Opinion
Civil Action 5:20-CV-0881 (DEP)
10-21-2021
JIMILIE D., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
FOR PLAINTIFF LAW OFFICES OF STEVEN R. DOLSON OF COUNSEL: STEVEN R. DOLSON, ESQ. FOR DEFENDANT SOCIAL SECURITY ADMIN. OF COUNSEL: HUGH DUN RAPPAPORT, ESQ.
FOR PLAINTIFF
LAW OFFICES OF STEVEN R. DOLSON
OF COUNSEL: STEVEN R. DOLSON, ESQ.
FOR DEFENDANT
SOCIAL SECURITY ADMIN.
OF COUNSEL: HUGH DUN RAPPAPORT, 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 1 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 conducted in connection with those motions on October 14, 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.
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, 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 2 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. 3
Transcript of a Decision held during a Telephone Conference on October 14, 2021, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.
APPEARANCES
(By Telephone)
For Plaintiff: STEVEN R. DOLSON, ESQ.
Attorney at Law
For Defendant: SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
BY: HUGH DUN RAPPAPORT, ESQ.
Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 4
(The Court and counsel present by telephone.)
THE COURT: Thank you both for excellent presentations, both written and oral. I have enjoyed working with you.
Plaintiff commenced this action 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 sought.
Background is as follows: Plaintiff was born in July of 1972 and is currently 49 years of age. Plaintiff was 40 years old at the alleged onset of disability on April 13, 2013. Plaintiff lives in an apartment in Madison, New York with two children who, by my calculations, are approximately 8 and 13 years old, respectively. They are both described as special needs children on some sort of autism spectrum. Plaintiff stands 5 foot, 5 inches in height and weighs 180 pounds. Plaintiff has undeniably experienced a troubled childhood. She had an abusive mother and was in nine foster homes. Plaintiff quit school in 10th grade, was in special education classes. She did achieve a GED in 1990. She is also a licensed certificated CNA and home health aide. She had one semester of college but failed in that experience. Plaintiff stopped working in April of 2013. Prior work 5 included as an assembly line worker in a wire factory, a college food services worker at Colgate University, a restaurant worker, a home care aide, and an assisted living facility aide. Plaintiff testified at 69 to 70 of the administrative transcript to being fired from several jobs.
Physically, plaintiff suffers from lumbar and cervical spine degenerative disk disease, carpal tunnel syndrome for which she has not had release surgery, fibromyalgia, psoriatic arthritis, asthma, headaches, obesity, and a thyroid condition. Plaintiff has not undergone any surgery. She does receive injections to relieve her pain.
Mentally, plaintiff suffers from attention deficit and hyperactivity disorder, or ADHD, an intellectual disorder, depression, post-traumatic stress disorder, borderline personality disorder. She receives counseling every other week and sees a psychiatrist monthly. Plaintiff has been treated from various sources including Bassett Healthcare, Adirondack Pain Management, Oneida Family Counseling Services, ADHD and Autism Psychological Services, and Madison County Department of Health.
Plaintiff is able to bathe, dress, shower, cook, clean, do laundry, shop, care for her two autistic children, attend counseling in group sessions, she watches television, listens to the radio, goes out and is on social media. 6
In terms of background, plaintiff applied for Title II and Title XVI benefits in February of 2010. That application was denied after a hearing and the Social Security Administration Appeals Council denied review on March 4, 2013. Plaintiff again applied for Title II and Title XVI benefits on July 31, 2015, alleging an onset date of April 13, 2013, and originally claiming depression, PTSD, dysthymic disorder, and bulging disks as a basis, as well as anxiety, ADHD, and arthritis, later adding fibromyalgia and an intellectual disorder.
A hearing was conducted on July 11, 2017 by Administrative Law Judge David Pang, who issued an unfavorable decision on August 14, 2017. The matter was remanded by the Social Security Administration Appeals Council on August 14, 2018 for further proceedings to focus on plaintiff's mental limitation.
A hearing was conducted on April 24th, 2019 by a duly assigned administrative law judge, Kenneth Theurer. ALJ Theurer issued an unfavorable decision on May 28, 2019 which became a final determination of the agency on July 1, 2020 when the Social Security Appeals Council denied plaintiff's application for review. This action was commenced on August 5, 2020 and was timely.
In his decision, ALJ Theurer applied the familiar five-step test for determining disability. He first noted 7 that plaintiff was last insured on June 30, 2014.
(Interruption by the court reporter and pause in proceedings.)
THE COURT: We are back on the record. In his decision, ALJ Theurer applied the familiar five-step test for determining disability. He first noted that plaintiff was last insured on June 30, 2014.
At step one, the ALJ concluded plaintiff did not engage in substantial gainful activity since April 13, 2013.
At step two, he concluded that plaintiff does suffer from physical and mental impairments that impose more than minimal limitations on her ability to perform basic work activities, including degenerative disk disease of the lumbar spine, degenerative disk disease of the cervical spine, carpal tunnel, fibromyalgia, psoriatic arthritis, asthma, intellectual disorder, attention deficit hyperactivity disorder, depression, post-traumatic stress disorder, borderline personality, and headaches.
At step three, the ALJ concluded plaintiff's conditions do not meet or medically equal any of the listed presumptively disabling conditions set forth in the regulations, specifically considering Listings 1.04, 3.03, 14.09, Social Security Ruling 12-2p regarding fibromyalgia, and the 12.02, et cetera series governing the mental impairments. 8
The ALJ next concluded that plaintiff retains the residual functional capacity, or RFC, to perform sedentary work with additional limitations that address both physical and mental impairments.
At step four, ALJ Theurer concluded that plaintiff is incapable of performing her past relevant work as a home health aide and a cafeteria food service worker, a strander operator, and a restaurant aide.
At step five, he noted first that if plaintiff were capable of performing a full range of sedentary work, a finding of no disability would be directed by the Medical-Vocational Guidelines and specifically Grid Rule 201.28. Based on the testimony of a vocational expert who considered a hypothetical that mirrored the residual functional capacity finding, ALJ Theurer found that plaintiff could perform work available in the national economy and cited as representative jobs addresser, document preparer, and cutter and paster/press clippings, and therefore concluded plaintiff was not disabled at the relevant times.
As you full well know, the court's function in this case is limited to determining 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 fact.
Plaintiff's contentions in this case are limited. 9 She challenges the administrative law judge's failure to consider opinions in the record from Dr. Harry Kissi and Nurse Practitioners Grace Digman, Svetlania Bykovich, and Maureen Gallagher. The focus of the claimed error is on plaintiff's physical capacity.
Of course the first requirement, or pivotal to the finding of disability or no disability is determining plaintiff's residual functional capacity, or RFC, which represents a finding of the range of tasks a plaintiff is capable of performing notwithstanding her impairments. Ordinarily, an 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 is informed by consideration of all of the relevant medical and other evidence and of course, to pass muster, must be supported by substantial evidence. Because the applications in this case were filed prior to March of 2017, the former regulations control the weight to be given to medical opinions. I will cite the regulations that govern the Title II application. There are parallel and virtually identical regulations that govern the Title XVI claim as well. Evaluation of medical opinions is addressed in 20 C.F.R. Section 404.1527. Subsection (a)(1) of that regulation defines a medical opinion as the statement from an 10 acceptable medical source that reflect judgments about the nature and severity of a claimant's impairments, and I'm paraphrasing. Of course, acceptable medical sources do not include nurse practitioners but do include physicians.
The weight to be given to a medical opinion is governed by Section 404.1527(c), which addresses factors to be considered in weighing a medical opinion. The only opinion that satisfies that definition that was not mentioned was that from Dr. Harry Kissi, and it appears at page 696 of the administrative transcript. It was not mentioned, and as the Commissioner concedes, that clearly was error. It was not mentioned by ALJ Theurer in his opinion. However, as plaintiff concedes, the medical opinion of Dr. Kissi does not undermine the resulting residual functional capacity finding and therefore any error in that regard is harmless.
The others include opinions from Nurse Practitioner Grace Digman from March 17, 2016 that indicates plaintiff is very limited in standing, lifting and carrying, pushing, pulling, and bending. And in the form which is at 673 of the administrative transcript, part of Exhibit 21F, it indicates back, neck pain, limited in pushing, pulling, lifting, standing, walking for extended periods of time.
There is also an opinion from Maureen Gallagher, a nurse practitioner, from November 7, 2015 at 675. Again, very limited in pushing -- these are very difficult to 11 read -- lifting and carrying, sitting, and pushing, pulling, and bending. And that one states back, neck pain, no pushing, pulling, lifting, or carrying.
There is also an opinion from Nurse Practitioner Gallagher from May 29, 2015 approximately, it's not dated but that is indicated as the last date of examination. On that form which appears at 677, indicating plaintiff is very limited in standing, lifting and carrying, pushing, pulling, bending, and it says back/neck pain, no pushing, pulling, lifting, or carrying.
There is a, an opinion from Nurse Practitioner Svetlania Bykovich, doesn't appear to be dated, and it indicates lift -- limited lifting, pushing, and pulling.
There is further opinion from Nurse Practitioner Gallagher from December of 2013 at page 700 and indicates plaintiff is very limited in standing, sitting, lifting, carrying, pushing, pulling, bending, and it says back pain which increases with pushing, pulling, lifting, and carrying. She cannot sit or stand for more than 15 minutes I believe is what it says, it is somewhat illegible.
And lastly, there is an opinion from Nurse Practitioner Gallagher on -- it is again undated but indicates that the last examination occurred on May 8, 2013. This appears at page 712. Shows that plaintiff is very limited in standing and lifting and carrying, and it says no 12 standing or sitting for more than one half hour at a time, no lifting, pushing, or pulling, all of these activities aggravate sciatic and cervical neck.
The only mention of Nurse Practitioner Gallagher appears at page 19. It is part of the step three analysis by the administrative law judge and clearly focuses on the mental component which is really not the thrust of Nurse Practitioner Gallagher's several opinions. Nurse Practitioner Digman and Nurse Practitioner Bykovich are not mentioned at all.
These are not acceptable medical sources. However, consideration of their opinions is governed by Section 404.1527(f), which requires that they be considered, using the factors articulated in subdivision (c) of that regulation. And specifically, that section goes on to provide as follows: The adjudicator generally should explain the weight given to opinions from these sources, or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning when such opinions may have an effect on the outcome of the case. These are extremely important opinions, particularly since it appears that Nurse Practitioner Gallagher has treated the plaintiff since November 27, 2012. There's evidence in the record of several examinations. I believe that there was a 13 duty on the part of the administrative law judge to mention those opinions and give an indication that they were considered. Kentile v. Colvin, 2014 WL 3534905 from the Northern District of New York, July 17, 2014. They should have been reviewed and Section 404.1527(f) should have been but was not followed. The failure to discuss and explain those opinions is error. Javon W. v. Commissioner of Social Security, 2019 WL 1208140, from the Northern District of New York, March 13, 2019, and Saxon v. Astrue, 781 F.Supp.2d 92 from the Northern District of New York, 2011.
The question is, is there prejudice? It is true that in the first instance it is for the administrative law judge to weigh conflicting opinions in the record. Veino v. Barnhart, 312 F.3d 578, from the Second Circuit, 2002. I am unable to say that the error was harmless. The opinions of the nurse practitioners and particularly Nurse Practitioner Gallagher are more restrictive in several areas than the residual functional capacity, including the sit-stand limitations. The administrative law judge failed in his duty to consider those opinions and articulate what weight, if any, was given to them and why.
So I will grant judgment on the pleadings to the plaintiff and remand the matter for further consideration without a directed finding of disability. I don't believe there is such persuasive proof of disability in the record as 14 to warrant a directed finding in that regard.
Thank you both for excellent presentations, I hope you have a good rest of the day.
MR. RAPPAPORT: Thank you, your Honor.
MR. DOLSON: Thank you, Judge.
(Proceedings Adjourned, 11:38 a.m.) 15
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 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. 16