Opinion
Civil Action 3:20-CV-0545 (DEP)
09-29-2021
THOMAS R., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, [1] Defendant.
FOR PLAINTIFF LACKMAN GORTON LAW FIRM PETER A. GORTON, ESQ. FOR DEFENDANT SOCIAL SECURITY ADMIN. CHRISTOPHER L. POTTER, ESQ.
FOR PLAINTIFF LACKMAN GORTON LAW FIRM PETER A. GORTON, ESQ.
FOR DEFENDANT SOCIAL SECURITY ADMIN. CHRISTOPHER L. POTTER, 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 heard in connection with those motions on September 24, 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.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
THOMAS R., Plaintiff, v.
KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
3:20-CV-545
DECISION - September 24, 2021 the HONORABLE DAVID E. PEEBLES United States Magistrate-Judge, Presiding
THE COURT: Thank you both for excellent presentations. I've enjoyed working with you.
2
I have before me a challenge to an adverse determination by the Commissioner of Social Security brought by the plaintiff pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3). The background is as follows.
Plaintiff was born in September of 1970. He is currently 51 years of age. He was 44 years old at the alleged onset of disability in April of 2015. Plaintiff is obese. He stands between 5-foot-9 and 5-foot-11 in height and has weighed at various times approximately 330 pounds.
Plaintiff lives in Binghamton with his so-called common law wife, even though New York doesn't recognize common law marriage, of more than twenty years. Plaintiff has a twelfth grade education and attended regular classes while in school. He is right-handed and has a driver's license and does drive.
Plaintiff stopped working in March of 2014. His past work has included as a developmental aide, an investigator, working in Walmart beginning as a cart person and working his way to be a maintenance/cleaning person and ultimately a photo lab tech. His last job was as a security officer. He claimed at page 129 of the Administrative Transcript that he left that job because he had trouble with the vehicle and because of the cost of commuting.
Plaintiff suffers from a history of heart disease, including chronic atrial fibrillation, which I will call A-fib; Type 2 diabetes; hypertension; high blood pressure; asthma; obesity; sleep apnea, which he treats with a CPAP machine. He also has bouts of diarrhea and claims that he suffers from irritable bowel syndrome, although I did not find any actual diagnosis from a treating source of IBS.
Plaintiff had hernial and intestinal surgery in December 2016. He ended up spending 22 to 23 days in the hospital suffering from a sepsis infection. There are no records of that hospitalization. He had a left heart catheterization and coronary angiography in May of 2013. That appears at 391 to 392 of the Administrative Transcript. And a quadruple bypass in March of 2018. The records are at 90 to 92 of the Administrative Transcript. He also underwent cardiac catheterization in January of 2018.
Plaintiff's primary physician is Dr. Kevin Gallagher. His cardiologist has been Dr. Hisham Kashou. He has also seen family Nurse Practitioner Ashlee Fish; Nurse Practitioner Enid Nixon; Physician's Assistant Courtney Ellis; Dr. Khan, who performed the bypass surgery; Dr. Tvetenstrand, who performed the hernial surgery. And Dr. Kahn's first name is Ahmed. Plaintiff does not smoke and does not consume alcohol.
Plaintiff has been prescribed various medications over time primarily to address his diabetes and his cholesterol issue and a thyroid issue. He was also on Plavix, which is a blood thinner.
In terms of activities of daily living, plaintiff is able to shower, groom, dress, clean, do laundry, prepare meals, wash dishes. He shops with his common law wife. He is a musician; he plays piano. He writes music and creates music videos. He feeds his cats. He walks his dog two times per day, exercises. He designs computer graphics, watches television, and listens to the radio.
Procedurally, plaintiff applied for Title II and Title XVI benefits on February 29, 2016, alleging an onset date of April 22, 2015, and claiming disability based on high blood pressure, asthma, heart disease, Type 2 diabetes, low blood sugar, and IBS.
On May 25, 2018, a hearing was scheduled but was adjourned partly into the hearing to allow plaintiff to seek representation. A subsequent hearing was conducted by Administrative Law Judge Mark A. Clayton on November 7, 2018. Plaintiff appeared without representation. His request for a second adjournment was denied. There was a vocational expert who testified at that proceeding.
The Administrative Law Judge issued a decision on January 25, 2019 that was adverse to plaintiff. That became a final determination of the Agency on March 25, 2020 when the Social Security Administration Appeals Council denied his request for review. This action was commenced on May 15, 2020 and is timely. The Administrative Law Judge in his decision applied the familiar five-step sequential test for determining disability. He first noted that plaintiff's last date of insured status was September 30, 2018.
He first found at step one that plaintiff had not engaged in substantial gainful activity since April 22, 2015.
At step two, he concluded that plaintiff does suffer from severe impairments that impose more than minimal limitations on his ability to perform basic work functions, including high blood pressure, asthma, heart disease, diabetes type 2, and obesity.
At step three, the Administrative Law Judge 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 3.03, 4.00(H), 4.04, and 9.00, as well as Social Security Ruling 02-1p addressing obesity, and 14-2p addressing diabetes.
The Administrative Law Judge next concluded that plaintiff retains the residual functional capacity, or RFC, to perform sedentary work as defined. He went on to specify additional limitations, and significantly to this argument noted that the plaintiff would need to alternate positions at the workstation every thirty minutes without leaving his workstation in order to relieve discomfort. The ALJ, therefore, concluded that plaintiff was not disabled.
I note that there is a typographical error in the Administrative Law Judge's decision where he states that there are 850, 000 positions available in the addresser category, at page 20. The vocational expert testified to a number of 8, 500. But that is certainly a harmless error because there is still positions available in sufficient numbers to support the step five determination.
As you know, the Court's function in this case is limited to determining whether correct legal principles were applied and the resulting determination is supported by substantial evidence, which is defined as such relevant evidence as a reasonable mind would find sufficient to support a conclusion. As the Second Circuit noted in Brault versus Social Security Administration Commissioner, 683 F.3d 443 from 2012, this is an extremely deferential standard. It is a more stringent standard than even the clearly erroneous standard that we're all familiar with. Under that standard when a fact is found, it can be rejected only if a reasonable factfinder would have to conclude otherwise.
In this case plaintiff makes three basic contentions. First, he asserts that under the regulations in effect prior to the claims filed prior to March of 2017, the treating source rule should have been applied and Dr. Gallagher's opinion should have been given controlling weight, and specifically addresses the need to change positions at will and the fact that the plaintiff can only lift up to 9 pounds.
Second, plaintiff contends the RFC determination is unsupported and that the sit/stand limitation set forth in the RFC, meaning every thirty minutes, is arbitrary and based totally on the Administrative Law Judge's lay opinion and overlooks Dr. Gallagher's uncontradicted opinion.
Third, he challenges the weight given to Dr. Jenouri's opinion and states that a one-time examiner's opinion is not entitled to great weight. The focus, of course, is on the lifting and the changing of positions and whether plaintiff can stand for up to two hours. I note as an overarching consideration under Veino against Barnhart, 212 F.3d 578 (2d Cir. 2002), when there is conflicting medical evidence in the record, resolution of those conflicts is entrusted at least in the first instance to the Administrative Law Judge.
The first argument is the treating source argument. Dr. Kevin Gallagher on September 18, 2017 issued a one-page opinion. It appears at page 537 of the Administrative Transcript. It is primarily a check-box form. It opined that plaintiff has the ability to walk, stand, bend and sit with normal breaks during an eight-hour workday (continuous blocks of time), walking up to two hours max per day, standing up to two hours max per day, and sitting up to five to six hours max per day.
The form does ask whether the plaintiff would need to periodically alternate walking, standing, bending or sitting during the workday to relieve discomfort. The answer is yes. There is a question, "How often?" There is no checkmark there. The second question is, "Does your patient need the opportunity to do so at will throughout the workday?" And the answer is yes. It also when addressing the lifting and carrying states that plaintiff is only capable of lifting and carrying zero to 9 pounds maximum, as opposed to the 10 found in the residual functional capacity determination.
The opinion of Dr. Gallagher was discussed at page 18 of the Administrative Transcript. The Administrative Law Judge provided for some weight and explained why, including the history of A-fib requiring extensive surgery, but noted that treatment notes indicate claimant's symptoms had resolved, and it is reasonable to consider the lingering effects of plaintiff's conditions, and so did assign some weight and did provide for a change of positions every thirty minutes.
The Commissioner has correctly noted that despite what she argued in her brief, Dr. Gallagher is a treating source. He is identified in the Administrative Law Judge's decision as plaintiff's primary physician and saw the plaintiff at least four times; December 17, 2014; October 22, 2014; September 8, 2015; and July 22, 2015. I note that Dr. Gallagher's opinion is a check-box form with no explanation whatsoever, and the Second Circuit has noted that such opinions are weak evidence at best.
As the ALJ noted, the opinion is generally consistent with the RFC and is consistent with the record. It deviates from the RFC in very minor ways. In any event, any error would be harmless. The need to change positions, the opinion's not contradicted, but Dr. Jenouri did not note any need to change positions. If there is error, it is harmless. Plaintiff testified he can stand for about blocks of two hours, occasionally can sit in one hour segments. 147 to 14 9 of the Administrative Transcript.
I appreciate the invitation to educate the Second Circuit as to whether or not the overwhelmingly compelling standard still applies. I respectfully decline that invitation. The Second Circuit still appears to apply that standard to uncontradicted medical opinions that are rejected by the Administrative Law Judge. I don't find the need to decide because the standard is met in this case, based on plaintiff's testimony and Dr. Jenouri's opinion.
I also note that under the Dictionary of Occupational Titles, the two positions at issue, document preparer and addresser, both state that the work involves exerting up to 10 pounds of force occasionally, meaning up to one-third of the time, and significantly, sedentary work involves sitting most of the time but may involve walking or standing for brief periods of time. So I don't find that there is error. If there is error, it is harmless.
The Administrative Law Judge did acknowledge the worsening of plaintiff's symptoms leading up to his quadruple bypass in March of 2017, but I agree with the Commissioner that the symptoms do not appear to meet the durational requirement necessary to qualify for disability. The plaintiff has suggested that the ALJ had a duty to consider a closed period. I believe that that argument is waived. It was not presented to the Administrative Law Judge. To present it now would essentially require a fact analysis that was not performed. And while I reject the request to send it back for consideration of a closed period, based on Colling versus Barnhart, 254 Fed.Appx. 87 (2d Cir. 2007), and also Riker versus Commissioner of Social Security, my colleague Chief Magistrate Judge Baxter, reported at 2018 WL 2464446 (N.D.N.Y. June 1, 2018).
The 9 pound limitation, the RFC opines occasional lifting of 10 pounds, which is defined under regulations as very little to one-third of the time, and less than 10 pounds frequently. That's at page 15. That is consistent with the regulations and the Social Security Ruling 96-9p. Sedentary work under the regulations is defined as involving lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers and small tools. So the RFC is consistent with the attributes, lifting attributes of sedentary work.
Dr. Gallagher stated zero to 9 pounds lifting/carrying consistently as part of regular job duties, at 537. I'm not sure there is that much of a conflict there between Dr. Gallagher's opinion on lifting and the RFC. But even if there is error and it is consistent with the RFC, it is harmless.
Both the document preparer and addresser consist of lifting less than 10 pounds. Harvey versus Astrue, 2012 WL 3111744 (CD. Ill. July 30, 2012.) In that case, in Harvey, it said that those positions could be done with an 8 pound lift and carry limitation. Of course, the residual functional capacity finding is pivoted to the step four and five analysis. An RFC generally represents a range of tasks a plaintiff is capable of performing notwithstanding his or her impairments and represents the plaintiff'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 is informed by consideration of all relevant medical and other evidence, and of course must be supported by substantial evidence.
The plaintiff stated, as I indicated previously, that he can sit for up to one hour blocks. The RFC determination is more favorable to the plaintiff, and there are several cases that suggest in that situation there is no basis to remand, it would be a meaningless exercise. The RFC does not perfectly align with either Dr. Jenouri's opinion or Dr. Gallagher's opinion. Under Matt a versus Astrue, 508 Fed.Appx. 53 (2013), that's perfectly acceptable provided it's supported by substantial evidence. That the ALJ chose a more restrictive limitation based on the record as a whole, as I indicated, is not a basis to remand. Tammy B. versus Commissioner of Social Security, 382 F.Supp.3d, 184 (N.D.N.Y June 2019). I believe the RFC is supported by substantial evidence, including specifically Dr. Jenouri's opinion and Dr. Gallagher's when placed side by side.
The treatment of Dr. Jenouri, the argument is that he is obviously not a treating source. As a non-treating source, the need to articulate good reasons from the former regulations which apply to this case, because the application was made prior to March 17, 2017, does not apply. Dr. Jenouri after examining the plaintiff concluded pertinently that plaintiff is very limited to walking and standing for one hour, less than two hours; pushing, pulling, and bending for one hour, less than two hours; very limited ability to lift or carry 10 pounds occasionally.
The ALJ rejected, discussed the opinion at pages 18 to 19 and rejected the limitation of the ability to walk and stand for less than two hours, implicitly at least. That rejection is supported by consideration of both Dr. Gallagher's opinion and, more importantly, plaintiff's testimony. In any event, if there is error in that regard, it's harmless because, as I previously indicated, the DOT description of the two jobs cited indicate the positions involve mostly sitting.
So, in conclusion, I believe the residual functional capacity finding is supported by substantial evidence. The treating source rule was not violated. I find based on a searching review of the record that it was faithfully applied. Estrella versus Berryhill, 925 F.3d 90 (2d Cir. 2019).
The RFC determination being supported, I find that the step five determination at which the Commissioner bears the burden of proof is also supported. It was based on vocational expert testimony concerning the availability of jobs in the national economy that plaintiff was capable of performing, and the hypothetical presented to the vocational expert tracks the residual functional capacity determination. So I will award judgment on the pleadings the defendant and order dismissal of plaintiff's complaint.
Thank you both. Have a wonderful weekend.
CERTIFICATION
I, EILEEN MCDONOUGH, RPR, CRR, 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.
EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter