Opinion
Civil Action 5:21-CV-1234 (DEP)
12-29-2022
TERRIE L. H., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
FOR PLAINTIFF LAW OFFICES OF KENNETH HILLER, PLLC FOR DEFENDANT SOCIAL SECURITY ADMIN. JUSTIN GOLDSTEIN, ESQ. JUNE L. BYUN, ESQ.
APPEARANCES:
FOR PLAINTIFF LAW OFFICES OF KENNETH HILLER, PLLC
FOR DEFENDANT SOCIAL SECURITY ADMIN.
OF COUNSEL:
JUSTIN GOLDSTEIN, ESQ.
JUNE L. BYUN, 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(c)(3) are cross-motions for judgment on the pleadings.Oral argument was conducted in connection with those motions on December 19, 2022, 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 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 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 PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES
(The Court and all counsel present by telephone. Time noted: 2:30 p.m.)
THE COURT: Let me begin by thanking counsel for your excellent presentations.
The background of this case is as follows -- I should lead off by pointing out that plaintiff has commenced this action pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3) to challenge a finding by the Acting Commissioner of Social Security that she was not disabled at the relevant times and therefore ineligible for the Title XVI benefits for which she applied.
Plaintiff was born in December of 1969 and is currently 53 years of age. She was 50 at the time of the application for benefits on May 7, 2020. Plaintiff lives in a house in Hannibal, New York with her boyfriend and a daughter who, in April of 2021, was 18 years old. There is also indication of the -- in the record that at one point there was also another person residing -- I believe it was a grandson or granddaughter.
Plaintiff stands 5'4" to 5'6" in height depending on where in the record you look and has weighed between 138 and 150 pounds at various times. She has a 10th education and no GED. She was in regular classes while in school. Plaintiff possesses a driver's license.
The plaintiff stopped working in September of 2010. She claimed, at 2018 to 2019 of the Administrative Transcript, it was to raise her children. At page 44, during the hearing, she said it was due to her stress and stomach issues. The plaintiff has worked as a bartender, a cashier, and a service desk helper in a grocery store. She also told Dr. Shapiro and testified at the hearing at page 45 that she was a waitress for three weeks in 2017. According to 484 of the Administrative Transcript, she lost that job when the business closed. Plaintiff apparently has never held a full-time job.
Physically, plaintiff suffers from degenerative disc disease of the lumbar and cervical spine. She suffers from amblyopia from birth, and that is a lazy eye; GERD; hypertension; hyperlipidemia; tinnitus; trigeminal neuralgia, which affects, as I understand it, the teeth and face area; IBS, and headaches. Plaintiff was hospitalized in 2006 with IBS or colitis, and in 2019 with dehydration, high blood pressure, and some dental issues.
Mentally, plaintiff suffers from depression, anxiety, and an adjustment disorder. She has never been psychiatrically hospitalized. Plaintiff's primary physician is Dr. Michael Miller. She also sees a Nurse Practitioner Beverly Aubin. For vision, she sees Dr. Anthony Mondo. She also treats with North Country Neurology, Dr. Samah Mohiuddin, and Connext Care Fulton where she sees a therapist, LCSW Ashley Gilbert, between two and three times per month. She has also consulted with Syracuse Orthopedics or SOS, including Dr. Richard DiStefano and Physician's Assistant Thomas Vanarnam.
In terms of daily activities, plaintiff can dress, bathe, groom, cook, clean, do laundry, shop, drive. She does not take public transportation. She is able to socialize with family and friends. She enjoys crafts. She watches television, listens to music. She goes on social media. She takes care of her plants and can go to the family camp or cottage. Plaintiff is a smoker, although there's no quantification that I could see of how much and how often.
Procedurally, plaintiff applied for Title XVI Supplemental Security Income payments on May 7, 2020, alleging an onset date of June 1, 2017, which was amended to May 7, 2020, later to coincide with the filing of her application. In her function report at 218 of the Administrative Transcript, she stated that her disabling conditions include lazy eye, poor vision, back impairment, degenerative discs, teeth problems, high blood pressure, and anxiety.
On April 7, 2021, a hearing was conducted with a vocational expert by Administrative Law Judge Kenneth Theurer. The Administrative Law Judge subsequently issued an unfavorable decision on April 15, 2021. That decision became a final determination of the agency on September 28, 2021, when the Social Security Administration Appeals Council denied plaintiff's request for a review. This action was commenced on November 15, 2021, and is timely.
In his decision, ALJ Theurer applied the familiar five-step sequential test for determining disability. At step one, he concluded that plaintiff had not engaged in substantial gainful activity.
At step two, he concluded that plaintiff suffers from severe impairments that impose more than minimal limitations on her ability to perform basic work functions, including trigeminal neuralgia, degenerative disc disease of the cervical spine and lumbar spine, amblyopia, depressive disorder, and anxiety disorder.
At step three, he concluded that none of those conditions meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering listings 1.15, 2.02, 2.04, 2.07, 11.14, 12.06, and 12.04, and additionally considered plaintiff's headaches under listing 11.02 and SSR, or Social Security Ruling, 19-4p. After surveying the record, ALJ Theurer concluded that plaintiff retains the residual functional capacity, notwithstanding her conditions, to perform light work subject to additional physical and mental limitations.
Applying that RFC finding at step four, he noted that plaintiff has no past relevant work and proceeded to step five where, with the benefit of testimony from a vocational expert, the ALJ concluded that plaintiff is capable of performing available work in the national economy, notwithstanding her conditions, citing as representative positions those of laundry aide, hand packager, and housekeeper, and therefore concluded that plaintiff was not disabled at the relevant times.
As you know, the Court's function in this case is extremely limited. The standard to be applied is very deferential. The Court must determine whether substantial evidence supports the conclusion reached and correct legal principles were applied. Substantial evidence is defined as such admissible evidence as a reasonable mind would find sufficient to support a conclusion.
In this case, plaintiff has raised four basic contentions that are actually a part of the first. The plaintiff contends that the ALJ's RFC determination is not supported. The plaintiff also claims that his step two rejection of headaches -- a headache disorder as severe was erroneous. She argues that the ALJ's analysis of the medical opinions in the record is flawed. And four, she challenges the Administrative Law Judge's consideration of her subjective symptomology, what we used to call credibility, under SSR 16-3p.
Of course, the first task for an Administrative Law Judge is to determine a claimant's RFC, which represents a finding of the range of tasks she is capable of performing notwithstanding her impairments. Ordinarily, an RFC represents the 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. An RFC determination is informed by consideration of all of the relevant medical and other evidence and, of course, must be supported by substantial evidence.
In this case, there are physical and mental conditions and resulting limitations, and there are several medical opinions in the record. Physically, there are statements from Dr. Elke Lorensen and prior administrative findings of Dr. A. Saeed and Dr. Stradley. Mentally, there's an opinion from consultative examiner Dr. Jeanne Shapiro, prior administrative findings of Dr. L. Haus, and Dr. M. D'Ortona, and an opinion from Licensed Clinical Social Worker Ashley Gilbert.
When it comes to evaluation of medical opinions, this case is subject to the new regulations that apply to cases where the application for benefits was filed after March 27, 2017. Under those regulations, the Commissioner will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinions, including those from medical sources, but rather will consider whether those opinions are persuasive by primarily considering whether the opinions are supported by and consistent with the record in the case. An ALJ must articulate his or her determination as to how persuasive he or she finds all of the medical opinions and must explain how he or she considered the supportability and consistency of those opinions. There are other factors under 20 C.F.R. Section 416.920c that must be considered, although the Administrative Law Judge is not required to discuss how he or she evaluated those additional factors.
In this case, the focus of plaintiff's threshold argument is actually -- her counsel phrased it, is on the opinion of Dr. -- I'm sorry, Licensed Clinical Social Worker Ashley Gilbert, which was given on February 22, 2021. It appears at pages 719 to 721 of the Administrative Transcript. It's not terribly limiting, but it does, after recounting plaintiff's signs and symptoms to include generalized persistent anxiety and sleep disturbance, conclude that plaintiff is seriously limited, but not precluded, from the following two areas that apply to employment: Complete a normal workday and workweek without interruptions from psychologically-based symptoms and performing -- perform at a consistent pace without an unreasonable number in length of rest periods.
The therapist does not find plaintiff is unable to meet competitive standards or has no useful ability to function in any of the specified categories or subcategories of mental abilities and aptitudes needed to do unskilled work. The criteria seriously limited, but not precluded, is defined to mean the ability to function in this area is seriously limited and less than satisfactory, but not precluded, in all circumstances.
The Administrative Law Judge discussed this opinion at pages 21 and 22 of his opinion and found it to be less persuasive. The rationale given was -- was as follows: First, it noted the progress notes from Ms. Gilbert were not submitted and, additionally, her opinion is less persuasive because the findings are not supported by any treatment records, her estimate of absence of four or more days per month is speculative, and she does not provide any specific explanation for her responses other than giving checkbox answers and a brief notation that the claimant has anxiety in unfamiliar places.
Plaintiff argues that because there are no treatment notes from Therapist Gilbert in the record, the analysis is flawed and the Administrative Law Judge failed to properly develop the record by making efforts to obtain those records. Plaintiff's counsel did, at page 40, note that he had no objection to the record as presently constituted without those therapist notes and that the record was complete at page 41. One could argue that on this basis alone there's no breach of the duty to develop the record. The duty stems from -- the duty requires a complete medical history for at least one year prior to the month in which the application was filed. That is specified in 20 C.F.R. Section 416.912. The -- and in 20 C.F.R. Section 404.15.20b, the regulations provide we will consider evidence to be insufficient when it does not contain all the information we need to make our determination or decision.
There are cases that suggest that where, as here, the representative states that they're -- the record is complete, the duty to complete or to reach out and obtain additional materials has been absolved. One such case is Orts v. Astrue, 2013 WL 85071 from the Northern District of New York, January 7, 2013, District Judge Lawrence E. Kahn. He stated the following: An ALJ has taken reasonable steps when, as here -- that is to develop the record -- she asked a plaintiff's attorney at a hearing if the medical records before her were complete and the attorney answers affirmatively. Similarly, in Opal R. v. Commissioner of Social Security, 2022 WL 4485291 from the Western District of New York, September 27, 2022, finding similar.
In the abstract, perhaps one could argue that there was no further duty to develop the record. However, it is conspicuous -- in fact, the ALJ alludes to it specifically in his decision at page 22 -- that the -- all of the treatment notes from the person rendering the opinion, Ashley Gilbert, are missing from the record. The ALJ is -- was on notice from having reviewed the record that such notes exist. At page 572, from the first encounter date, February 10th -- I'm sorry, I'm going backwards -- first encounter date from May 27, 2022, which is where the beginning of the relevant period is, from May of 2020 through to May 10, 2021, there are 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 -- at least 17 notes referenced from Therapist Gilbert. The fact that the Administrative Law Judge noted that they were not submitted and obviously relied in part on the fact that treatment records did not support her conclusion, I find is error.
I also note that the Administrative Law Judge, who is an experienced Administrative Law Judge, stated that the therapist was not a -- considered an acceptable medical source and cited to the regulation which applies to cases filed -claims filed prior to March of 2017. He cites to 20 C.F.R. Section 416.927, which doesn't apply in this case. This case is governed by 20 C.F.R. Section 416.920c, which provides that when a medical source provides one or more medical opinions or prior administrative medical findings, we will consider those medical opinions or prior administrative medical findings from that medical source together using the factors listed in paragraph (c)(1) through (c)(5) of the section as appropriate. And, of course, the first of those two factors are supportability and consistency.
Admittedly, the therapist, even under the new regulations, is not an acceptable medical source as that term is defined in 20 C.F.R. Section 416.902a, but is a medical source as that is defined in 20 C.F.R. Section 416.902i. And so being a medical source, her opinion should have been analyzed under 20 C.F.R. Section 416.920c and there should've been a discussion of not only supportability, but consistency. There's absolutely no discussion of consistency in this case.
As counsel notes, the absence -- the fact that the form was a checkbox form is not necessarily fatal under Hogan v. Kijakazi, but I will say it is certainly bereft of much analysis, which could have been gleaned from the missing therapy records. The -- so I guess the question is -- I do find error in the analysis of Therapist Gilbert's medical opinion. The question is, is it harmful. That may -- it may be a close case.
As I said before, the opinion is not terribly limiting, but it is -- it is clear that the opinion regarding absences, about four days per month, is -- exceeds the limit of what the vocational expert testified to and what any vocational expert would testify to, and the seriously limited in the two categories is potentially problematic. The Court's simply not in a position to make the determination of whether this is or not -- this opinion from Ms. Gilbert, if credited, would be disabling, and so I think the case should be -- the Commissioner's decision should be vacated and the matter remanded for further consideration after proper efforts have been made to secure Therapist Gilbert's treatment records.
So I will grant judgment on the pleadings to the plaintiff, vacate the Commissioner's determination, and remand the matter to the agency without a directed finding of disability, and further proceedings consistent with this opinion.
Thank you, both. I wish you happy holidays.
MR. GOLDSTEIN: Okay. Happy holidays.
MS. BYUN: Thank you, your Honor.
(Time noted: 2:55 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