Opinion
Civil Action 8:22-CV-1338 (DEP)
12-19-2023
LESLIE F., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
COLLINS & HASSELER, PLLC LAWRENCE D. HASSELER, ESQ. SOCIAL SECURITY ADMIN. JASON P. PECK, ESQ.
COLLINS & HASSELER, PLLC
LAWRENCE D. HASSELER, ESQ.
SOCIAL SECURITY ADMIN. JASON P. PECK, 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) are cross-motions for judgment on the pleadings.Oral argument was conducted in connection with those motions on December 15, 2023, 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 Commissioners 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 action is timely, and the Commissioner does not argue otherwise. It has been treated in accordance with the procedures set forth in the Supplemental Social Security Rules and General Order No. 18. Under those provisions, the court considers the action procedurally as if cross-motions for judgment on the pleadings have 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 Commissioners determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the 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.
Transcript of a Decision held during a Telephone Conference on December 15, 2023, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.
(The Court and all counsel present by telephone.)
THE COURT: All right. Thank you. Let me begin by thanking counsel for excellent and spirited presentations.
Plaintiff has commenced this proceeding pursuant to 42 United States Code Section 405(g) to challenge an adverse determination by the Acting Commissioner of Social Security finding that he was not disabled at the relevant times and therefore ineligible for the benefits for which he applied.
The background is as follows: Plaintiff was born in October of 1970, he is currently 53 years of age. He was 50 years old at the amended onset date of October 4, 2020. That is significant as we will see later because that places him in an advanced age category for purposes of the Medical Vocational Guidelines in the Commissioner's Regulations. Plaintiff stands 5 foot 10 inches in height and weighs approximately 177 pounds. Plaintiff lives in Norfolk, New York with his father, he's apparently divorced.
Plaintiff has a high school education and while in school he attended regular classes. He does not have any further educational or vocational training. Plaintiff has a driver's license and does own a vehicle.
The record is a little equivocal as to when plaintiff stopped working. At one point it indicates that occurred on January 1, 2017, but I believe he meant January 1, 2018 from the context. Before stopping work, he was a line cook at a restaurant, which closed December 31, 2017. Plaintiff did say he would - he thinks he would have stayed there working if the restaurant remained open, that's at page 63 of the Administrative Transcript. While there, he did not work full time, he worked 20 to 25 hours per week and was given various accommodations for his physical conditions. Plaintiff also worked as a driver for a car dealer, taking vehicles to auction, and was a manager at various Dunkin Donut franchises. He left that position when his performance deteriorated due to personal problems -- apparently a divorce.
Physically, plaintiff suffers from degenerative disk disease of the cervical and lumbar spine and scoliosis. He underwent surgery in 1987, he is fused to L2 level with rods. Plaintiff has been in pain management for his condition since August of 2018. He has attempted to manage his pain through medication, physical therapy, home exercise, nerve blocks, and RF ablation.
Mentally, plaintiff does not claim to have any issues that would affect his ability to work.
Plaintiff, in addition to his residual neck and back pain, also suffers from shoulder pain, as well as a breathing issue for which he uses an inhaler two times per day. He has hypertension and a couple other nonsevere physical impairments.
Plaintiff has been treated by various providers, including FNP Hillary Heaton from North Country Community Health Center, Dr. Richard Distefano at SOS, Dr. Aathirayen Thiyagarajah, apparently a pain specialist, and FNP Krista Switzer, also some sort of pain management nurse practitioner. Plaintiff is on various medications including but not limited to gabapentin. Plaintiff is a smoker, he smokes one pack per day against medical advice.
Procedurally, plaintiff commenced this matter by applying for Title II Social Security benefits on January 29, 2021, alleging an onset date of December 31, 2018. That was later amended to October 4, 2020, coinciding with his 50th birthday. A hearing was conducted on October 27, 2021 by Administrative Law Judge Kenneth Theurer. ALJ Theurer issued an unfavorable decision on December 1, 2021. That became a final determination of the agency on November 7, 2022 when the Appeals Council denied plaintiff's application for review. This action was commenced on December 12, 2022 and is timely.
In his decision, ALJ Theurer applied the familiar five-step sequential test for determining disability.
At step one he concluded plaintiff had not engaged in substantial gainful activity subsequent to October 4, 2020.
At step two, he concluded that plaintiff does suffer from severe impairments which impose more than minimal limitations on his ability to perform basic work functions, including degenerative disk disease of the lumbar spine, scoliosis, and degenerative disk disease of the cervical 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 1.16.
Administrative Law Judge Theurer next determined that plaintiff retains the residual functional capacity to 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. He can occasionally climb ramps or stairs, never climb ladders, ropes, or scaffolds and can perform occasional balancing, stooping, kneeling, crouching, and crawling. Essentially this is a light work RFC with some modifications.
Applying that RFC at step four, ALJ Theurer concluded that plaintiff is not capable of performing -- I'm sorry, is capable of performing his past relevant work as a store manager and operations manager at Dunkin Donuts, it was a position he held from 2008 to 2012 and constituted substantial gainful activity. The vocational expert testified that plaintiff is capable of performing that job notwithstanding his impairments and resulting limitations.
As an alternative finding, ALJ Theurer concluded at step five that there are other jobs plaintiff is capable of performing notwithstanding his limitations, including cleaner - housekeeping, cafeteria attendant, and fast food worker, those are available in the national economy in sufficient numbers and therefore concluded that plaintiff was not disabled.
As you know, the court's function in this case is extremely limited to determining whether substantial evidence supports the resulting determination and correct legal principles were applied. As the Second Circuit has noted, including in Brault v. Social Security Administration, 683 F.3d 443 from 2012, this is an extremely deferential standard, more stringent than the clearly erroneous standard that lawyers are accustomed to. The Second Circuit's decision in Brault and its position concerning the standard of review was reaffirmed in Schillo v. Kijakazi, 31 F.4th 64 from April 6, 2022. Substantial evidence of course is defined as such relevant evidence as a reasonable mind would find sufficient to support a conclusion.
In this case plaintiff raises three basic contentions. He argues that plaintiff's - the ALJ improperly evaluated his subjective complaints of symptomology; secondly, he argues that the ALJ improperly evaluated the medical statements of record, including that from Nurse Practitioner Heaton, and instead favoring the determinations, the administrative determinations of state agency consultants; and third, he argues that the administrative law judge should have addressed the question of absences and whether plaintiff would be absent more than allowed by an employer.
Turning first to the medical opinions, there are essentially three opinions in the record. The first is from a state consultant, Dr. J. Sharif-Najafi, from March 26, 2021. It appears at 70 to 80 of the Administrative Transcript. The result according to that doctor was that plaintiff was capable of occasionally lifting 20 pounds, frequently lifting 10 pounds, standing and/or walking a total of six hours in an eight-hour workday, sitting about six hours in an eight-hour workday, frequently climbing ramps, stairs, occasionally climbing ladders, ropes, scaffolds, frequently balancing, frequently stooping, frequently kneeling, frequent crouching, occasionally crawling. As plaintiff has argued, this particular consultant did not have available significant records. Page 72 indicates that the only records reviewed were from the Community Health Center of North Country, and they were received on March 8, 2021, and Canton Potsdam Hospital, also received in March of 2021.
The second opinion of record is again from a state agency, administrative determination by a state agency consultant, M. Perrotti, from May 27, 2021, it is at 83 to 95 and appears also at 432 to 433. Dr. Perrotti affirmed the initial determination. Dr. Perrotti did have additional records available to him, 83 through 86 reveals the additional records that were reviewed and there are significantly more records than were reviewed by his predecessor.
The third opinion in the record is from FNP Hillary Heaton from North Country Community Health Center, it is cosigned by Occupational Therapist Stacey Graves. It is accompanied by a functional capacity evaluation conducted by Ms. Graves. It is dated July 8, 2021. That appears at 439 to 444 and as I said, it's accompanied by the FCE. The lift capacity is similar to the RFC, however, it differs in the following regards. It claims that plaintiff can carry only up to 10 pounds, can sit five hours out of an eight-hour workday with breaks 40 minutes at a time, can stand only two hours in an eight-hour workday 13 minutes at a time. Can walk one hour out of eight, at five to ten minutes at a time, can never stoop or crawl, can only occasionally reach, handle, finger, feel, push, and pull. So there is clearly a conflict between this medical source statement and the prior administrative determinations.
The evaluation of medical evidence in this case is subject to the new regulations that went into effect in March of 2017. Under those regulations the Commissioner does not defer or give any specific evidentiary weight, including controlling weight, to any medical opinions, including those from the claimant's 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). In his or her decision, an ALJ must articulate as to how and why persuasive he or she finds the medical opinions and explain how he or she considered those two elements, supportability and consistency. There are other factors that may and should be considered but the ALJ is not required to explain consideration of those factors. 20 C.F.R. Section 416.920c(c). In this case -- and significantly, and case law is clear, including in Veino v. Barnhart, 312 F.3d 578 from the Second Circuit 2002, evaluation of conflicting medical reports and opinions is a matter entrusted to an ALJ.
In this case, the administrative law judge did acknowledge the treating relationship of Hillary Heaton, although Ms. Heaton did not -- had not treated -- let's see. I take that back. It's clear and the plaintiff's counsel acknowledged that a state agency administrative determination can supply substantial evidence to support an RFC finding. Woytowicz v. Commissioner of Social Security, 2016 WL 6427787, from the Northern District of New York, October 5, 2016. In this case the administrative law judge found the opinions of the two state consultants, Dr. Sharif-Najafi and Dr. Perrotti, to be most persuasive, and Nurse Practitioner Heaton's medical source statement to be partially persuasive in that it does coincide when it comes to lifting with the RFC. The explanation is given on page 18 and page 19 for the persuasiveness of each of those opinions, and I don't find any error. The portions of the opinion of Nurse Practitioner Heaton that are rejected were found to be inconsistent with the conclusion of Occupational Therapist Graves. It is also inconsistent with the opinions of Dr. Sharif-Najafi and Dr. Perrotti. I don't find any error in the weighing of those opinions which, as I said before, is a matter entrusted to the Commissioner. I believe the explanation given by Administrative Law Judge Theurer was proper and permits adequate judicial review and is supported by substantial evidence.
The second issue, and it's actually the third issue, is the absenteeism issue. Plaintiff argues that the RFC should have included a statement as to how often plaintiff might be absent from work. Of course pivotal to any disability determination is an RFC assessment, which represents a finding of the range of tasks that claimant is capable of performing notwithstanding his or her impairments. Ordinarily that means 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 an RFC of course is informed by consideration of claimant's physical and mental abilities, symptomology, and other limitations that could interfere with work activities on a regular and continuing basis, as well as all the relevant medical and other evidence of record.
THE CLERK: Judge, I'm sorry to interrupt you, I think somehow we may have gotten dropped from the call. Can we check to see if the counselors can still hear us?
THE COURT: Can you still hear us? Mr. Hasseler? Mr. Peck?
THE CLERK: I can see us on -- I can see them on but I no longer see us on. So I think something may have happened with this.
(Pause in Proceedings.)
THE COURT: Counsel, apparently for some reason my phone malfunctioned. Can someone tell me about where I was?
MR. PECK: Your Honor, this is Jason Peck, you were about to -- you had gotten through all the primary stuff and you were about to I think issue the verdict.
THE COURT: Okay. So, did I go through the contentions that plaintiff raised?
MR. HASSELER: Yeah, the last thing I remember, you cited a couple cases.
THE COURT: Which case, do you remember?
MR. HASSELER: It was 31 F. - at 64.
THE COURT: Oh, that's Schillo.
MR. HASSELER: 31 F.
THE COURT: Okay, you'll get a transcript of this, let me just give you the short version. So I went through the contentions, I went through evaluation of medical statements under the new regulations, and I found that because the evaluation of conflicting medical opinions is a matter entrusted to the administrative law judge, I did not find any error. I found that there was a proper explanation given that permitted adequate judicial review, and that the resulting determination was supported by substantial evidence.
I truly apologize, we did not notice earlier that apparently the call had dropped.
I also went through the - I was addressing the second issue which was really the third issue, absences. I went through what an RFC determination is, and I was about to say that plaintiff bears the burden of proving his or her limitations. I didn't see any evidence in the record, including in plaintiff's testimony, that revealed that he would be absent from work, and implicit in the state administrative determinations, there was no reference to absences there. Nurse Practitioner Heaton was not asked about absences, and so absent plaintiff coming forward with some evidence that would support the notion that he would be absent from work more than one time per month, which I think is what the vocational expert said is the limit, I find no error.
And the last issue, which was actually the first, was assessment of plaintiff's subjective reports of symptomology. An ALJ of course must take into account plaintiff's subjective complaints when going through the five-step disability analysis. 20 C.F.R. Section 404.1529(a) and (b). The ALJ, however, is not required of course to blindly accept subjective testimony of a complainant, but instead must assess first whether the claimant has a medically determinable impairment that can reasonably be expected to produce the alleged symptoms and if so, evaluate both the intensity and persistence of those symptoms and the extent to which those symptoms limit the claimant's ability to perform work-related activities.
The matter is subject to Social Security Ruling 16-3p. Under that ruling, an ALJ should consider factors including the claimant's daily activities, the location, duration, frequency, and intensity of any symptoms, any precipitating and aggravating factors, the type, dosage, effectiveness, and side effects of any medications taken, other treatment received, and other measures taken to relieve symptoms. And of course if plaintiff's testimony was rejected, the ALJ must explicitly state the basis for doing so with sufficient particularity to enable a reviewing court to determine whether those reasons for disbelief were legitimate, and whether the determination is supported by substantial evidence. Tome v. Schweiker, 724 F.2d 711, Second Circuit 2000 -- 1984, and Martone v. Apfel, 70 F.Supp.2d 145, Northern District of New York 1999.
In this case, the administrative law judge went through the treatments received by the plaintiff, 15 to 17 of the Administrative Transcript. As far as I can see it's replete with positive findings of x-ray results, CT scan results, and MRI results. Plaintiff clearly underwent pain management strategies. Many of those notes cited show reduced range of motion, failed physical therapy attempts, tenderness, and positive straight leg raising. The summary of the administrative law judge's evaluation of plaintiff's complaints is one paragraph, it is succinct. No matter how sincere, however, statements by interested parties cannot overcome evidence of record. Furthermore, an individual's statements about his or her symptoms alone are insufficient to establish that an individual is disabled. In formulating the residual functional capacity for the claimant, moreover, I have accounted for any functional deficits of the plaintiff by limiting him to light exertional work with some postural restrictions.
In my view, and I have read thoroughly and reread thoroughly this decision, it is woefully deficient. The administrative law judge does not explain why in his view the medical evidence does not support plaintiff's claims of objective symptomology in a manner that would allow for sufficient judicial review. I find that this is harmful error. If plaintiff were limited to sedentary work under the Medical Vocational Guidelines and particularly Grid Rules 201.12 and 201.14, he would be found to be disabled.
This needs to go back to the administrative law judge for a proper consideration of weighing plaintiff's subjective complaints and addressing the factors set forth in SSR 16-3p. There's no reference to what he is capable of doing, for example, in terms of activities of daily living and how they would translate to the ability to work full time.
So I'm going to grant judgment on the pleadings to the plaintiff without a directed finding of disability because I don't find persuasive evidence of disability, and remand the matter to the Commissioner for further consideration. Thank you both, hope you have happy holidays.
MR. HASSELER: Thank you, your Honor, you too.
MR. PECK: Thank you, your Honor.
(Proceedings Adjourned, 2:47 p.m.)
CERTIFICATE OF OFFICIAL REPORTER
I, JODI L. HIBBARD, RMR, 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.