Opinion
Civil Action 5:20-CV-341 (DEP)
08-24-2021
JOHN C., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
APPEARANCES: FOR PLAINTIFF OLINSKY LAW GROUP FOR DEFENDANT SOCIAL SECURITY ADMIN. OF COUNSEL: MELISSA A. PALMER, ESQ. HOWARD D. OLINSKY, ESQ. LUIS PERE, ESQ.
APPEARANCES:
FOR PLAINTIFF
OLINSKY LAW GROUP
FOR DEFENDANT
SOCIAL SECURITY ADMIN.
OF COUNSEL:
MELISSA A. PALMER, ESQ.
HOWARD D. OLINSKY, ESQ.
LUIS PERE, 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(3)(c), are cross-motions for judgment on the pleadings. Oral argument was heard in connection with those motions on August 17, 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 PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES
August 17, 2021100 South Clinton Street, Syracuse, New York
For the Plaintiff: (Appearance by telephone)
OLINSKY LAW GROUP
300 South State Street
Suite 420
Syracuse, New York 13202
BY: MELISSA A. PALMER, ESQ.
For the Defendant: (Appearance by telephone)
SOCIAL SECURITY ADMINISTRATION
J.F.K. Federal Building, Room 625
15 New Sudbury Street
Boston, Massachusetts 02203
BY: LUIS PERE, 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.)
THE COURT: Let me begin by thanking both counsel for excellent presentations. The material that you have provided to the Court in the way of written submissions was extremely helpful. I found this case to be very interesting.
I have before me a challenge to an adverse determination by the Commissioner of Social Security pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3) challenging a finding that the plaintiff was not disabled at the relevant times and therefore ineligible for the benefits sought.
The background is as follows: Plaintiff was born in August of 1968 and is currently about to turn 53 years of age shortly. He was 48 years old at the alleged onset of his disability in August of 2016. Plaintiff stands 5'11" in height and has weighed at various times between 157 and 166 pounds. Plaintiff lives alone in Auburn, New York. He did live with his mother who apparently died in May of 2018.
Plaintiff has a 10th grade education and did achieve a GED. He also had six months of vocational training in the field of electrical trades. The evidence is equivocal as to whether plaintiff was in regular or instead special education classes. From his function report, it was indicated that he attended school in regular classes, but he advised Dr. Shapiro that he was in special education classes. Plaintiff apparently suffered from behavioral issues of significance while in school.
He also has a history of foster care and, by most accounts, a rough childhood. Plaintiff is left-handed. He has a driver's license but no vehicle.
Plaintiff stopped working in August of 2016. At page 279, he indicated to his counselor that it was due to stress and back pain. He advised Dr. Shapiro, at 297, that he left voluntarily because he could no longer stand at work. Plaintiff's past work has included as a dishwasher, a maintenance crew member at McDonald's, a landscaper, an unskilled laborer, and a prep cook. Plaintiff resumed working in November of 2018 where he works 45 to 50 hours per week picking up 15-pound bundles of newspaper and feeding them into a machine that apparently makes some sort of insulation. Plaintiff testified that he has no difficulty performing his job, but his supervisor does allow him breaks.
Physically, plaintiff suffers from possible lumbar sciatica, stenosis, radiculopathy, spondylosis, COPD, and a history of cataract surgery. Plaintiff, at 303, indicates he was told that he has bulging and/or slipped discs. Magnetic resonance imaging, or MRI, testing was performed on October 14, 2016. It appears at various locations, the report of that testing, in the record, including at pages 263 and 264, 331 and 332, and 275 to 276. The impression from that testing was mutlilevel degenerative changes of the lumbar spine, seen in association with grade 2 anteriorlisthesis of L5 on S1 with bilateral L5 pars defects; no significant central spinal canal stenosis, although some obliteration of the bilateral foramina at L5-S1; also, moderate lateral recess stenosis and reactive endplate edema at L2-L3; and asymmetric decreased signal intensity of the left kidney maybe due to technical artifact. There was also an indication of some bulging -- mild to moderate bulging at T12-L1, L1-L2, L2-L3, L3-L4, L4-L5. The plaintiff also underwent an X-ray at -- on March 3, 2007, of his back. That appears at 307.
Mentally speaking, the plaintiff suffers from posttraumatic disorder or PTSD, social anxiety disorder, depressive disorder, and schizophrenia. Some of his stressors have included the fact that his sister died in either 2015 or 2016 and a brother died of an overdose in December of 2016, in addition to his mother passing away.
Plaintiff was hospitalized at CPEP for 72 hours in 2007. At the time, he was apparently under the influence of cocaine and was regarded as a potential suicide risk. Plaintiff's primary care physician is Sara Zafar. He has also seen Dr. Renee Melfi to manage his pain since November of 2016. He did in the past receive mental health treatment at the Cayuga County Community Mental Health Center from Licensed Clinical Social Worker Michelle Fiorelli, but testified that although that treatment has helped him, he's not currently undergoing mental health treatment.
In terms of medications, plaintiff in the past has been prescribed Ativan, Gabapentin, and Seroquel, although he testified he's no longer taking Gabapentin. He's also had cortisone injections, pain blocks, and epidural injections. There is some indication in the record that he may have at one point in time undergone physical therapy, but there are no records of physical therapy in the Administrative Transcript. Plaintiff has a history of stimulant, marijuana, and cocaine abuse. He's also a daily smoker, approximately one and a half packs per day.
In terms of activities of daily living, plaintiff is able to dress, bathe, groom, cook, do dishes, clean -- although he denied the ability to clean to Dr. Lorensen -- do laundry, shop -- again, he denied the ability to shop to Dr. Lorensen --he can use public transportation, he watches television, and plays the guitar.
Procedurally, plaintiff applied for Title II benefits on December 9, 2016, and Title XVI Supplemental Security Income benefits on January 9, 2017, alleging an onset date of August 16, 2016, in both applications. He has claimed disability based upon a psychotic disorder, a generalized anxiety order, personality disorder, dysthymic disorder, spinal stenosis of the lumbar area, chronic arthritis of the spine, and schizophrenia. A hearing was conducted on January 18, 2019, with a vocational expert and plaintiff testifying before Administrative Law Judge Jeremy Eldred. On January 25, 2019, Administrative Law Judge Eldred issued an unfavorable decision which became a final determination of the agency on January 29, 2020, when the Social Security Administration Appeals Council denied plaintiff's application for a review. This action was commenced on March 26, 2020, and is timely.
In his decision, ALJ Eldred applied the familiar five-step sequential test for determining disability. He first noted that plaintiff had insured status for purposes of his Title II application through June 30, 2018. At step one, ALJ Eldred concluded that plaintiff had not engaged in substantial gainful activity between August 16, 2016, and November 18th --November of 2018 when he returned to work. He also noted parenthetically that he has considered plaintiff's return to work as part of the evidence regarding his abilities and limitations.
At step two, Administrative Law Judge Eldred concluded that plaintiff suffers from severe impairments, including degenerative changes of the lumbar spine, schizophrenia, depressive disorder, social anxiety disorder, PTSD, and polysubstance abuse.
He concluded, however, at step three that plaintiff's conditions do not either singly, or in combination, meet or equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations. ALJ Eldred next concluded that plaintiff retains the residual functional capacity, or RFC, to perform light work, except he can perform only simple routine tasks, can make only simple work-related decisions, can interact with supervisors or coworkers no more than occasionally, is unable to do a job that requires interaction with the public as part of the usual job duties, and can appropriately deal with ordinary changes in an unskilled occupation.
Applying that RFC finding at step four, ALJ Eldred concluded that plaintiff is not cable of performing his past relevant work since he could not meet the exertional requirements of the past relevant work.
At step five, ALJ Eldred concluded first that if plaintiff were capable of performing a full range of light work, a finding of no disability would be required under Medical-Vocational Guidelines or Grid Rule 202.21 and 202.14. Relying on the testimony of the vocational expert who was posed a hypothetical that tracked the RFC finding, ALJ Eldred concluded that plaintiff is capable of performing available work in the national economy and cited as representative positions those of cleaner, photocopy machine operator, and marker, and thus found that plaintiff was not disabled at the relevant times.
As you know, the Court's function in this case is extremely limited and the standard to be applied extremely deferential. The Court must determine whether correct legal principles were applied and whether the result is supported by substantial evidence, which is defined as such relevant evidence as a reasonable mind would find sufficient to support a conclusion. The Second Circuit has noted in Brault v. Social Security Administration Commissioner, 683 F.3d 443 from 2012, that the standard is exceedingly deferential, more so than even the clearly erroneous standard that we as lawyers are familiar with. The Court also concluded in -- observed, I should say, in Brault that under the standard once a fact is found by the Administrative Law Judge, that fact can be rejected only if a reasonable factfinder would have to conclude otherwise.
In this case, the plaintiff challenges the RFC finding, both its physical and mental components, as not supported by substantial evidence. Woven into that is the argument that the Administrative Law Judge failed to fill gaps in the record by either ordering another consultative exam or recontacting plaintiff's care providers. As a backdrop, I note that it is plaintiff's burden to establish his limitations through the RFC finding at step four, and I note that although represented by counsel, plaintiff did not submit any medical source statements from any treating sources. Of course, this is not fatal and the plaintiff can carry his burden in other ways, including through the existing evidence in the record and hearing testimony.
The first task, and pivotal to the finding of whether the plaintiff is disabled or not, is the determination of plaintiff's RFC which represents a finding of the range of tasks he is capable of performing notwithstanding his impairments. Ordinarily, an RFC represents a plaintiff'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 is informed by consideration of all of the relevant medical and other evidence, and, of course, an RFC finding must be supported by substantial evidence.
In this case I previously read the RFC, which includes both the physical ability to perform light work and some mental limitations that were added. In terms of the mental aspects, there were two medical opinions in the record speaking to that issue. One is from consultative examiner Dr. Jeanne Shapiro, a report from March 10, 2017, that appears at 297 through 301 of the record. In her report, Dr. Shapiro states that plaintiff appears to -- and I'm not sure quite the significance of the interjection of that phrase -- appears to have certain limitations, many of which are mild, some of which are deemed to be moderate, and moderate to marked limitations in a couple areas, including interacting adequately with supervisors, coworkers, and the public, and in regulating emotions, controlling behavior, and maintaining wellbeing. The Administrative Law Judge spoke to that opinion on page 16 of the Administrative Transcript and gave it significant weight because Dr. Shapiro had examined the plaintiff and was familiar with Social Security principles.
The second opinion that speaks to the mental condition of the plaintiff is from a psychologist, Dr. Fassler, dated March 21, 2017. It is incorporated within Exhibit 1A of the Administrative Transcript. Dr. Fassler reviewed the medical evidence, including Dr. Shapiro's report, and concluded that plaintiff retains the mental RFC to perform the basic demands of unskilled work on a sustained basis with limited interpersonal contact. The Administrative Law Judge spoke, also, regarding that report at page 16 of the Administrative Transcript and gave that report, also, significant weight.
I would acknowledge, as plaintiff has argued, that the opinion of ALJ Eldred could have been more robust in addressing the limitations of Dr. Shapiro and how they are consistent with, or not supported by, the evidence -- consistent with the RFC or not supported by the evidence. I would have liked to have seen a more fulsome discussion concerning those reports and how they interplay with and lead to the mental aspects of the RFC finding, but I'm not able to say that the RFC mental component is not supported by substantial evidence given the extremely deferential standard that I must apply.
Turning to the physical components of the RFC, the only opinion evidence addressing that comes from Dr. Elke Lorensen, her report dated March 10, 2017, it appears at page 303 through 307 of the Administrative Transcript. Dr. Lorensen concludes that there are no gross limitations to sitting, standing, walking, or handling small objects with the hands. There are moderate limitations for bending, lifting, and reaching. The opinion of Dr. Lorensen was discussed by Administrative Law Judge Eldred at page 16 and given significant weight.
I find that the residual functional capacity is supported by substantial evidence. Dr. Lorensen's opinion is somewhat vague. The use of the term moderate, for example, with regard to reaching and so forth is vague. The Second Circuit spoke to that in Curry v. Apfel. The plaintiff was deemed capable of performing light work in the RFC, which is defined under 20 C.F.R. Section 404.1567(b) to include, among other things, lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. And the definition goes on, of course, to address other issues.
The Administrative Law Judge, once again, could have been more detailed in his explanation, but he did not rely solely on the report of Dr. Lorensen, he relied on the plaintiff's activities of daily living, taking care of his mother, his ability -- and this is discussed at the bottom of page 15, his ability to perform other activities of daily living, including to shop, prepare meals, do general cleaning, and laundry. He relied on the nonsurgical conservative treatment for plaintiff's back pain, and that's a proper consideration. Plaintiff testified he was no longer taking Gabapentin for his back pain.
The plaintiff also returned to work in November of 2018 at a job that included lifting up to 15 pounds occasionally for 45 to 50 hours per week. The ALJ noted that when asked at the hearing whether his health problems had changed over time, the testimony was that his health is getting worse. From that, the Administrative Law Judge drew the inference that if his health is worse now than it was before during the relevant period and he is able to work 45 to 50 hours per week at this job, that he also could have worked during the relevant period. I think that's a proper inference to draw.
I am unable to say, given those circumstances, that the resulting residual functional capacity physical component was not supported by substantial evidence, so I do find the residual functional capacity, applying the requisite deferential standard, is supported by substantial evidence. The step five determination, which was based on a vocational expert's testimony, that in turn was based on a hypothetical that tracked the RFC, I find that the Commissioner at step five did carry her burden of proof. I will therefore award judgment on the pleadings to the defendant and order dismissal of plaintiff's complaint.
Thank you both for excellent presentations. I hope you have a good rest of the summer.
MS. PALMER: Thank you, your Honor.
MR. PERE: Thank you, your Honor.
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 I transcribed the foregoing proceedings from a digital recording, and that the foregoing is a true and correct transcript thereof.
HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR Official U.S. Court Reporter