Opinion
Civil Action 3:20-CV-0617 (DEP)
09-29-2021
CYNTHIA L., 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. HEATHER M. LaCOUNT, ESQ.
FOR PLAINTIFF LACKMAN GORTON LAW FIRM PETER A. GORTON, ESQ.
FOR DEFENDANT SOCIAL SECURITY ADMIN. HEATHER M. LaCOUNT, 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 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.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
CYNTHIA L., Plaintiff, v.
KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
3:20-CV-617
DECISION - September 22, 2021 the HONORABLE DAVID E. PEEBLES United States Magistrate-Judge, Presiding
Eileen McDonough, RPR, CRR
Official United States Court Reporter
P.O. Box 7367
Syracuse, New York 13261
(315)234-8546
THE COURT: Let me begin by thanking counsel for excellent, as usual, presentations, and it was very informative, both the briefs and the oral arguments.
Plaintiff has commenced this proceeding pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3) to challenge a determination by the Acting Commissioner of Social Security concluding that plaintiff was not disabled at the relevant times and, therefore, is ineligible for the benefits that she sought. The background is as follows.
Plaintiff was born in February of 1974. She is currently 47 years of age. Plaintiff was 42 years old at the time of the alleged onset of disability on December 15, 2016. Plaintiff stands approximately 5-foot 2-inches in height, and has weighed at various times approximately 224 to 235 pounds.
Plaintiff has a GED. While in school she attended regular classes. She also has an EMS certification, and took some college classes aiming to be a medical assistant. That appears at page 283 of the Administrative Transcript.
Plaintiff lives in Port Crane, New York. It's unclear whether she still lives with her husband; there is an indication they were separated in March of 2017. That appears at 592 of the Administrative Transcript. She also has a son age 20, and the son's girlfriend lives with her as well as the son. The girlfriend is 19 years old.
Plaintiff is left-handed. Plaintiff drives but on a limited basis; she does not drive at night and she always has someone with her in the event that she experiences an episode.
Plaintiff stopped working in January of 2017. She worked as a volunteer bookkeeper in December of 2017 for a family friend. She also worked in April and May of 2018 part time driving a box truck and in an office setting. Plaintiff in the past has also worked as a customer service representative in the cable business, a home health aide, a gas station and grocery store cashier and customer service, a recycle center clerk, a bus driver, a school bus driver, a nursing home aide, a phlebotomist, and a tax preparer. The latter one was seasonal and some of those positions were part time, others full time.
Physically, plaintiff suffers from fibromyalgia, at least it has been diagnosed as such, although the Administrative Law Judge noted that the diagnosis was not supported by the requisite findings under the Commissioner's regulations and ruling concerning fibromyalgia. She suffers from back and hip pain, vestibular disorder with migraine headaches, which were described as cluster headaches, which she experiences two to seven times a week. She also suffers from Mal de Debarquement Syndrome, which I understand from one source is a rare and poorly understood disorder of the vestibular system that results in phantom perception of self-motion typically described as rocking, bobbing or swaying. That source indicates that the symptoms tend to be exacerbated when a patient is not moving, for example, when sleeping or standing still. The primary symptom of I'm going to call it MDD is the persistence of a sense of motion and rocking. It is noted that some MDD patients may experience fatigue, mood changes and confusion. It is also noted that imbalance is a common complaint. The plaintiff also suffers from mild carpal tunnel syndrome, obesity, high blood pressure, and hyperlipidemia.
Mentally, plaintiff experiences anxiety and depression. She has undergone regular counseling for her condition and is prescribed medication. She does not see a psychiatrist, however. She was hospitalized, according to her, for three days for depression in 2013. There are no records of that hospitalization contained in the Administrative Transcript.
Plaintiff has seen Dr. Amhed Alwan, a neurologist, since October of 2016; and Dr. Joy Burke, a neurologist, since December of 2018. Her primary care provider is Physician Assistant Thomas Jones, who she has seen at least since January 2016.
Plaintiff has been prescribed various medications including Inderal; Lexapro for her depression; Meclizine; Zebeta; Amitriptyline; Cymbalta; Topamax; Zoloft; Valium; Motrin 800 milligrams. She has also tried Imitrex and Fioricet.
In terms of activities of daily living, plaintiff can cook, do dishes, clean, shop, does some driving as indicated previously. She can shower with help getting in and out of the tub. She dresses. Her son does the laundry for her. She likes to crochet. She goes to bingo. She engages in child care. She has a one-year-old foster child. It's unclear whether that still exists and for how long it did. She reads, watches television, goes out to dinner, cares for her pets. She can swim. She attended a recreational vehicle show. Plaintiff is a former smoker, but according to the record, quit several years ago.
Procedurally, plaintiff applied for Title II and Title XVI benefits under the Act on January 11, 2017. The Commissioner notes that this was the seventh such application, and that appears to be true from 254 to 255 of the Administrative Transcript.
Plaintiff alleged an onset date of December 15, 2016, and at 283 claims disability based on vertigo, fibromyalgia, anxiety, depression and palpitations. A hearing was conducted by Administrative Law Judge Paul D. Barker, Jr. on February 22, 2019, to address plaintiff's application for benefits. On April 8, 2019, the Administrative Law Judge issued an unfavorable decision, which became a final determination of the Agency on April 7, 2020, when the Social Security Administration Appeals Council denied plaintiff's request for review. In doing so, it rejected a medical source statement from Dr. Joy Burke dated June 13, 2019, stating that it did not relate to the period at issue. That appears at page 2 of the Administrative Transcript. This action was commenced on June 3, 2020 and is timely. In his decision, ALJ Barker applied the familiar five-step sequential test for determining disability.
He first noted that plaintiff was last insured on December 31, 2020. He then concluded that while plaintiff had engaged in additional work since that date, she had not engaged in anything that would be considered substantial gainful activity, or SGA, since December 15, 2016.
At step two, the ALJ concluded that plaintiff suffers from severe impairments that impose more than minimal limitations on her ability to perform work-related functions, including vestibular disorder with migraine headaches, MDD Syndrome, anxiety disorder, and depression. And when I say MDD, it's not major depressive disorder, in this case it's Mal de Debarquement Syndrome.
In doing so, the Administrative Law Judge rejected other conditions as nothing severe enough to meet the regulations, including obesity; carpal tunnel syndrome; right cubital tunnel syndrome; high blood pressure; hyperlipidemia; and fibromyalgia, which was rejected, as I indicated previously, under SSR 12-2p. He did note, however, that he has considered the reported symptoms underlying the fibromyalgia diagnosis.
At step three, Administrative Law Judge Barker concluded that plaintiff's condition does not meet or medically equal any of the listed presumptively disabling conditions, specifically considering listings 2.07 related to vestibular impairments, 11.00 and 11.02 related to migraines, and 12.04 and 12.06 related to plaintiff's mental conditions.
The Administrative Law Judge next concluded that plaintiff retains the residual functional capacity, or RFC, notwithstanding her impairments to perform sedentary work with additional limitations both addressing her physical impairments and also her mental impairments.
With regard to the latter, the RFC provides that plaintiff can understand, remember, and carry out simple tasks but not at an assembly line rate. She must not operate motor vehicles and must never be exposed to unprotected heights or moving unprotected machinery.
Applying that residual functional capacity at step four, Administrative Law Judge Barker concluded that plaintiff is incapable of performing her past relevant work. Based on the testimony of a vocational expert, he detailed all of the positions that plaintiff previously held.
At step five, the Administrative Law Judge first concluded that if plaintiff was capable of performing a full range of sedentary work, a finding of no disability would be directed by the Medical-Vocational Guidelines, or the Grids, and specifically Grid Rules 201.28 and 201.21. Based on the testimony of the vocational expert who was presented with the hypothetical that parallelled the residual functional capacity finding, the vocational expert opined and the ALJ found that plaintiff could perform available work in the national economy, citing representative jobs, including a document addresser, a call-out operator, and a surveillance system monitor.
The Court's function in this case, as you know, is extremely limited and the standard which I apply is very deferential. In Brault versus Social Security Commissioner, 683 F.3d 443 (2012), the Second Circuit noted that it is extremely deferential, more so than the clearly erroneous standard that we as lawyers understand. In Brault the Circuit made the observation that under this standard when a fact is found by the Agency, it can be rejected only if a reasonable factfinder would have to conclude otherwise.
And, of course, the standard which I apply is that, A, correct legal principles must be applied, and B, the resulting determination must be supported by substantial evidence, defined as such relevant evidence as a reasonable mind would find sufficient to support a conclusion.
In this case, plaintiff raises several contentions. First, she challenges the refusal of the Appeals Council to consider Dr. Burke's medical source statement. Secondly, she claims that the residual functional capacity finding does not account for her limitations in work pace and attendance, and that in finding to the contrary of the medical opinions, the Administrative Law Judge substituted his lay opinion for uncontested medical opinions and improperly interpreted their medical evidence. The third point is that there was improper weight given to various medical opinions in the record, including from Dr. Burke, Dr. Alwan, Physician Assistant Jones, Dr. Jenouri, Dr. Slowik and Dr. Harding. Fourth, the plaintiff cites improper reliance on activities of daily living and work attempts. And fifth, argues that the RFC does not accommodate plaintiff's propensity to dizziness.
First addressing the Appeals Council's decision with regard to the medical source statement from Dr. Joy Burke, that statement was given on June 13, 2019, shortly after the Administrative Law Judge's decision in this case. It is new evidence. Under the regulations, and specifically 20 CFR Section 404.970(a)(5), to be considered evidence must be material and new, must relate to the period on or before the date of the Administrative Law Judge's decision, and plaintiff must show a reasonable probability that the new evidence would change the outcome. And when I give citations to the part 404, I will just note that there are parallel provisions in the section governing the Title XVI claim, but I won't give you both cites.
The Appeals Council opinion is at page 2 of the Administrative Transcript. And essentially -- not essentially, verbatim, states as follows: "You submitted medical evidence from Dr. Joy Burke dated June 13, 2019 (3 pages). The Administrative Law Judge decided your case through April 8, 2018. This additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you were disabled beginning on or before April 8, 2019." Clearly, as I think the Commissioner might concede, that is factually incorrect. It's not specifically stated in Dr. Burke's opinion what period it relates to, but it by definition must relate to the period prior to the ALJ's decision.
The larger question then is whether that error is harmless or harmful. In addressing that I focus on prong three of the relevant test, whether there is a reasonable probability that new evidence would change the outcome, and I believe the answer is no. Clearly Dr. Burke is a treating source but her opinion is a check-box form, which the Commissioner has argued is traditionally viewed as very weak evidence. There is really no discussion to support the conclusions reached by Dr. Burke, and her conclusions are consistent with those offered by Physician's Assistant Thomas Jones, which were rejected by the ALJ. The ALJ did consider Dr. Burke's records and relied on Dr. Jenouri and Dr. Harding. I find, therefore, that while there was error, it is not harmful error.
The second argument raised in connection with the Social Security Appeals Council by the plaintiff is whether there was an obligation for the Appeals Council to apply the treating source rule and explain why Dr. Burke's opinion is not being given controlling weight or explained what weight was given, if any. I had the same argument before me in Jessica W. versus Saul, 2021 WL 797069, from March of this year, 2021. In that case I acknowledged the many cases that require the Appeals Council even when it denies review to apply the treating source rule and explain why I believe those were misguided. There was no appeal in the Jessica W. case. It is unfortunate, but given the circumstances, the Commissioner limited appeals and plaintiff didn't appeal my ruling, probably for good reasons.
So I'm not sure we'll get any guidance from the Circuit on that question any time soon, but in any event, I'm going to follow Jessica W. and say, and for the reasons stated therein, the Appeals Council review does not have obligation to apply the treating source rule to after-acquired or after-submitted medical evidence from the treating source.
Turning to the weight of the medical evidence and focus, of course, on work pace and attendance. This relates, of course, to the residual functional capacity finding, or RFC, represents a finding for the range of tasks a plaintiff 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. Of course, an RFC determination is informed by consideration of all of the relevant medical and other evidence and must be supported by substantial evidence.
In this case there are two opinions given by Dr. Burke, who I believe is properly regarded as a treating source. On December 18, 2015, Dr. Burke stated, "I think she," meaning the plaintiff, "is able to return to work, sedentary job would be best, and perhaps with flexible hours or working from home ideally." That appears at 604 and I think it also appears at 822 of the Administrative Transcript.
That opinion partially supports the residual functional capacity finding. It certainly doesn't state that it is medically necessary that the plaintiff would have flexible hours and/or work from home. The more difficult question concerns, and the Administrative Law Judge discussed this on page 22 and 23, and found that it generally supports the conclusion that the plaintiff could sustain full-time employment at the sedentary exertional level.
The second opinion given by Dr. Burke, as I previously indicated, came on June 13, 2019. It appears at pages 36 and 37 of the Administrative Transcript. It is a check-box form. It contends the plaintiff would be off task more than 33 percent of the day and absent more than four days a month.
Dr. Burke, of course, is a treating source. This case is governed by the former regulations. Under those regulations the treating physician's opinion regarding the nature and severity of an impairment is entitled to considerable deference provided it is supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence. The treating source opinion is not controlling, however, if it is contrary to other substantial evidence in the record, including the opinions of other medical experts.
And, of course, where there are conflicts in the form of contradictory medical evidence, the resolution is properly entrusted to the Commissioner. Veino verses Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). Dr. Burke's opinion, of course, as I indicated, it came after the Administrative Law Judge's decision. It was not addressed, therefore, in the ALJ's decision. And I've already concluded that it is weak evidence and would likely not change the outcome in this case.
The second medical opinion of record comes from Dr. Alwan, and that is from January 2, 2019, at pages 334 and 335 of the Administrative Transcript. Again, a check-box form, finding that plaintiff would be off task more than 10 but less than 15 percent, and absent two days per month. That was discussed at page 23 of the Administrative Law Judge's decision. The opinion was given limited weight. The reasons cited were, one, the neurology records do not indicate she had any significant attention or concentration issues; two, she reported notable improvement in dizziness and migraine symptoms at her neurology visits with some medication adjustments and vestibular therapy; and third, although she reported she could not sustain part-time work, she also reported caring for a one-month-old baby. Being a check-box form, this is entitled to very little weight.
The Administrative Law Judge did recognize Dr. Alwan as a neurologist and explained the weight being given. I believe the explanation is proper and no reasonable factfinder -- I cannot say a reasonable factfinder would have to credit Dr. Alwan's opinions.
The third opinion is given by the Physician Assistant Thomas Jones from March 22, 2019. It appears at 883 and 844 of the record, check-box form. Plaintiff would be, according to Physician Assistant Jones, off task more than 33 percent of the day and absent more than four days per month. Again, check-box form, weak. It is discussed at page 23 of the Administrative Law Judge's decision. First of all, as a Physician's Assistant, Mr. Jones' opinions are not entitled to controlling weight as he is not an acceptable --under the former regulations not an acceptable medical source. The reasons cited are explained in the second full paragraph at page 23, and I'm unable to conclude that a reasonable factfinder would have to credit PA Jones' opinions.
Next opinion in the record is from Examining Physician Dr. Gilbert Jenouri from March 16, 2017. It appears at 583 through 586 of the Administrative Transcript. In his opinion Dr. Jenouri concluded that plaintiff has mild to moderate restriction with walking, standing long periods, bending and stair climbing. Also the claimant is restricted from driving and operating heavy machinery. This is consistent with the RFC finding. Dr. Jenouri's opinion is discussed at page 22 of the Administrative Transcript and given significant weight. Dr. Jenouri did not opine one way or the other on the question of off task or absence.
The next opinion of record is Dr. Amanda Slowik, an examining psychologist. It's from March, 16, 2017. It appears at 589 to 593 of the Administrative Transcript. In the medical source statement, significantly Dr. Slowik concludes that the claimant's ability to sustain an ordinary routine is moderately to markedly limited. That's at page 592. Dr. Slowik's opinion is discussed at page 23 of the Administrative Law Judge's decision. The opinion is given partial weight based on the fact that according to the ALJ, the examination and other evidence do not support more than moderate limitations in any area of medical functioning. He cites claimant's ability to attend medical appointments and therapy, perform household chores, drive at times, care for children, perform some work activity, and foster a one-month-old baby. Again, I think this is an appropriate explanation and I am not able to say that a reasonable factfinder would have to conclude otherwise.
The last opinion comes from Dr. T. Harding, a state agency consultant who did not examine the plaintiff but did review records that were available at the time. It was given on March 28, 2017 by Dr. T. Harding, and it appears at 2A and 4A of the Administrative Transcript. The mental health residual functional capacity concludes by stating, "Based on the objective evidence, the claimant retains the ability to perform the four basic demands of unskilled work on a sustained basis and disability is therefore denied." That's at page 115.
In the worksheet, which of course under the POMS is not necessarily controlling, Dr. Harding concluded that plaintiff is moderately limited in the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. That's at page 114. I believe the discussion of Dr. Harding's opinion, which appears at page 24, where he gives the opinion significant weight, is proper. I would have liked to have seen a little more fulsome discussion but, nonetheless, I believe that it generally supports and provides substantial evidence necessary to support the residual functional capacity finding.
As I reiterate, it is for the Administrative Law Judge to weigh conflicting opinions under Veino. And I also note, as the Commissioner correctly argues, the RFC doesn't exactly coincide with any one medical opinion, but that is not a basis to conclude that is erroneous, under Matt a versus Astrue, 508 Fed.Appx. 53, 56 (2d Cir. 2013.)
I don't believe that the conclusion that plaintiff cannot sustain work being on task and not absent more than one time per week is uncontradicted. If it is uncontradicted, I appreciate the Commissioner's invitation for me to explain for the Second Circuit why they're wrong; however, since the Second Circuit appears to continue to apply the overwhelmingly compelling standard, I am going to defer and decline, respectfully, the invitation by the Commissioner to educate the Circuit.
But I find that even if, even if the opinions regarding absenteeism and off task, off-task-ness, if that's a word, are uncontradicted, I find that the explanation given is overwhelmingly compelling for discounting those opinions.
So, in conclusion, I find that correct legal principles were applied, substantial evidence supports the Administrative Law Judge's decision. I will grant judgment on the pleadings to the defendant and will order dismissal of plaintiff's complaint.
Thank you both. Have a good afternoon.
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