Opinion
Civil Action 6:22-CV-1139 (DEP)
12-07-2023
GARY G., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner Social Security Administration, Defendant.
LEGAL AID SOCIETY OF MID-NEW YORK, INC.FOR PLAINTIFF SOCIAL SECURITY ADMIN. OFFICE OF GENERAL COUNSEL FOR DEFENDANT OF COUNSEL: ELIZABETH LOMBARDI, ESQ. SHANNON FISHEL, ESQ.
LEGAL AID SOCIETY OF MID-NEW YORK, INC.FOR PLAINTIFF
SOCIAL SECURITY ADMIN. OFFICE OF GENERAL COUNSEL FOR DEFENDANT
OF COUNSEL: ELIZABETH LOMBARDI, ESQ. SHANNON FISHEL, ESQ.
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 November 29, 2023, 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 Commissioners 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
November 29, 2023 100 South Clinton Street, Syracuse, New York
For the Plaintiff:
LEGAL AID SOCIETY OF MID-NEW YORK, INC.
221 South Warren Street
Suite 310
Syracuse, New York 13202
BY: ELIZABETH VICTORIA LOMBARDI, ESQ.
For the Defendant:
SOCIAL SECURITY DEPARTMENT
6401 Security Boulevard
1520 Annex
Baltimore, Maryland 21235
BY: SHANNON FISHEL, 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: 2:21 p.m.)
THE COURT: Well, let me begin by thanking counsel for excellent and spirited presentations. I've enjoyed working with you.
I have before me a challenge brought on behalf of the plaintiff to an adverse determination by the Commissioner of Social Security finding that he was not disabled at the relevant times and therefore ineligible for the benefits sought. The challenge is brought pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3).
The background is as follows: Plaintiff was born in May of 1962. He is currently 61 years of age. He was 57 at the time of his application for benefits in February of 2020. Plaintiff stands 5'8" in height and weighs approximately 140 pounds. Plaintiff lives alone in an apartment in Rome, New York. He has a 12th grade education and while in school attended regular classes. He also has additional training as an EKG assistant. Plaintiff has a driver's license but no car. He served in the United States Army from February 1983 until February 1990 and received an honorable discharge.
When the plaintiff last worked is somewhat equivocal based on the record before the Court. At page 391, he claims that he stopped working in December of 2013. In 2019, however, he reported to another ALJ that he stopped working in 2017 and that the reason he stopped working was because if he worked too much, he would lose benefits of some sort. Plaintiff has worked as a hospital janitor, as a convenience store clerk, and as a packer. And at page 41 of the Administrative Transcript, during the hearing, he testified that he walked out of every job that he held because people aggravate him.
Physically, plaintiff suffers from emphysema or chronic obstructive pulmonary disease, or COPD. He also has complained of right shoulder issues, groin issues. For his COPD, he uses an albuterol inhaler every three to four days, as needed, based on shortness of breath.
Mentally, he suffers from various mental conditions. They've been variously categorized, as the Administrative Law Judge noted, to include, on occasion, depression, anxiety, obsessive compulsive disorder, and at least by his therapist but not any recognized medical professional, posttraumatic stress disorder or PTSD. It's also been referred to, what he has, as fight to flight.
In terms of treatments, plaintiff has received treatment from NPP Robert Sharpe from March of 2020 and Licensed Clinical Social Worker Teresa Pascarella from 2017. He has received treatment for his various conditions, including his physical conditions, from the Veterans Administration, both a clinic in Rome and in Syracuse. His primary physician is described as Dr. Zaki Badawy.
Plaintiff's activities of daily living are fairly extensive. They include cooking, cleaning, doing laundry, shopping. He showers. He grooms. He watches television. He plays sports. He plays video games. He rides his bicycle one hour per day, including in the winter. He does not take public transportation, but uses Medicaid cabs to attend his various appointments. He has, on occasion, fished with a friend. Plaintiff is a smoker and has been encouraged to quit, including at page 704 of the Administrative Transcript.
Procedurally, plaintiff applied for Supplemental Security Income Title XVI benefits on February 24, 2020, alleging an onset date of September 19, 2019. It appears that plaintiff had prior applications for benefits denied, including in May of 2017, at which time he argued disability both on physical and mental grounds, and September 23, 2019, where the focus of that application was only on his mental condition.
In support of his application, plaintiff claimed disability based on anxiety, fight to flight, COPD, mental issues, and a sleep disorder. That's at page 391 of the Administrative Transcript.
On May 19, 2021, a hearing was conducted by Administrative Law Judge Elizabeth Koennecke. Judge Koennecke held a supplemental hearing with a vocational expert on November 23, 2021. On December 2, 2021, Administrative Law Judge Koennecke issued an adverse determination which became a final determination of the agency on October 5, 2022, when the Social Security Administration Appeals Council denied plaintiff's application for review. This action was commenced on November 2, 2022, and is timely.
In her decision, Administrative Law Judge Koennecke applied the familiar five-step sequential test for determining disability. At step one, she concluded that plaintiff has not engaged in substantial gainful activity since February 24, 2020.
At step two, she concluded that plaintiff suffers from severe impairments that impose more than minimal limitations on his ability to perform basic work functions, specifying those as a mental impairment, variously characterized.
At step three, ALJ Koennecke 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. After reviewing plaintiff's claims and addressing them and giving an outline of her evaluation of the various medical opinions in the record, ALJ Koennecke -- I should say, prior to doing that, ALJ Koennecke concluded that plaintiff retains the residual functional capacity, or RFC, to perform a full range of work at all exertional levels with the following limitations: He can understand and follow simple instructions and directions, perform simple tasks independently, maintain attention and concentration for simple tasks, and regularly attend to a routine and maintain a schedule. The claimant can handle simple repetitive work-related stress in that he can make occasional decisions directly related to the performance of simple tasks in a position with consistent job duties that does not require him to supervise or manage the work of others. The claimant should avoid work requiring more complex interaction or joint effort to achieve work goals. He can have no contact with the public.
Applying that residual functional capacity at step four, ALJ Koennecke concluded that plaintiff is capable of performing his past relevant work as a material handler, but not as a maintenance machine repairer.
She made an alternative finding at step five and, based on the testimony of the vocational expert, concluded that plaintiff is capable of performing other available work in the national economy, citing as representative positions those of dishwasher, floor waxer, and janitor and, therefore, concluded that plaintiff is not disabled.
As you know, the Court's task at this juncture is limited and the standard which I must apply is extremely deferential. The Second Circuit has observed as much in Brault v. Social Security Administration Commissioner, 683 F.3d 443 from 2012, and more recently reaffirmed and reiterated in Schillo v. Kijakazi, 31 F.4d 64 from 2022.
I must determine whether correct legal principles were applied and the resulting determination is supported by substantial evidence, which is defined as such relevant evidence as a reasonable mind would find sufficient to support a conclusion.
In this case, plaintiff has raised four contentions. The first two are somewhat interrelated. He contends first at step two that the Administrative Law Judge erred in not finding his COPD to be severe and relatedly argues that the residual functional capacity finding should have included a limitation on exposure to pulmonary irritants, extreme temperatures, and humidity.
With regard to plaintiff's mental limitations, he concludes that the residual functional capacity should have included a greater limitation on the interaction with others and complains of the failure to make specific findings concerning plaintiff's ability to handle stress.
First, turning to the step two determination. At step two, the claimant must show that he or she has a medically determinable impairment that rises to the level of a severe impairment. An impairment fails to reach that threshold of severity when it does not significantly limit a claimant's physical or mental ability to perform basic work activities, which include the ability to engage in exertional functions; see, hear, or speak; understand, remember, and carry out simple instructions; use judgment; respond appropriately to supervision, coworkers, and usual work situations; and deal with changes in a routine work setting, 20 C.F.R. Section 416.22.
Admittedly, the requirement at step two to establish a severe impairment is de minimis and intended only to screen out the weakest of cases. However, the mere presence of a disease or impairment or establishing that a person has been diagnosed or treated for a disease or an impairment is not by itself sufficient to render a condition severe. And, of course, the burden is on the plaintiff through step four to establish not only the existence of a diagnosed condition, but the resulting limitations.
There are three opinions that arguably speak to plaintiff's physical condition. Dr. Rita Figueroa, a consultative examiner, concluded that plaintiff should avoid exposure to pulmonary irritants. That's at page 549 of the Administrative Transcript. That was partially rejected by the Administrative Law Judge at page 18 of the Administrative Transcript. And specifically, the environmental restrictions were found to be inconsistent with the evidence and the cited reasons are: One, the record convincingly demonstrates the claimant to have no respiratory difficulties; two, not only has the claimant reported riding his bicycle an hour a day during the winter; but three, he is a current smoker. And she concludes the claimant's ongoing tobacco use and his ability to perform a generally vigorous activity in cold temperatures are wholly inconsistent with the environmental restrictions Dr. Figueroa and also Dr. Koenig described. And Dr. Koenig is a state agency consultant, he did not examine the plaintiff, but did review plaintiff's medical records and concluded at page 122 of the Administrative Transcript that plaintiff should avoid concentrated exposure to fumes, odors, dust, gases, poor ventilation, et cetera.
Dr. B. Stouter, a state agency consultant, issued an opinion on August 14, 2020. In that opinion at page 108, he or she concluded he does not suffer from any severe physical impairment. The opinion evidence, of course, is subject to review under the new regulations that took effect in March of 2017. Under those regulations, the Commissioner does not any longer defer or give specific evidentiary weight, including controlling weight, to any medical opinions, including those from medical sources. Instead, the ALJ must consider whether those opinions are persuasive by primarily considering whether they are supported by, and consistent with, the record in the case, 20 C.F.R. Section 416.920c(a). And then, of course, the ALJ must articulate in his or her determination as to how persuasive each medical opinion is found to be when considering supportability and consistency. There are other factors which may be considered, but the ALJ is not required to explain how those additional factors are considered.
In my view, substantial evidence supports the determination that plaintiff's COPD or emphysema, however it is characterized, is severe at step two. There has been minimal treatment for COPD. As the Administrative Law Judge noted plaintiff rides a bike one hour per day, including in winter, and smokes. While Dr. Figueroa did conclude in the medical source statement that there should be limited exposure, in fact, no exposure to pulmonary irritants, when she examined the plaintiff's chest and lungs, she found increased AP diameter but clear to ascultation, percussion normal, no significant chest wall abnormality, and normal diaphragmatic motion. So as was noted, there does not appear to be support in the observations during the exam that was for the limitation in the medical source statement.
I also note that I reviewed the treatment notes from both Nurse Practitioner Sharpe and from the VA, and they don't seem to support, as the ALJ noted, plaintiff's claim of difficulty in breathing and the need for restriction on pulmonary irritants. September 1, 2020, plaintiff denied shortness of breath. That's at 570 and 562. On April 7, 2021, plaintiff was negative for shortness of breath. That's at 700. On July 2, 2020, plaintiff denied shortness of breath. That's at 579. On October 8, 2010, a note from the VA found mild atelectasis left lung base, no pleural effusion or pneumothorax identified. That's at 620 and 503. On August 21, 2019, lungs were clear, no wheezing. That's at 664. On April 8, 2020, no complaints. That's at 631. On April 8, 2021, it was noted that plaintiff was still smoking, uses inhaler every three to four days when short of breath. That's at 704. In conclusion, I find that the determination at step two is supported by substantial evidence when it comes to rejection of COPD.
Similarly, with regard to the residual functional capacity finding and the argument that it should have included a limitation on exposure to irritants and the cold, of course an RFC is pivotal to any determination of a disability. An RFC, of course, represents the range of tasks a plaintiff is capable of performing notwithstanding the impairments at issue, 20 C.F.R. Section 416.945(a). By that, we mean 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 claimant's physical and mental abilities and the evidence in the record.
In this case, as I said, Dr. Figueroa stated that plaintiff should avoid exposure to pulmonary irritants. Dr. Koenig concluded that plaintiff should avoid concentrated exposure to fumes, odors, et cetera. I don't think that any error in that regard would by definition be harmless because I think an argument could be made that a vocational expert should be queried on whether or not a limitation on exposure to irritants would affect the step five alternative disposition. However, as I indicated previously, at page 18 the Administrative Law Judge rejected the need for environmental limitations and explained convincingly why she did that. I am not able to say that no reasonable factfinder could conclude as the Administrative Law Judge did.
The treating source rule does not apply. Neither of the two professionals that opined to a limitation were treating sources. One did not examine the plaintiff. The other did, but as I indicated, the results of the examination don't really seem to support the final determination. So in conclusion, I find that the plaintiff failed to prove any limitations on exposure is warranted.
Turning to the mental RFC component, it's noteworthy that there are significant limitations on interaction, no contact with the public, no supervision of others, no complex interaction or joint effort, simple tasks only independently. It's clear from the record, including plaintiff's testimony, that his stress comes from interaction with others and specifically coworkers. He stated during the hearing at page 34, I believe, that he did not have problems with supervisors. In my view, the limitations are supported by the opinions of Dr. May and Dr. Butler and, of course, as state agency consultants, their opinions can provide substantial evidence for a resulting determination.
Dr. May, both in the original report, which is Exhibit 4A, and later, on page 553, in August of 2020, stated his or her opinion that based on the evidence in the file, claimant can perform work tasks with limited and superficial contact with other workers and the public, and specified that the limitations are due to anxiety and depression, currently moderate in severity. In my view, the RFC determination, which is exceedingly specific in many regards when it comes to interaction with others, accommodates that determination. Similarly, in his or her opinion, Dr. Butler found moderate limitations, but in the end, at page 125, stated claimant is capable of simple to complex tasks in low pressure settings with limited interpersonal contact. Again, I believe that that opinion is adequately accommodated by and consistent with the RFC determination in this case.
I also note that there are not necessarily a lot of inconsistencies with the opinion of Therapist Pascarella. I have been through the treatment notes from Therapist Pascarella and Nurse Practitioner Sharpe. The findings with regard to plaintiff's mental health condition are relatively benign. He's not had any hospitalization or emergent treatment. And I note, of course, it is well accepted that an Administrative Law Judge's RFC finding does not need to perfectly match any one opinion. In my view, plaintiff's problem essentially is with coworkers. He stated at page 44, no trouble with supervisors.
The RFC specifies no contact with the public. And I think the remaining aspects of the RFC not requiring him to supervise or manage the work of others and avoiding work requiring more complex interaction or joint effort to achieve work goals adequately accommodates what limitations are necessary to address his mental health conditions.
In the end, I find that substantial evidence supports the RFC finding. Plaintiff's counsel confirmed that assuming the RFC finding is supported, he does not challenge -- plaintiff does not challenge the step four or step five determinations, and so I find that proper legal principles were applied and substantial evidence supports the resulting determination. I will grant judgment on the pleadings to the defendant and order dismissal of plaintiff's complaint.
Thank you, both. I hope you have a wonderful holiday season.
MS. LOMBARDI: Thank you, your Honor.
MS. FISHEL: Thank you, your Honor.
(Time noted: 2:48 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 1st day of December, 2023.