Opinion
Civil Action 3:20-CV-0817 (DEP)
10-21-2021
SCOTT D.H., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
FOR PLAINTIFF LAW OFFICES OF KENNETH HILLER, PLLC JUSTIN M. GOLDSTEIN, ESQ. FOR DEFENDANT SOCIAL SECURITY ADMIN. TIMOTHY SEAN BOLEN, ESQ.
FOR PLAINTIFF LAW OFFICES OF KENNETH HILLER, PLLC JUSTIN M. GOLDSTEIN, ESQ.
FOR DEFENDANT SOCIAL SECURITY ADMIN. TIMOTHY SEAN BOLEN, 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), are cross-motions for judgment on the pleadings. Oral argument was heard in connection with those motions on October 13, 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
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. 3
TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES 4
(The Court and all parties present by telephone. Time noted: 2:33 p.m.)
THE COURT: Plaintiff has commenced this proceeding pursuant to 42, United States Code, Section 405(g) to challenge an adverse determination by the Commissioner of Social Security finding that he was not disabled at the relevant times and therefore ineligible for the benefits that he sought.
The background is as follows: Plaintiff was born in April of 1974. He's currently 47 years old. He was 41 years old at the alleged onset of his disability on September 25, 2015. Plaintiff lives in a two-story house in the Binghamton, New York area with his longtime girlfriend of 25 years, at least at the time of the hearing, together with one daughter and three dogs. Plaintiff has two other daughters that do not reside with him. Plaintiff stands 5'9" or 5'10" in height and has weighed at various times between 180 pounds prior to his accident and 280 pounds after. Plaintiff has an 11th grade education and secured a GED in 2016.
The evidence is equivocal as to whether he was in regular or special education classes. In the function report, he indicated regular classes, but at the hearing at page 613 he claimed that he was labelled and identified as learning disabled. He has also undergone some vocational training and was unsuccessful in attempting online college courses. Plaintiff has a driver's license and can drive. 5
Plaintiff stopped working as a result of a motor vehicle accident sustained in April of 2011, although he did try on two or three occasions between 2012 and 2015 to return to work without success. Plaintiff's work experience is somewhat limited to employment at Frito-Lay where he worked beginning in January of 1998. While there, he has worked as a packer, a kitchen worker, a tester, and a box drop worker in the factory.
The plaintiff suffers from degenerative disc disease of the lumbar area with radiculopathy, obesity, hyperlipidemia, and some throat issues. He also was involved in a motor vehicle accident, as I indicated, and sustained a left leg fracture. He also experiences diabetes. As a result of the motor vehicle accident, plaintiff suffered a back injury. The plaintiff has had, since the time of the injury, several magnetic resonance imaging testings and X-rays.
On October 20, 2011, he underwent MRI testing, which resulted in an impression as follows: Degenerative endplate changes at ¶ 1-L2, posterior disc bulges and small protrusions at ¶ 4-L5 and L5-S1, no significant spinal canal or neuroforaminal stenosis, that's at page 376.
X-rays of his lumbar area taken on December 7, 2011, revealed some degenerative disc disease of the L5-S1 and L4-L5 disc levels and indicated there also appears to be degenerative disc disease at the T12-1 and T11-T12 disc levels. The report of that X-ray is at 380 and 381 of the Administrative 6 Transcript.
On October 22, 2012, MRI testing revealed a prominent epidural lipomatosis at ¶ 5-S1. The impression given was tiny right paracentral disc protrusion at ¶ 1-L2, L4-L5 small central disc protrusion, and L5-S1 small central disc protrusion. That's at page 292.
On August 31, 2016, X-rays were again taken of plaintiff's lumbosacral spine. The impression was no significant bony abnormality. It also reflected the height of the vertical bodies and intervertebral disc spaces as relatively well maintained. The pedicles are intact. There is a transitional L5 vertical body. That's at page 403.
X-rays taken on October 7, 2017, resulted in the impression of, "normal exam." And this is page 575 of the Administrative Transcript.
Mentally, plaintiff suffers from depression and anxiety, but has not undergone any specialized treatment by a psychiatrist or psychologist, no hospitalization, and no medications.
Plaintiff's general health concerns are taken care of by UHS Medical Group and various professionals in that group. Plaintiff was also seeing Dr. Douglas Taber, a chiropractor, from January of 2013 to April of 2013, at which time he underwent multiple manipulations under anesthesia, or MUAs. He also has seen Dr. Kamlesh Desai, a back surgeon who he sees as 7 needed, and sees Dr. Desai one time per year for insurance purposes. He also has seen Nurse Practitioner Meghan Laing who works with him for general concerns, as well as the anxiety. He sees Nurse Practitioner Laing also as needed.
In terms of medications, plaintiff has been prescribed Venlafaxine or Effexor, Advil, Ibuprofen, Tylenol, and Aleve. He's had relatively conservative treatment, including physical therapy, home exercise, heat, and ice. He declined to receive injections.
His activities of daily living include the ability to shower, dress, groom, and shop. Plaintiff watches television, socializes, and tinkers with cars. Plaintiff is not a current smoker.
Procedurally, plaintiff applied for Title II benefits on July 5, 2016, alleging an onset date of September 25, 2015. It was noted that a prior application for benefits resulted in an unfavorable Administrative Law Judge decision on September 24, 2015, hence the onset date of September 25, 2015, and the current application. In support of his claim for disability benefits, plaintiff claims disability based on displacement of thoracic or lumbar intervertebral radiculopathy, anxiety, depression, and a broken leg. Administrative Law Judge Robyn Hoffman conducted a hearing on August 24, 2018, to address plaintiff's application for benefits. ALJ Hoffman issued an unfavorable decision on June 12, 2019. That became a final 8 determination of the agency on May 22, 2020, when the Social Security Administration Appeals Council denied plaintiff's application for review. This action was commenced on July 20, 2020, and is timely.
In her decision, ALJ Hoffman applied the familiar five-step test for determining disability. At step one, she concluded that plaintiff had not engaged in substantial gainful activity since September 25, 2015, through December 31, 2018, which was the date on which he was last insured.
At step two, she concluded that the plaintiff does suffer from severe impairments that impose more than minimal limitations on his ability to perform basic work activities, and specifically lumbar spine degenerative disc disease with radiculopathy.
At step three, ALJ Hoffman 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, focusing on listing 1.04. She noted in rejecting that listing that the mere presence of evidence of epidermal lipomatosis does not necessarily demonstrate nerve compression. The Administrative Law Judge next determined that plaintiff retains the residual functional capacity notwithstanding his conditions to perform less than a full range of light work, and specifically lifting/carrying up to 25 pounds occasionally, lift or carry up to 10 pounds frequently, stand or 9 walk for approximately seven hours total, and sit for up to five hours total in an eight-hour workday with normal breaks. There were other postural limitations and no mental-related limitations set forth in the RFC.
At step four, Administrative Law Judge Hoffman concluded that plaintiff could not perform his past relevant work as a warehouse worker. She therefore went on to step five.
At step five, she noted initially that if plaintiff could perform a full range of light work, a finding of no disability would be required by the Medical-Vocational Guidelines, or the so-called grids, and specifically Grid Rule 202.20. Because of the additional limitations that were found in the RFC, she concluded based on the testimony of a vocational expert that plaintiff nonetheless can perform available work in the national economy, citing three representative jobs of classifier, router, and assembler/production.
As you know, the Court's function in this case is limited and extremely deferential. I must determine whether correct legal principles were applied and the resulting determination is supported by substantial evidence, defined as such relevant evidence as a reasonable mind would find sufficient to support a conclusion. As the Second Circuit noted in Brault v. Social Security Administration Commissioner, 683 F.3d 443 from 2012, the standard is demanding, more so than the clearly erroneous standard. The Court noted in Brault that once 10 there is a finding of fact, that fact can be rejected only if a reasonable factfinder would have to conclude otherwise.
The plaintiff raises several contentions, some of which are intertwined. In his brief, he contends that improper weight was given to medical opinions in the record, and particularly the treating source opinion of Dr. Desai. Secondly, he contends that he carried his burden of establishing that his condition meets or medically equals, at step three, listing 1.04. He argues that the residual functional capacity finding is unsupported and that the Administrative Law Judge erred in evaluating his subjective complaints. Plaintiff believes there is sufficient evidence in the record to firmly establish disability and therefore seeks remand with a directed finding for purely a calculation of benefits.
In terms of medical opinions, when there are conflicting medical opinions in the record, as is the case here, in the first instance it is for the Administrative Law Judge to weigh and determine the weight to be given on those, Veino v. Barnhart, 312 F.3d 578, Second Circuit, 2002. In this case, the focus, of course, is on the physical components of plaintiff's condition. Speaking to that, Dr. Desai, plaintiff's treating orthopedic surgeon, has given multiple opinions in the case.
On September 16, 2015 -- and this is at pages 489 and 490 of the Administrative Transcript -- he notes the current diagnosis of lumbar radiculopathy and states no heavy lifting, 11 avoid repetitive bending, lifting, twisting, pushing, pulling, frequent position change. He also answers the question, is plaintiff now able to work with reasonable -- I can't read my own writing. Well, essentially continuity, and the answer stated is no. And if so -- the question is, if so, when do you think patient will be able to resume work. The answer is, "disabled." Of course, those latter two are opinions on matters reserved to the Commissioner.
On October 4, 2015, at pages 473 and 474, similarly Dr. Desai opines no heavy lifting, avoid repetitive bending, lifting, twisting, pushing, pulling, frequent position change. He also indicates that plaintiff cannot return to either his regular occupation or any occupation and that he is totally disabled. Significantly, when asked what is the patient's current treatment program, the response is, "home exercises."
On July 10, 2018, at pages 518 through 520, Dr. Desai responds in a primarily checkbox form with opinions that are basically extremely debilitating to the plaintiff. How many city blocks can your patient walk or rest without severe pain, zero. How many hours can your patient sit at one time before needing to get up, zero. How many hours or minutes can the plaintiff stand at one time before needing to sit down, zero. In an eight-hour workday, the indication was plaintiff can sit and stand/walk for less than two hours. On page 519, a statement is made, "unable to work," in response to two of the 12 questions. When asked about lifting and carrying, Dr. Desai said never for less than ten pounds. Look down, never. Turn head left or right, never. Look up, never. Hold head in static position, never. Twist, stoop, crouch, climb ladders, climb stairs, never, in contrast to the earlier two opinions. And hands: Grasp, turn, twist objects, never. Fingers: Fine manipulation, never. Arms: Reaching, overhead, never.
The Administrative Law Judge addressed these opinions at page 27 of the Administrative Transcript and gave Dr. Desai's opinions no weight. Dr. Desai is a treating source and, of course, because of when this application was filed, the former regulations, and specifically 20 C.F.R. Section 404.1527 applies. And under the former regulations, it would narrow the opinion of a treating physician regarding the nature and severity of an impairment as entitled to considerable deference provided it is supported by medically acceptable clinical and laboratory diagnostic tests and techniques, and is not inconsistent with other substantial evidence, Veino, 312 F.3d at 588. Such opinions are not controlling, however, if they are contrary to other substantial evidence in the record, including the opinions of other medical experts. If more conflicts arise in the form of contradictorily medical evidence, as I indicated earlier, the resolution is properly entrusted to the Commissioner.
The regulation does go on to say that if controlling 13 weight is not accorded to a treating source, the ALJ must apply several factors to determine the degree of weight, if any, to be assigned to the opinion, and those factors are spelled out in 20 C.F.R. Section 404.1527, and the Second Circuit will sometimes refer to those loosely as the Burgess factors. By the way, I do not agree with plaintiff's assertion, to the extent that assertion is made in the brief, that if the opinion of a treating source -- it is improper to give zero weight to the opinions of Dr. Desai. I think it is within the ALJ's realm and prerogative to give it no weight if the weight is properly explained and is supported by substantial evidence. In this --and I also agree with the Commissioner that to the extent -- and I'm not sure this is the case here, but to the extent that the Burgess factors -- the regulatory factors are not specifically all addressed per sé, if the Court makes a searching record review and determines that the treating source opinion was handled properly, then there's no need to remand, Estrella v. Berryhill, 925 F.3d 90, Second Circuit, 2019.
In this case, Dr. Desai's opinions are given on a checkbox form with little or no discussion, historically viewed as fairly weak evidence. It is extreme and although maybe standing alone, the fact that an opinion is extreme might not suffice under the cases cited by the plaintiff as a reason for rejecting the opinion. It is fair to say that it is inconsistent with not only Dr. Desai's earlier opinions, his 14 treatment notes, and his prescription of home exercise, and so I think that's a proper consideration. As I said before, opinions regarding disability is a matter reserved to the Commissioner.
The opinion is inconsistent with the interrogatory responses from Dr. Chandrasekhar and to a degree with Dr. Jenouri's findings. I think it is not improper -- I understand what plaintiff is saying, that Dr. Chandrasekhar did not examine the plaintiff, but he had available to him every one of the medical records associated with plaintiff's treatment and I think it is proper to elevate the opinion of Dr. Chandrasekhar over Dr. Desai, Netter v. Astrue, 272 Fed.Appx. 54 from the Second Circuit, 2008.
The test, as the Commissioner correctly argues, is whether the treating source opinion is well supported and not inconsistent with other substantial evidence. Here, I find that neither prong is met. It is inconsistent with the treatment notes, plaintiff's attempted work attempts, the fact that he is engaged in some sort of home exercise program, and the fact that he is receiving extremely conservative treatment consisting primarily of over-the-counter medications, and did in fact decline to undergo injections. I think those are all proper considerations. Tricarico v. Colvin, 681 Fed.Appx. 98 from the Second Circuit, 2017, and Ganoe v. Commissioner of Social Security, 2015 WL 9267442 from the Northern District of New York on November 23, 2015. 15
So I believe that when the decision is read as a whole, the treating source rule was not violated and that it was proper to give no weight to Dr. Desai's extremely limiting opinion. Dr. Jenouri examined the plaintiff and provided a medical opinion. His report is at 399 to 402 of the Administrative Transcript. He opines moderate to marked restriction in walking, standing, and sitting long periods, bending, stair climbing, lifting, and carrying. Clearly, somewhat more restrictive than the residual functional capacity finding, but less restrictive than Dr. Desai's opinions. The opinion of Dr. Jenouri is discussed at page 27 by the Administrative Law Judge and given little weight. There was no direct -- I didn't see any direct challenge in plaintiff's brief to the weight given. It's folded into the step three argument to some extent. I think the Administrative Law Judge's discussion of Dr. Jenouri's opinion could be more fulsome, but when considering the record as a whole, including the ALJ's discussion of the medical evidence which appears earlier, including at page 26, I don't find any error.
Turning to the interrogatory responses of Dr. Chandrasekhar, she gave interrogatory responses which appear at pages 564 to 572 of the Administrative Transcript. In many respects it supports the residual functional capacity finding, although the doctor in some respects found less limitation than the residual functional capacity finding and, of course, under 16 Matta, the Second Circuit's decision, there's -- it is not required that the residual functional capacity finding track any one single medical opinion. Dr. Chandrasekhar reviewed all of the available records and appeared to testify and was cross examined. The opinion was discussed at page 27 of the Administrative Law Judge's decision and given great weight. The ALJ, when faced with conflicting medical evidence, properly exercised her discretion to afford more weight to Dr. Chandrasekhar's opinions under Veino and I find no error in weighing that opinion.
Turning to the step three argument, the focus is on listing 1.04A. That listing is met or equal with evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss, and, if there is involvement of the lower back, positive straight leg raising test (sitting and supine). The listing is discussed by Administrative Law Judge Hoffman at page 25 of the transcript. The burden, of course, of establishing that his condition meets or equals any listing falls on the plaintiff and to satisfy a listing, he must meet all of the criteria. Dr. Chandrasekhar made it clear that the mere presence of a prominent epidermal lipomatosis without clinical studies and EMG or nerve root conduction studies does not alone provide evidence of nerve 17 compromise. I think it was proper to rely on that opinion. I also agree with the Commissioner that it's unclear that the straight leg raising from both sitting and seated position --I'm sorry, seated and supine positions can be met and certainly over the durational requirement necessary, so I think rejection of equivalence or equalling or meeting listing 1.04A is properly explained and supported by substantial evidence.
The next issue is whether the residual functional capacity is supported by substantial evidence. An RFC represents a range of tasks the plaintiff is capable of performing notwithstanding his impairments, and ordinarily represents the 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, of course, is informed by consideration of all relevant medical and other evidence and, to be proper, must be supported by substantial evidence. In this case, the RFC is supported by Dr. Chandrasekhar's interrogatory responses and we've already discussed why I believe the weight given to those interrogatory responses was proper. It is sufficient to provide substantial evidence to support the RFC finding.
The last issue raised is what we used to call credibility, the analysis of the plaintiff's subjective complaints. Those complaints must be taken into account, of 18 course. When examining the issue, though, an ALJ is not required to blindly accept the subjective testimony of a claimant, but instead retains the discretion to weigh the credibility of the claimant's testimony in light of the other evidence in the record, Grenier v. Astrue, 606 F.3d 46, Second Circuit, 2010.
When analyzing the subjective claims of a plaintiff, the ALJ must follow SSR 16-3p, which details factors to be considered including daily activities, the location, duration, frequency, and intensity of pain or other symptoms, and factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms; treatment other than the medication an individual receives or has received for relief for pain or other symptoms; any measures other than treatment an individual uses or has used to relieve the pain or other symptoms; and any other factors concerning an individual's functional limitations/restrictions due to pain or other symptoms.
In this case, the Administrative Law Judge applied the so-called two-step analysis to address the plaintiff's subjective claims. The analysis appears at page 26 and 27 of the Administrative Transcript. The ALJ explained her reasoning and she based it on conservative treatment, Dr. Desai's treatment notes, many of which show that he was stable and can 19 do most activities, at page 283, for example. Treatment notes also revealed little or no evidence of motor weakness. They revealed normal gait in many, if not most, instances and the ability to walk on heels and toes. She also relied on the vocational assessment from December 14, 2014 -- that appears at 497 to 500 of the Administrative Transcript -- by Jacqueline Oberman, a Senior Rehabilitation Specialist.
I agree with plaintiff's counsel that she is not an acceptable medical source, but under 20 C.F.R. Section 404.1527, subsection F, the opinion is still entitled to some consideration. In that opinion, it reports that Mr. H__ took part in a functional capacity evaluation that occurred on September 26, 2014, revealing he was able to sit for 30 minutes maximum, stand for 30 minutes maximum, walk for one mile continuously, lift 50 pounds maximum occasionally, 25 pounds maximum frequently, and 10 pounds maximum continuously. He was able to carry a maximum of 40 pounds occasionally. He had a pushing/pulling capacity of 60 pounds. He had difficulty bending at the waist, but could climb down and up one flight of stairs, kneel, crouch, crawl slowly, and reach in all directions with both arms. He was found able to work in a medium-strength category. He was restricted from pushing or pulling more than 60 pounds, balancing activities that require crouching and stooping. That provided a proper basis, as well as the other factors just mentioned, for the Administrative Law Judge to 20 reject plaintiff's claim of debilitating pain.
So I find no error in the Administrative Law Judge's analysis of plaintiff's subjective complaints. In conclusion, I find that correct legal principles were applied and substantial evidence supports the Administrative Law Judge's determination and will therefore grant judgment on the pleadings to the defendant and order dismissal of plaintiff's complaint.
Thank you both. Have a good afternoon.
MR. GOLDSTEIN: Thank you, your Honor.
MR. BOLEN: Thank you.
(Time noted: 3:08 p.m.) 21
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. 22