Opinion
Civil Action 5:20-CV-0433 (DEP)
06-01-2021
LINDSAY A., Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
APPEARANCES: OF COUNSEL: FOR PLAINTIFF LACHMAN, GORTON LAW FIRM PETER A. GORTON, ESQ. FOR DEFENDANT SOCIAL SECURITY ADMIN. CANDACE LAWRENCE, ESQ.
APPEARANCES:
OF COUNSEL:
FOR PLAINTIFF
LACHMAN, GORTON LAW FIRM
PETER A. GORTON, ESQ.
FOR DEFENDANT
SOCIAL SECURITY ADMIN.
CANDACE LAWRENCE, 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 May 26, 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 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 May 26, 2021, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.
(The Court and all counsel present by telephone.)
THE COURT: I appreciate both of you and your excellent presentations and have enjoyed working with you on this case.
Plaintiff has commenced this action pursuant to 42 United States Code Section 405(g) 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 she sought.
The background is as follows: Plaintiff was born in June of 1984. She's currently 37 years of age. She was 31 years old at the alleged onset of her disability in October of 2015. And I would ask you both to mute your phones, please. Plaintiff stands five foot, four-and-a-half or five inches in height and weighs between 258 and 276 pounds, depending on the point in the record that it appears. At one point it was noted that she experienced a 75-pound weight gain. Plaintiff is married with three daughters. In January of 2019, they were ages three years, two years, and four months. She lives in Port Crane, New York. Plaintiff has a college degree, master's of psychology. She is right-handed. She has a driver's license and drives occasionally.
Plaintiff stopped working in or about October of 2015 or 2014, again, depending on where in the record you look, it seems more likely that it was 2014, and she stated that it was due to a medical issue. She suffered a subchorionic hematoma. Plaintiff's past work includes as a school attendance officer, a substitute teacher, a loan officer for a financial company, and a family services caseworker. That was her last position. She was also a server while in college. She possesses or possessed a teaching assistant license which is now expired.
Mentally plaintiff suffers from depression and anxiety in various forms including -- has been diagnosed as general anxiety disorder, panic disorder with the beginnings of agoraphobia, major depressive disorder, and social anxiety. She also experiences paranoia. There is a reported suicide attempt at age 30, that appears at page 253 of the administrative transcript, but there are no records concerning that attempt.
Plaintiff's primary physician is Dr. Shalini Bichala. She has also seen a psychologist Dr. Cheryl Scott-Richard in Oakdale Psychology since April of 2015.
In terms of medications, plaintiff has in the past been prescribed Paxil, Zoloft, trazodone, citalopram, sertraline, meloxicam, and pantoprazole for a gastric issue, although she was off medications, she testified, while nursing her baby.
In terms of activities of daily living, plaintiff is able to dress, bathe, groom, do some cooking, some cleaning, laundry, shop one time per month, care for her three daughters, and watch television. Plaintiff smokes three to four times per week.
Procedurally, plaintiff applied for Title II disability benefits on November 14, 2016, alleging an onset date of October 10, 2015. In her function report she claims disability based upon persistent depressive disorder, social anxiety disorder, panic disorder, perinatal depression, and psychotic depression. A hearing was conducted on January 31, 2019 by Administrative Law Judge Jude Mulvey to address plaintiff's application for benefits. On February 20, 2019, ALJ Mulvey issued an adverse determination which became a final determination of the agency on March 2, 2020, when the Social Security Administration Appeals Council denied plaintiff's request for review. This action was commenced on October 15 -- I'm sorry, April 15, 2020 and it is timely.
In her decision, ALJ Mulvey applied the familiar five-step sequential test for determining disability. She first noted that plaintiff was last insured on December 31, 2019.
She then proceeded to step one where she found that plaintiff had not engaged in substantial gainful activity since the alleged onset date of October 10, 2015.
At step two, she found that plaintiff suffers from severe impairments that impose more than minimal limitations on her ability to perform work-related functions including mental health issues involving anxiety and depression, as well as obesity.
At step three, ALJ Mulvey concluded that plaintiff's impairments do not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering Listings 12.04 and 12.06.
ALJ Mulvey next concluded that plaintiff retains the ability to perform a full range of medium work with exceptions, including a physical component and a mental component. Applying that residual functional capacity, plaintiff, according to ALJ Mulvey, is incapable of performing any of her past relevant work.
At step five, where the burden of proof of course shifts to the Commissioner, ALJ Mulvey noted first that if plaintiff could perform a full range of medium work, a finding of no disability would be required by the Medical-Vocational Guidelines set forth in the regulations, and specifically Rule 203.29. Relying on the testimony of a vocational expert in light of the additional physical and mental impairments noted, limitations noted in the RFC finding, the administrative law judge concluded that plaintiff is capable of performing work that is available in the national economy, representative occupations being retail stocker and linen room attendant, and thus concluded that plaintiff was not disabled or was not disabled at the relevant times.
The court's function, as you know, is to determine whether correct legal principles were applied and the resulting determination supported by substantial evidence, being defined as such relevant evidence as a reasonable mind would accept as sufficient to support a finding or conclusion. It is a highly deferential standard.
The plaintiff raises four essential arguments, some of which are interrelated.
The first relates to the consideration of the treating source opinion of Dr. Scott-Richard and subsumed within that is the contention that the ALJ arbitrarily substituted her judgment for undisputed records without an overwhelmingly convincing basis and that the residual functional capacity was crafted by the ALJ from their medical records.
The second argument is that there's no support for the distinction in the RFC finding that plaintiff can have occasional interaction with supervisors and coworkers but none with respect to the public.
The third is that because the residual functional capacity is not supported, the step five determination is also flawed.
And the fourth is that the administrative law judge should have at least considered a closed period.
Dr. Scott-Richard of course qualifies as a treating source. This case is being addressed under the regulations which applied prior to March of 2017. As a treating source, Dr. Scott-Richard's opinions were entitled to controlling weight provided that those opinions were supported by medically acceptable clinical and laboratory diagnostic techniques, and the opinions are not inconsistent with other substantial evidence.
The opinions of a treating source are not controlling if they are contrary to other substantial evidence in the record, including the opinions of other medical experts. Where there's conflicts in the form of contradictory medical evidence, the resolution is properly entrusted to the Commissioner. The ALJ, when considering a medical opinion and deciding whether controlling weight should be given to a treating source's opinion, must apply several factors which we refer to in this circuit as Burgess factors to determine whether controlling weight should be given, and if not, what, if any, weight should be assigned to the opinion of a treating source. Those are listed in 20 C.F.R. Section 404.1527. When the ALJ repudiates a treating source opinion, good reasons must be provided for the rejection. The Second Circuit of course has noted that when there is no rote consideration of Burgess factors, the court can make a searching review of the record and can determine that the treating source rule was not violated. Estrella v. Berryhill, 925 F.3d 90 from May 29, 2019.
In this case, Dr. Scott-Richard was a treating source, saw the plaintiff 31 times between 2015 when treatment began through November 13, 2018. Dr. Scott-Richard is a specialist. The doctor provided a medical source statement on December 7, 2018 that appears at 297 and 298 of the administrative transcript and it notes marked limitations in virtually every area noted except between marked and extreme in area of ability to respond appropriately to ordinary stressors in a work setting with simple tasks. It also opines that plaintiff would be off task more than 20 percent of the time and absent three or more days per month. The opinion was mentioned at page 19, although in that mention, that was during the step three analysis, she's referred to only as a psychologist and not by name. She is referred to by name as the Commissioner rightly argued later on in the opinion, including at page 21 and 22. And then her opinion is summarily given only partial weight, stating that the limitations identified are not supported by psychiatric treatment records.
I guess I would have to say there's no explicit consideration of the Burgess factors as we find in many of these decisions. I'm not sure that it is accurate to say that the treatment notes don't support the finding. The administrative law judge, when making that kind of a determination, must set forth rationale and explain it sufficiently to permit meaningful judicial review. As the plaintiff has argued, Second Circuit noted as much in Ferraro v. Saul, 806 Fed.Appx. 13, Second Circuit summary order from March 12, 2020, and Byrne v. Berryhill, 752 Fed.Appx. 96, a memorandum opinion from February 8, 2019. It is also noted in Drake v. Saul, 839 Fed.Appx. 584 from December 11, 2020.
I believe Judge Mulvey should have made a more fulsome analysis and when she said that the treatment records didn't support it, she should have put forth a more fulsome explanation. Obviously a lot of what was reported to Dr. Scott-Richard was based on plaintiff's subjective statements, but of course in a mental health case, very often those statements, as well as the interpretation of those statements, is critical. I also note that many of the treatment records that I reviewed show that plaintiff was depressed, anxious, page 248, clearly in distress, tearful, has a depressed affect, several of them. So I believe the treating source rule was violated.
The bigger issue, as plaintiff's counsel has argued, is on the issue of absenteeism and off task. Dr. Scott-Richard, the treating source, identified extreme limitations that are work preclusive. Dr. Moore, the consultative examiner who issued an opinion that appears at 256 through 262 of the administrative transcript, January 19, 2017, found that marked limitation in the ability to maintain a regular work schedule. The only opinion, other opinion to somewhat indirectly address the issue is from Dr. E. Kamin, January 26, 2017. In his worksheet, he found a moderate limitation in the ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. That appears at 96 of the administrative transcript.
Unfortunately, although the mental residual functional capacity is supposed to elaborate and describe the extent of that moderate limitation, it is not done and in fact there's no statement in the -- that I could find in the mental residual functional capacity that plaintiff is capable of performing simple work on a regular basis. So I believe that the finding that plaintiff is -- the residual functional capacity finding, which does not include any limitation related to schedule and off task, is flawed and therefore the step five determination which hinges on the residual functional capacity finding is also flawed.
So I will grant judgment on the pleadings to the plaintiff. I don't find persuasive evidence of disability, I think this is a matter that should be remanded for further consideration by this or another administrative law judge. Thank you both for excellent presentations, I hope you have a good afternoon.
MR. GORTON: Thank you, your Honor.
MS. LAWRENCE: Thank you.
(Proceedings Adjourned, 2:34 p.m.)
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.