATION 6401 Security Boulevard Baltimore, Maryland 21235 BY: GEOFFREY M. PETERS, ESQ.
Hannah F. Cavanaugh, RPR, CRR, CSR, NYACR, NYRCR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
(315) 234-8545
(The Court and all parties present by telephone. Time noted: 2:20 p.m.)
THE COURT: Let me begin by thanking counsel for excellent presentations. You've presented me with some fascinating arguments, Attorney Gorton.
At the outset, let me address the issue of consent. When this case was filed, it was assigned to Magistrate Judge Hummel. The consent form that was signed on May 10, 2023, by you, Attorney Gorton, consented to Magistrate Judge Hummel. Sorry to put you on the spot, but do you consent -- it was transferred to me by our chief judge.
MR. GORTON: Yes.
THE COURT: Do you consent to my jurisdiction?
MR. GORTON: Yes. Win or lose, I consent. I have no clue what's going to happen, but, yes, we consent.
THE COURT: Well, you've never hesitated to take an appeal to the Second Circuit on the rare case when you thought I was wrong.
All right. So I have before me a challenge to an adverse Commissioner's determination finding that the plaintiff was not disabled at the relevant times and therefore ineligible for the disability insurance benefits sought. It is brought pursuant to 42, United States Code, Section 405(g).
The background is as follows: Plaintiff was born in December of 1968. He is currently 55 years old. He was 51 years of age at the alleged onset of disability on September 5, 2020. He stands 5'3" in height and weighs approximately 144 pounds. He lives in a house in Binghamton with two aunts, one uncle, and some pets. Plaintiff achieved a GED and, while in school, attended regular classes. Plaintiff has a driver's license and does drive.
Plaintiff stopped working in September of 2020. Prior to stopping, he worked in various positions, including, for a lengthy period of time, in a warehouse as both a dispatcher and a forklift operator. He held various temporary jobs at some point on a short-term basis, including as a dishwasher and prep cook. He did hospital housekeeping for approximately one year and most recently, before stopping work, worked in a warehouse processing facility for Dick's Sporting Goods.
Physically, plaintiff has a history of heart issues, as well as mild lumbar degenerative disc disease, diabetes, sleep apnea for which he uses a CPAP machine, some arthritis in his knees, and high cholesterol. The heart issues include from time to time going into atrial fibrillation, or AFib. He also sustained a myocardial infarction with left moderate anterior descending artery occlusion in April of 2019 resulting in catheterization. In May of 2020, he experienced a non-ST elevation myocardial infarction resulting in catheterization and he's had multiple hospital visits with AFib events. Plaintiff's primary care provider is Nurse Practitioner Ryan Little who is with United Health Services Primary Care where plaintiff has treated since approximately 2005.
In terms of activities of daily living, plaintiff is able to clean, cook, shop, groom himself, drive, care for his pets. He reported on May 25, 2021, at page 528, walking between one and four miles at a time and riding a bicycle several miles per week. In that report, he stated that he walks four miles several times a week.
The procedural history is as follows: Plaintiff protectively filed a Title II application for benefits on October 2, 2020, alleging an onset date of September 5, 2020. At page 242, he alleged disability based on Type II diabetes, two prior heart attacks, AFib conditions, sleep apnea, arthritis in his knees and back, high cholesterol, hypertension, and potential gallbladder problem.
A hearing was conducted by Administrative Law Judge Kenneth Theurer after his claim was denied at the initial entry level. The hearing was conducted on August 6, 2021, by ALJ Theurer who then subsequently issued an adverse decision on August 16, 2021. The Social Security Administration Appeals Council denied plaintiff's application for review on February 28, 2023. This action was commenced on April 20, 2023, and is timely.
In his decision, ALJ Theurer applied the familiar five-step sequential test for determining disability. He first noted that plaintiff is insured for benefits through December 31, 2025. He found that plaintiff had not engaged in substantial gainful activity since September 5, 2020, although he did note some earnings reflected in 2020 and 2021.
At step two, ALJ Theurer concluded that plaintiff does suffer from impairments that impose more than minimal limitations on his ability to perform basic work activities, including recurrent arrhythmia, history of myocardial infarction, and mild degenerative disc disease of the lumbar spine.
At step three, ALJ Theurer 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 1.15 and 4.05.
The Administrative Law Judge then concluded based on the entire record that plaintiff retains the residual functional capacity, or RFC, to perform light work as defined in the regulations, except he can never climb ladders, ropes, or scaffolds, and he can only occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs.
Applying that RFC at step four, ALJ Theurer concluded that plaintiff is unable to perform his past relevant work as a housekeeper, forklift operator, and a composite job of dispatcher and warehouse worker.
At step five, the Administrative Law Judge, noting that the burden at that step rests with the Commissioner, concluded that plaintiff is capable, notwithstanding his limitations, of performing work as a marker, assembler and an electronics assembler based on the testimony of a vocational expert.
As you know, the Court's function at this juncture is extremely limited. The standard to be applied is very deferential. I must determine whether correct legal principles were applied and the resulting determination is supported by substantial evidence defined as such admissible evidence as a reasonable mind would find sufficient to support a conclusion.
The Second Circuit Court of Appeals has noted, including in Brault v. Social Security Administration Commissioner, 683 F.3d 443, that the standard is extremely deferential. It is even more rigorous than the clearly erroneous standard. The Second Circuit has more recently reiterated this in Schillo v. Kijakazi, 31 F.4th 64, from April of 2022.
The plaintiff has raised several contentions in support of his challenge. I've broken them out as, number one, the evidence does not support the light work RFC since it is based, in plaintiff's view, on the ALJ's interpretation of medical data in the face of what the plaintiff characterizes as uncontested medical opinion of plaintiff's Nurse Practitioner; two, the plaintiff complains of the improper rejection of the medical source statements and opinions of Nurse Practitioner Little; three, the Administrative Law Judge, according to the plaintiff, improperly relied on, at and beyond step two, the prior administrative medical findings, or PAMFs, of state consultants; and four, because the hypothetical on which the vocational expert's testimony was based tracked a flawed RFC, the Commissioner failed to carry his burden at step five.
The backdrop, of course, is that it's well established now that the plaintiff bears the burden of proof through step four, including at the residual functional capacity stage, whereas the burden shifts to the Commissioner at step five to show that there is available work in the national economy in sufficient numbers that plaintiff is capable of performing.
Let me address the PAMFs issue first. It's a very interesting argument that was raised and I found it fascinating trying to wade through it. There are two PAMFs in the record, one from Dr. K. Gallagher, December 16, 2020, at pages 70 through 77 of the Administrative Transcript, and the second from Dr. M. Kirsch, from March 4, 2021, pages 79 through 87 of the Administrative Transcript.
In neither case were those two physicians the examining adjudicator. In both, they found at pages 85 and 75 that the plaintiff does suffer from medically determinable impairments, but they are not severe.
The step two test, of course, is very modest. An impairment fails to reach the threshold of severity, which is what these doctors have found, where it does not significantly limit a plaintiff's physical or mental ability to do basic work activities, 20 C.F.R. Section 404.1522. And as I indicated during the oral argument, one of the two consultative non-examiners, Dr. Kirsch, specifically stated at page 85, "not severe - impairment or combination of impairments does not significantly limit physical or mental ability to do basic work activities." That is a quote from Dr. Kirsch's opinion.
There doesn't seem to be any controversy that the PAMFs in this case, Dr. Kirsch and Dr. Gallagher's opinions are, in fact, PAMFs, 20 C.F.R. Section 416.913a(5), which defines a prior administrative medical finding as, "a prior administrative medical finding is a finding, other than the ultimate determination about whether you are disabled, about a medical issue made by our Federal and State agency medical and psychological consultants at a prior level of review in your current claim based on their review of the evidence in your case record."
The plaintiff has raised, I thought, an interesting argument arguing that the Administrative Law Judge is not permitted to rely on such a PAMF. And I admit that there could be, at first blush, ambiguity. 20 C.F.R. Section 416.920b(c)(2) would seemingly suggest that statements about whether or not a claimant has a severe impairment is inherently neither valuable, nor persuasive. However, when you -- and that certainly gives room for pause, but 20 C.F.R. Section 416.913a, which addresses evidence from Federal or State agency medical psychological consultants, suggests that the existence and severity of impairments about medical issues are properly addressed by a State agency medical or psychological consultant. And subsection (b)(1) of that provision states, "Administrative Law Judges are not required to adopt any prior administrative medical findings, but they must consider this evidence according to Sections 416.920b, 416.920c, and 416.927, as appropriate, because our Federal or State agency medical or psychological consultants are highly qualified and experts in Social Security Disability evaluation."
This is reiterated in a now rescinded Social Security ruling, but, nonetheless, I took it into account, SSR 96-6p, which suggests similarly that Administrative Law Judges are required to consider the findings of fact about the nature and severity of an individual's impairment as opinions of non-examining physicians and psychologists. It's interesting because that was allegedly replaced by SSR 17-2p, which actually doesn't speak to step two, but does speak to step three, but, nonetheless, I think it applies by analogy the new medical regulations embodied in 20 C.F.R. Section 404.1520c, and which apply in the case, also addresses consideration of prior administrative medical findings.
As both sides have pointed out, this issue was exhaustively addressed by one of my fellow magistrate judges to whom, ironically, this case was originally assigned, Magistrate Judge Christian Hummel, in Loni S. v. Commissioner of Social Security, 2023 WL 4195887. It was dated June 27, 2023. Ultimately, Judge Hummel analyzed both the regulations and the Program Operations Manual System, or POMS, of the Commissioner and found that they both suggest that PAMFs, including opinions regarding the severity of an impairment, are properly considered, and one of the reasons is that the consultants are defined as part of the -- they're actually the Commissioner's agents and they're part of the adjudicative team, so the prohibition on considering whether an impairment is severe speaks to a matter reserved to the Commissioner doesn't apply to those consultants. The cases make it clear that state agency consultants are highly qualified experts in disability evaluation and although they are non-examining typically, their opinions are still entitled to strong consideration. The case law still supports that, as well as 20 C.F.R. Section 416.913a(b)(1).
So a PAMF like those in this case do not bind the Administrative Law Judge, but should be considered. And, of course, it is proper, in fact, to rely on such a PAMF, Michael K. v. Commissioner of Social Security, 2022 WL 3346930 from the Second Circuit, Western District of New York, August 12, 2022. So I don't find any error in reliance upon the prior administrative findings in part to support the RFC, which leads me to the second argument, residual functional capacity.
An RFC represents a range of tasks a claimant is capable of performing notwithstanding his or her impairments and that represents, in turn, 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. And, of course, an RFC determination is informed by consideration of all the evidence of record, including medical evidence.
The ALJ in this case concluded that plaintiff is capable of performing light work with some modifications. Light work is defined in 20 C.F.R. Section 404.1567(b) as involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. It requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.
The RFC in this case is based on the prior administrative medical findings and plaintiff's testimony. It is clearly more limited than the prior administrative medical findings, but it is proper to rely on PAMFs of non-examining state consultants, Lisa C. v. Kijakazi, 2022 WL 2105853 from the Northern District of New York, June 10, 2022.
I found this case, as the Commissioner has argued, to be extremely similar to Ryan W. v. Commissioner of Social Security, 2022 WL 813934 from the Northern District of New York, March 17, 2022, from Magistrate Judge Daniel Stewart. Similar to this case, in that instance, the PAMFs found no limitations, the RFC was a light work RFC, and the Administrative Law Judge found more restrictions based on plaintiff's testimony. Magistrate Judge Stewart found no error in that respect.
In this case, as I indicated, PAMFs found no limitation in the ability of perform basic work functions. The Administrative Law Judge concluded that based on plaintiff's subjective testimony, he, in fact, experienced greater limitations. That does not error constituting remand, Ivey v. Commissioner of Social Security, 2020 WL 5046261, Western District of New York, August 27, 2020.
In this case, the RFC and the reason for adopting the RFC were explained by the Administrative Law Judge at pages 15 to 17 of his decision. It was based on the prior administrative medical findings, plaintiff's extensive ADLs, activities of daily living, and the fact that he is physically active, walking four miles several times per week and biking long distances, as well as based on imaging which showed only mild degenerative disc disease of the lumbar spine and changes, normal cardio exams, and I reviewed carefully the medical records and found that normal cardio findings and reports were recorded on multiple occasions, 563, 388, 400, 415, 422, 429, 440, 448, 456, 464, 471, 481, and 487, among others.
There's negative stress test results from August 2019 and February 2021, plaintiff's denial of cardio and back symptoms and shortness of breath on several occasions, and physical exams without significant cardiac findings, so I find that the residual functional capacity determination is supported by substantial evidence.
In terms of evaluation of the medical opinions, as the Commissioner has pointed out, this case, the application of which was filed after March 27, 2017, is subject to the amended regulations set forth in 20 C.F.R. Section -- I can't put my hands on it. I gave you the cite earlier. And under those regulations, the Commissioner no longer gives deference or specific evidentiary weight, including controlling weight, to any medical opinions. Instead, the ALJ must articulate and explain how he or she considered the factors of supportability and consistency and must consider various other factors which are not required to be elaborated.
In this case, the opinions include the prior administrative findings at (1)(a) and (2)(a), which we've already discussed. The Administrative Law Judge found them to be somewhat persuasive and explained at 15 to 16 why that is. He then went on to address Nurse Practitioner Little's opinions, and there were two. One is from December 14, 2020. It appears at 508. It merely states Nurse Practitioner Little's diagnosis and then goes on to say, quote, "I have recommended he not return to work as his medical condition is very complicated and work related stress has caused deterioration to his overall health." The opinion does not speak to any particular functions. The Administrative Law Judge determined that it was less persuasive and discussed the reasons for that at pages 16 and 17 of the Administrative Transcript.
It's not a particularly useful opinion and it speaks to an issue that is specifically reserved to the Commissioner, 20 C.F.R. Section 404.1520b(c)(3)(i), which states that we will not provide any analysis about how we considered such evidence in our determination. Evidence that is inherently neither valuable, nor persuasive, includes statements on issues reserved to the Commissioner and statements that you are not disabled, blind, able to work, or able to perform regular or continuing work. In any event, I find no error in the analysis of that opinion.
The second opinion from Nurse Practitioner Little appears at pages 518 through 520 of the Administrative Transcript. Undeniably, it is work preclusive. For example, it finds that the plaintiff would be off task between 20 and 33 percent of the day and absent more than four days per month. It also includes a two-hour limitation on standing and walking in an eight-hour workday and it includes a limitation on lifting that is inconsistent with light work.
The Administrative Law Judge addressed this opinion, as well, and found it less persuasive. This is at page 17. I thought the explanation could have been more fulsome, but when I read the Administrative Law Judge's decision as a whole, I don't find any error in evaluating this. Pursuant to the new regulations, one of the bases for rejecting it is the Administrative Law Judge's observation that there's no support given and cited for the opinions. And I recognize -- I'm painfully familiar with the Colgan decision, but, nonetheless, it is a proper consideration that a medical opinion is conclusory and not supported by a reference to such things as observations during exams, test results, and so forth, Sandra M. v. Commissioner of Social Security, 2023 WL 4972707 from the Northern District of New York, August 3, 2023. And I note that it is not uncontested, as the plaintiff argues, that it is inconsistent with, in fact, the two prior administrative medical findings.
In conclusion, in reading the decision as a whole, again, I find no error in the evaluation of Nurse Practitioner Little's opinions. At step five, the argument is premised and hinges on a finding that the hypothetical and RFC are not supported, an argument that I rejected. I find that the Commissioner has carried his burden at step five.
So in sum, I will award judgment on the pleadings to the defendant, order dismissal of plaintiff's complaint, and the entry of judgment to that effect.
Thank you so much for your arguments and presenting this case. It was interesting. I hope you have a good day.
MR. GORTON: Thank you, your Honor.
MR. PETERS: Thank you, your Honor.
(Time noted: 2:52 p.m.)
CERTIFICATE OF OFFICIAL REPORTER
I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR, 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 28th day of May, 2024.
s/ Hannah F. Cavanaugh
HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR Official U.S. Court Reporter