Opinion
Civil Action 5:20-CV-637 (DEP)
09-28-2021
JOSEPH ROBERT H., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
OLINSKY LAW GROUP MARY K. McGARIGAL, ESQ. HOWARD D. OLINSKY, ESQ. SOCIAL SECURITY ADMIN. PAUL NITZE, ESQ.
OLINSKY LAW GROUP MARY K. McGARIGAL, ESQ. HOWARD D. OLINSKY, ESQ.
SOCIAL SECURITY ADMIN. PAUL NITZE, 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 heard in connection with those motions on September 22, 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
September 22, 2021100 South Clinton Street, Syracuse, New York
For the Plaintiff: (Appearance by telephone) OLINSKY LAW GROUP 250 South Clinton Street Suite 210 Syracuse, New York 13202 BY: MARY KATHERINE MCGARIGAL, 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: PAUL NITZE, 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: 11:42 a.m.)
THE COURT: Let me begin by thanking counsel for excellent and spirited discussions and briefings of this case.
Plaintiff has commenced this action to challenge an adverse determination by the Commissioner of Social Security finding that he is not disabled and therefore ineligible for the benefits which he sought. The challenge is brought pursuant to 42, United States Code, Section 405(g).
The background is as follows: Plaintiff was born in May of 1980 and is currently 41 years of age. He was 37 years old at the amended onset date identified by him as the beginning point of his disability, which was June 1, 2017. Plaintiff is five foot and nine or ten inches in height and has weighed at various times approximately 225 to 235 pounds.
Plaintiff lives in a house in Camillus, New York with his wife and four young children and two dogs. One of those children is a special needs child. There's also an indication somewhere in the record that he either has adopted or fostered a child or has been approved to do so. Plaintiff attended regular classes and is a high school graduate. He also has two years of college education. Plaintiff is right-handed and drives.
Plaintiff stopped working in May of 2017. At page 1181 of the Administrative Transcript, he states that he stopped work due to stress and pain. The plaintiff was in the United
States military from June 1998 until April 2016. He had one tour of duty in 2012 in Afghanistan and two tours in 2004 and 2005 in Iraq. He received an honorable discharge due to medical reasons. Clearly, he experienced some horrific incidents while he was in the United States military that has caused his mental condition. The plaintiff also worked in the Veterans Administration Hospital as a housekeeping aide from October 2016 until May of 2017.
Physically, plaintiff suffers from several diagnosed conditions, including degenerative arthritis of the spine; osteoarthritis of the hips bilaterally; arthritis in the knees and ankles, also bilaterally; plantar fasciitis; sleep apnea; and a right shoulder issue. He has had several surgeries, including two on his right shoulder, a right trigger finger release in 2016, and a right trigger thumb release in February 2017.
Mentally, plaintiff has been diagnosed as suffering from depression and an unspecified depressive disorder, anxiety and an anxiety disorder, attention deficit and hyperactivity disorder or ADHD, and posttraumatic stress disorder or PTSD. He has not undergone any psychiatric hospitalization. He has received ongoing counseling from the Veterans Administration.
At the VA, plaintiff has seen Dr. Elini Kosmas, primarily for his physical conditions, Dr. Adekola Alao beginning in 2015, and Dr. Katherine Cerio beginning in June of 2018 for his mental health conditions at an approximately one-time-per-month frequency. He has also seen Licensed Clinical Social Worker Bethany Joncas.
The defendant has a fairly robust daily life and is engaged in activities, including the ability to dress, groom, and shower. He can do household chores, laundry, cook, drive, travel, including taking his sons on a cruise, care for his children, including the one special needs infant, watches television, he reads, he socializes with family and friends, and can shop.
Medically, plaintiff has been prescribed over time Sertraline or Zoloft, Adderall, Effexor, he was on Gabapentin, Duloxetine or Cymbalta, Meloxicam, Lisinopril, and Zolpidem or Ambien. He states that he does not experience any side effects from his medications. Plaintiff is a smoker.
Procedurally, plaintiff applied for Title II benefits under the Social Security Act on September 12, 2017, alleging an onset date of April 28, 2016. It was later amended to June 1, 2017. The plaintiff alleged disability in his application and in his function report based on PTSD, sleep apnea, plantar fasciitis, arthritis of the knees, right shoulder impairment, arthritis of the ankles, and arthritis of the spine. A hearing was conducted by ALJ Jennifer Gale Smith on May 8, 2018, to address plaintiff's application for benefits. Judge Smith issued a decision unfavorable to the plaintiff on June 26, 2018.
The matter was subsequently remanded by the Social Security Appeals Council on August 8, 2019.
While the appointment clause issue was one that was involved in the remand, as the Commissioner argues, there were other issues. The Appeals Council found that the plaintiff did not perform an adequate B criteria analysis when addressing the listings. There was an issue regarding a question of the ability to balance and whether that would be inconsistent with the ability to stand and walk. And, also, there was an issue of uncertainty or lack of clarity with regard to the ability to perform, quote, lower level complex tasks. The remand order is at 158 to 160 of the Administrative Transcript.
On remand, the matter was assigned to a new Administrative Law Judge, Kenneth Theurer, who conducted a hearing on January 6, 2020. Administrative Law Judge Theurer issued an unfavorable decision on June 31, 2020. That became a final determination of the agency on August 6, 2020, when the Appeals Council denied plaintiff's application for a review. This action was commenced on June 8, 2020, and is timely.
In his decision, ALJ Theurer applied the familiar five-step sequential test for determining disability. He first noted that plaintiff is insured through December 31, 2022. He found at step one that plaintiff had not engaged in substantial gainful activity, or SGA, since June 1, 2017, the amended onset date.
At step two, he concluded that plaintiff suffers from severe impairments including several physical and, significantly for purposes of this proceeding, mental impairments, including PTSD, depressive disorder, anxiety disorder, and ADHD.
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. With regard to the mental component, he examined listings 12.04, 12.06, 12.11, and 12.15. The Administrative Law Judge next concluded that plaintiff has the residual functional capacity, or RFC, to perform light work with several restrictions or conditions, both physical-related and mental-related.
Significantly for purposes of this argument, he found that plaintiff can maintain attention and concentration for simple and some more complex tasks. He also found that plaintiff can regularly attend to a routine and maintain a schedule. He found that the claimant can relate to and interact with coworkers and supervisors to the extent necessary to carry out simple tasks. He stated that the claimant should have no more than occasional contact with coworkers and supervisors and no more than incidental contact with the public, which he defined further as more than never and less than occasional. He also went on to state specifically the job should not involve direct interaction with the public, but the claimant does not need to be isolated away from the public.
Applying that residual functional capacity determination at step four, Administrative Law Judge Theurer concluded that plaintiff was incapable of performing his past relevant work, which was characterized as an infantry crew member and a hospital cleaner.
At step five, ALJ Theurer first noted that if plaintiff were capable of performing a full range of light work, a finding of no disability would be directed by the Medical-Vocational Guidelines set forth in the regulations or the so-called grids, and specifically Grid Rule 202.21. Because of the erosion of the job base on which the grids are predicated and due to the limitations set forth in the RFC, ALJ Theurer consulted with a vocational expert, and based on the vocational expert's testimony, he concluded that plaintiff is capable of performing available work in the national economy, citing three representative jobs as routing clerk, power screwdriver operator, and photocopy machine operator, and therefore concluded that plaintiff was not disabled at the relevant times.
As you know, the Court's function in this case is limited and highly deferential. The Court must determine whether correct legal principles were applied and whether the result was supported by substantial evidence, defined as such relevant evidence as a reasonable mind would find sufficient to support a conclusion.
The Second Circuit in Brault v. Social Security Administration, 683 F.3d 443 from 2012, emphasized the deferential nature of the standard which the Court must apply, characterizing it as even more deferential than the clearly erroneous standard. The Circuit also noted in Brault that the substantial evidence standard means once an ALJ finds facts, they can reject those facts only if a reasonable factfinder would have to conclude otherwise.
The plaintiff in this case has raised one basic contention, that the residual functional capacity is unsupported because of the Administrative Law Judge's failure to properly weigh the available medical opinions in the record. The focus of the argument is on the opinions given by Dr. Jeanne Shapiro, an examining professional; Dr. Alao, a treating source; Dr. Katherine Cerio, another treating source; and a non-examining agency psychologist Dr. Marks.
Of course, pivotal to any finding of disability or no disability is the assessment of a residual functional capacity, which represents a finding of the range of tasks that plaintiff is capable of performing notwithstanding his 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. And of course, an RFC determination is informed by consideration of all of the relevant medical and other evidence, 20 C.F.R. Section 404.154583, in Tankisi v. Commissioner of Social Security, 521 Fed.Appx. 29 at 33 in the Second Circuit, 2013. In this case, the step five determination hinges on the residual functional capacity finding and if it is supported, then based on the vocational expert's testimony, the ultimate determination is supported by substantial evidence.
The plaintiff's challenge in this case centers upon the mental components of the residual functional capacity finding and on the four medical opinions in the record. I note that because this application was filed after March of 2017, the new regulations governing assessment of medical opinions apply, specifically 20 C.F.R. Section 404.1520(c).
Under that section, there are five factors --actually, one is a catchall -- that are relevant to the inquiry: Supportability; consistency with other evidence from medical and nonmedical sources; the relationship of the person giving the opinion to the plaintiff; the specialization of the person giving the opinion; and five, other factors. The regulations provide that the Administrative Law Judge must address the first two, supportability and consistency, and may also address the remaining three. Importantly, when there is conflicting medical evidence in the record, as is the case here, in the first instance it is for the Administrative Law Judge to weigh the competing opinions, Veino v. Barnhart, 312 F.3d 578, Second Circuit, 2002.
In this case, the first opinion at issue is from Dr. Shapiro given on October 26, 2017. It appears at 1181 through 1185 of the Administrative Transcript. The opinion of Dr. Shapiro is that the plaintiff appears to have mild to moderate limitations sustaining concentration and performing a task at a consistent pace. She finds no limitations in sustaining an ordinary routine and regular attendance at work; moderate to marked limitations regulating emotions, controlling behavior, and maintaining wellbeing; and moderate to marked limitations in interacting adequately with supervisors, coworkers, and the public. Dr. Shapiro's opinion is discussed at page 22 of ALJ Theurer's decision and is found to be partially persuasive.
The opinions concerning the difficulty in interacting with others and regulating emotions and controlling behavior and maintaining wellbeing were found not to be well supported, number one, by virtue of the observations made by Dr. Shapiro during the examination; number two, inconsistent with other evidence of record indicating that claimant was consistently pleasant, appropriate, and cooperative at appointments; and was approved to adopt two children, which is a significant fact that separates this from, perhaps, a case like plaintiff argued where being pleasant in interaction with a care provider might not necessarily be indicative of how the person would act in a workplace setting. The assessment of the ability to perform tasks at a consistent pace was found to be speculative.
The decision, I believe, adequately discusses the supportability and consistency factors. To the extent that Dr. Shapiro's limitations opined are inconsistent with the RFC, they're also inconsistent with the psychological opinion of Dr. Marks, which is -- I will say in a moment -- the Administrative Law Judge found to be persuasive. It is also inconsistent with the activities of daily living. For example, the ability to go on a cruise and eat in the ship's restaurants. It relies on plaintiff's subjective statements, and although, as I indicated, I believe that it's appropriate in a mental health case to some degree to rely on subjective statements, plaintiff's allegations of irritability are inconsistent with findings of him being pleasant and cooperative, and plaintiff admitted during the hearing at pages 85 and 86 that he avoided outbursts with healthcare providers and patients while he was working at the VA.
The Administrative Law Judge is proper in looking to objective evidence as a useful indicator of the extent of limitations, 20 C.F.R. Section 404.1529(c)(2). I do note that the residual functional capacity partially accommodated Dr. Shapiro's concerns by extremely restricting plaintiff's interactions with supervisors and coworkers, as well as the public, directing only incidental exposure to the public with no direct interaction. Applying the standard articulated in Brault, I cannot say that a reasonable factfinder would have to credit Dr. Shapiro's opinions in full to the extent they were not accommodated in the residual functional capacity finding.
The next opinion of record is from Dr. Alao given on May 15, 2018. It appears at 1295 to 1298 of the Administrative Transcript. It outlines, first, the symptoms experienced by the plaintiff and then in a checkbox form identifies certain categories and asks for an opinion. Significantly in this case, the category of interact appropriately with the general public, plaintiff is indicated to be unable to meet competitive standards in that regard.
The Administrative Law Judge discussed the opinion at page 22 and found it to be less persuasive and concluded that it was not supported by Dr. Alao's observations at plaintiff's appointments, which were generally normal. The severe social and concentration limitations were also found to be inconsistent with other evidence of record that shows that plaintiff socializes family and friends, went shopping or out to eat in public, drove, and could read for extended periods. I believe that that is a proper explanation. It considers the issues of consistency and supportability and it also, once again, is inconsistent with the opinions of Dr. Marks. Again, I cannot say, applying the deferential standard of Brault, that no reasonable factfinder could reject Dr. Alao's opinion.
Dr. Cerio issued an opinion on December 16, 2019. It appears at pages 1629 to 1632 of the Administrative Transcript. It's, again, a checkbox form. It concludes that plaintiff is not capable of meeting competitive standards in several categories, including work in coordination with and in proximity to others without being unduly distracted, complete a normal workday or workweek without interruptions from psychologically-based symptoms, accept instructions and respond appropriately to coworkers and supervisors, get along with coworkers or peers without unduly distracting and/or exhibiting behavioral extremes, and maintain socially appropriate behavior. I do note that the Second Circuit has indicated that checkbox forms constitute weak evidence at best. The opinion was discussed at page 21 of the Administrative Transcript. Administrative Law Judge Theurer had found it to be not fully supported -- not persuasive, not supported fully by treatment notes, which showed generally that plaintiff was engaged and able to respond, inconsistent with the medical evidence and severity of his symptoms; inconsistent with travel and ability to care for children, including a disabled or special needs child; and at the second hearing, plaintiff admitted that he was in a better place than before in the 2020 period.
Once again, the Administrative Law Judge's decision to reject Dr. Cerio's opinion is consistent with the opinions of Dr. Marks and, to a degree, by the opinion of Dr. Shapiro, so I believe good reasons were cited and, once again, find no error in the evaluation and rejection of portions of Dr. Alao's opinion -- I'm sorry, Dr. Cerio's opinion.
And the last is Dr. Marks. Dr. Marks gave an opinion on November 2, 2017, that relied heavily, although not exclusively, on the opinion of Dr. Shapiro. It appears at 109 to 119, Exhibit 1A. It was discussed at pages 21 and 22 of the Administrative Law Judge's decision and found to be persuasive. The mental residual functional capacity finding, which is what controls under the POMS, finds that the plaintiff retains the ability to perform simple and some detailed tasks, and when it comes to interaction states plaintiff is capable of routine interactions with coworkers and supervisors, but may benefit from an environment where precluded from intensive interaction with the public or tasks involving a high degree of stress, and this is completely consistent with the residual functional capacity finding. I do note that I agree with the Commissioner that to the extent that there might still be an issue lingering that was identified in the Appeals Council's remand as to what beyond simple work plaintiff is capable of performing, I agree with the Commissioner that any error in that regard would be harmless because the positions identified were all basically simple work with an SVP of two.
So I find that the reliance on Dr. Marks's opinion is appropriate, consistent with the RFC, and the RFC is slightly more limiting than Dr. Marks's opinions, but that is not a basis to remand. The RFC in this case is very carefully tailored and, I believe, takes into account Dr. Shapiro's and Dr. Marks's opinions.
So in conclusion, I find that correct legal principles were applied and the resulting determination is supported by substantial evidence. I will therefore grant judgment on the pleadings to the defendant and order dismissal of plaintiff's complaint.
Thank you once again and enjoy the rest of your day.
MR. NITZE: Thank you, your Honor.
MS. MCGARIGAL: Thank you, your Honor.
(Time noted: 12:11 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.
HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR Official U.S. Court Reporter