Opinion
Civil Action 5:22-CV-0462 (DEP)
07-17-2023
DAVID W., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
AMDURSKY, PELKY LAW FIRM AMY CHADWICK, ESQ. SOCIAL SECURITY ADMIN. HEETANO SHAMSOONDAR, ESQ. OFFICE OF GENERAL COUNSEL
FOR PLAINTIFF
AMDURSKY, PELKY LAW FIRM
AMY CHADWICK, ESQ.
FOR DEFENDANT
SOCIAL SECURITY ADMIN.
HEETANO SHAMSOONDAR, ESQ.
OFFICE OF GENERAL COUNSEL
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 July 13, 2023, 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 Commissioners 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 Commissioners 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.
DECISION TRANSCRIPT BEFORE THE HONORABLE DAVID E. PEEBLES
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 counsel present by video: Time noted: 11:31 a.m.)
THE COURT: All right. Let me begin by thanking counsel for excellent presentations. I've enjoyed working with you and found this case to be fascinating.
I have before me a challenge by plaintiff to 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 for which he applied.
The background is as follows: Plaintiff's date of birth is August of 1972. He is currently 50 years old. He was 46 years old at the time of his application for benefits on March 26, 2019. He stands 5'6" in height and weighed at various times between 240 and 266 pounds. Plaintiff lives in Oswego with his mother and he has previously lived in Fulton. Plaintiff has a girlfriend who lives nearby. Plaintiff has an 8th grade education and, while in school, was placed in special education. He testified that he can read and write, but he has comprehension issues. Plaintiff is learning to drive. His girlfriend is teaching him, or was, at the time of the hearing.
Plaintiff stopped working in September of 2006. From 2000 to 2006, he worked as a laborer at a car wash. In the past, he has also cut hair and worked briefly in sales at a RadioShack outlet.
Mentally, plaintiff suffers from major depressive disorder, anxiety disorder, posttraumatic stress disorder, or PTSD, schizoaffective disorder, personality disorder, a learning disability, intellectual disability, claustrophobia, and substance and cannabis use and abuse. Plaintiff suffers at various times from audio and visual delusions and hallucinations.
Plaintiff has at least one prior suicide attempt, although, at page 1240 of the Administrative Transcript, there's a reference to as many as four efforts to commit suicide by cutting his wrists. Plaintiff has, in the past, expressed some suicidal ideation, mostly described as passive, although many, if not most, of the treatment records that I reviewed show no suicidal or homicidal ideation.
Physically, plaintiff suffers from obesity, also vasovagal syncope, which I understand is a condition that leads to fainting. It's usually not harmful and not a sign of a more serious problem. It has to do with the nerves that connect the heart and blood vessels. The plaintiff also suffers from neck pain, lumbago, hypertension, hyperlipidemia, and in September of 2019, he fractured his fourth metacarpal bone.
Plaintiff has received services from Oswego Hospital Behavioral Services for over 25 years. He sees Physician's Assistant Amy McCune and LMSW Rhonda O'Connor bi-weekly, although, there were other therapists that came before Ms. O'Connor. Plaintiff has been hospitalized three times. The latest was in February of 2019.
In terms of activities of daily living, plaintiff is able to dress, bathe, groom, cook, clean, do laundry, he shops every two weeks, he can use public transportation, he watches television, listens to the radio, he mixes music, he plays card and board games, he cares for their pet cat, he attends church, and states that he gets along with family and friends. Plaintiff smokes marijuana twice daily, which he claims helps with panic attacks, PTSD, and hallucinations. He is a former cigarette smoker, but does not currently, at least at the time of the hearing, smoke cigarettes.
Procedurally, plaintiff applied for Title XVI Supplemental Security Income benefits on March 26, 2019, alleging an original onset date of September 30, 2006. That, of course, was amended to the date of his application. I note that there was, apparently, a prior application filed by the plaintiff on December 18, 2014. That was denied at the Administrative Law Judge level on December 14, 2016.
In support of his Title XVI application, plaintiff claimed to be disabled due to PTSD, anxiety, bipolar disorder, and high blood pressure. That is at 336 of the Administrative Transcript. A hearing was conducted on April 6, 2021, by Administrative Law Judge, or ALJ, Jennifer Gale Smith. A vocational expert, as well as the plaintiff, testified at that hearing.
On April 14, 2021, ALJ Smith issued an adverse determination, finding that plaintiff was not disabled at the relevant times. That became a final determination of the agency on March 22, 2022, when the Social Security Administration Appeals Council denied plaintiff's request for a review of that finding. This action was commenced on May 5, 2020, and is timely.
In her decision, ALJ Smith applied the familiar five-step sequential test for determining disability. At step one, she noted that plaintiff had not engaged in substantial gainful activity since the date of his application.
At step two, she concluded that plaintiff does suffer from severe impairments that impose more than minimal limitations on his ability to perform basic work functions, including vasovagal syncope, obesity, major depressive disorder, anxiety disorder, posttraumatic stress disorder, schizoaffective disorder, personality disorder, learning disability, intellectual disability, and history of substance abuse and cannabis abuse.
Proceeding to step three, the Administrative Law Judge concluded that plaintiff's conditions do not meet or medically equal any of the listed presumptively disabling conditions considering listing 11.02, as well as the various listings in part 12. In making that finding, the Administrative Law Judge went through the psychiatric review technique, examined the so-called B criteria of the listings, and concluded that plaintiff has moderate limitations in all four of the relevant domains and no extreme or marked limitations.
The Administrative Law Judge then analyzed the record, including the medical opinions contained in the record, as well as considering plaintiff's subjective reports of symptomology. At step 4 -- well, I take that back. She then concluded that plaintiff retains the residual functional capacity to perform light work with a physical limitation, which is not relevant to our discussion, as well as significant limitations on the mental capacity of the plaintiff, noting that claimant should work at simple, routine, and repetitive tasks. Claimant should work in a low stress job defined as occasional decisionmaking, occasional judgment required, and occasional changes in the work setting. Claimant should work at goal oriented work rather than production pace rate work. Claimant should have occasional contact with coworkers, supervisors, and the public. The claimant should work at a job with a language GED of one. The claimant should have no more than occasional concentrated exposure to respiratory irritants such as dust, odors, smoke, fumes, and gases.
Applying that residual functional capacity at step four, ALJ Smith concluded that plaintiff did not have any past relevant work to consider and proceeded to step five where, with the benefit of a vocational expert's testimony, she concluded that plaintiff is capable of performing available work in the national economy, citing as representative positions those of garment sorter, laundry worker, and sorter (agricultural produce) and, therefore, concluded that plaintiff was not disabled at the relevant times.
As you know, the Court's function at this juncture 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 person would conclude sufficient to support a fact. The Second Circuit Court of Appeals has observed the deferential nature of this standard in Brault v. Social Security Administration Commissioner, 683 F.3d 443 from the Second Circuit, 2012, more recently affirmed, or reaffirmed, in Schillo v. Kijakazi, 31 F.4d 64 from April 6, 2022. In those decisions, the Second Circuit noted that it is an extremely deferential standard, even more so than the clearly erroneous standard that lawyers are familiar with. In Brault, the Court observed that the substantial evidence standard means once an ALJ finds a fact, it can be rejected only if a reasonable factfinder would have to conclude otherwise.
In this matter, plaintiff raises several contentions, some of which are intertwined. He challenges the Administrative Law Judge's listings analysis under part B of the relevant listings and concludes that he has either extreme or marked limitations in the domains of concentration, persistence, and pace and adapting and managing oneself. He also contends that the Administrative Law Judge, when reviewing the records to support her conclusion, essentially cherry picked and recounted an inaccurate and incomplete recitation of the mental health records. He also challenges the weight provided to the various medical opinions in the record and argues that it was improper to elevate the opinions of the state administrative determiners and the examining consultative doctor, Dr. Shapiro, over plaintiff's therapist.
She also -- he also challenges the evaluation of plaintiff's symptoms and concludes that the residual functional capacity finding is flawed and that the Administrative Law Judge should have accepted therapist O'Connor's opinion, particularly in the areas of being off task and being absent from work.
I'll make two observations before I analyze the Court's thinking.
First, it is plaintiff's burden through step four to prove disability and, of course, at step five, we know that the burden shifts to the Commissioner.
Second, this is an extremely limiting residual functional capacity finding, particularly from a mental health point of view, and the focus of plaintiff's challenge is on the mental aspects of the RFC finding.
Turning first to the listings argument, the psychiatric review technique under the listings examines four domains, which include the understanding, remembering, or applying information; interacting with others; concentration, persistence, and maintaining pace; and adapting or managing oneself. Under the B criteria, there must either be an extreme limitation in one of those four areas or marked limitations in two of those areas.
The definitions of extreme limitation is the inability to function independently, appropriately, or effectively, and on a sustained basis. Marked limitation is defined under those regulations as being seriously limited in the ability to function independently, appropriately, or effectively, and on a sustained basis in the particular domain. In this case, the Administrative Law Judge outlined her findings regarding the B criteria at pages 14 and 15 of the Administrative Transcript, finding moderate limitation in all four. In arriving at that conclusion, she relied on treatment provider notes, the consultative examination report of Dr. Shapiro, plaintiff's fairly robust activities of daily living, and his function report.
The finding is clearly supported by the state administrative determination of Dr. E. Kamin on July 1, 2019. At page 103 of the Administrative Transcript, Dr. Kamin concludes that plaintiff has moderate limitations in understanding, remembering, and applying information and in concentration, persistence, and pace, and mild limitations in interacting with others and adapting or managing oneself. That finding was affirmed later by Dr. G. Brown on October 2, 2019. That appears at page 1133 of the Administrative Transcript. So there is -- there is evidence to support the listing determination of the Administrative Law Judge.
The Court -- I'll note in passing that the Administrative Law Judge found that subsection A of 12.04 was not met and that the C criteria of the various listings were not met and plaintiff has not challenged those findings, and any such challenge would now be waived.
In essence, plaintiff is asking the Court to reweigh the evidence in his favor, something that is improper. I have reviewed carefully the evidence cited by the Administrative Law Judge and find that the determination is supported by substantial evidence and plaintiff cannot show that a reasonable factfinder would have had to reach an opposite conclusion.
The next challenge concerns the evaluation of mental health treatment records. After reviewing the records, the Administrative Law Judge found that despite numerous diagnoses, the claimant's mental status examinations had been, for the most part, within normal limits, though his mood is, at times, anxious or depressed. She also noted that to the extent that the claimant has reported hallucinations, he has reported that they're not threatening. This finding was at page 17 of the Administrative Transcript.
The Administrative Law Judge has somewhat of a cursory discussion of the relevant records. The treatment records, which I have reviewed carefully, appear at Exhibits 1F, 2F, 3F, 5F, 12F, 16F, 18F, 19F, 21F, and 23F. Many show, indeed, normal exams. In many cases, hallucinations and delusions are denied. In others, while they are mentioned, they are listed as non-threatening. For the most part, suicidal ideation is denied, although there were a couple references to passive suicidal ideation. There are a few outliers, but for the most part, those records support the determination. I've reviewed them carefully and many, many, many of the findings noted in the exhibits that I just mentioned show normal exams, denial of delusions and hallucinations and paranoia. He was advised to quit marijuana on November 2, 2016. That's at page 445. There are indications of hallucinations and delusions, but nothing that plaintiff can't handle, I think was the one reference that I saw.
So I don't find any error in the Administrative Law Judge's reliance upon the mental health treatment records and that what the plaintiff is seeking is to have the Court reweigh the evidence, which is something that I'm not prepared to do. I find that substantial evidence supports the residual functional capacity and mental health component and am unable to say that no reasonable factfinder could reach the RFC of the Administrative Law Judge based upon the treatment notes.
The next argument centers upon the treatment of medical opinion evidence in the record. Because the application for benefits was filed after March of 2017, the case is governed by the amended regulations which took effect for applications filed after that date. Under those regulations, an ALJ does not defer or give any specific evidentiary weight, including controlling weight, to any medical opinions or prior administrative medical findings, including those from a treating medical source. Instead, the ALJ must consider the opinions using the relevant factors specified, particularly considering and articulating in the decision how supportability and consistency of those opinions is found. The ALJ is also permitted, but not required, to explain how he or she considered the other relevant factors, which include the source's relationship with the claimant, specialization of the source, if any, and other factors tending to support or contradict the medical opinion.
In this case, I've discussed already Dr. Kamin's opinion from July 1, 2019. It's at page 97 to 109 of the record. It was affirmed by Dr. Brown at 14F. The Administrative Law Judge found it to be persuasive, but found greater limitations than those determined by Dr. Kamin. That's at page 19. The discussion of Dr. Kamin's opinion could have been somewhat more fulsome, but I believe it adequately addresses the two required conditions of supportability and consistency.
Dr. Shapiro prepared a report based upon her examination of the plaintiff on June 24, 2019. It appears at 984 to 988 of the Administrative Transcript. The medical source statement finds no limitations in certain areas, mild to moderate limitations in understanding, remembering, or applying complex directions and instructions, mild to moderate limitations using reasoning and judgment to make work-related decisions, mild to moderate limitations in interacting adequately with supervisors, coworkers, and the public, mild to moderate limitations sustaining concentration and performing a task at a consistent pace, no limitations on sustaining an ordinary routine and regular attendance at work, moderate limitation regulating emotions, no limitations maintaining personal hygiene and wearing appropriate attire, no limitations being aware of normal hazards and taking appropriate precautions, fully supportive of the residual functional capacity determination and consistent with both the treatment notes that were reviewed and Dr. Kamin's opinion.
In my view, the request now of the plaintiff is simply asking that the Court reweigh the evidence differently, something that I'm not inclined to do, nor should I under Veino v. Barnhart, 312 F.3d 578 from the Second Circuit, December 10, 2002. The RFC is even more limiting like it was with regard to Dr. Kamin. It's also more limiting than Dr. Shapiro's opinion.
Therapist O'Connor gave an opinion on March 10, 2020.
It appears at pages 1174 to 1179 of the Administrative Transcript. It is extremely limiting. It finds extreme limitation in several areas, including completing a normal workday and workweek without interruptions from psychologically-based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods, and an extreme limitation is noted in other areas, as well. That's defined as not able to function in this area independently, appropriately, effectively and on a sustained basis. This represents a degree of limitation not compatible with any gainful activity. There are also four findings of marked limitation, which is defined that functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited. It is clearly inconsistent with the residual functional capacity determination.
Therapist O'Connor also opined that plaintiff is likely to be absent from work five days or more and off task more than 30 percent of the workday. The Administrative Law Judge examined that opinion on page 19 of the transcript. It's noted that it is a checkbox opinion form, and although I know from the Second Circuit's decision in Hogan that that is not in and of itself alone a basis to reject the opinion, it is still a consideration if it does not include an explanation that would correlate the limitations to plaintiff's condition.
The Administrative Law Judge found it to be inconsistent with even therapist O'Connor's findings, the faithful attendance at therapy, the desire to attend group sessions, and inconsistent with the opinions of Doctors Shapiro, Kamin, and Brown. I don't find any error in the evaluation of therapist O'Connor's opinion.
The last issue raised essentially concerns the examination and evaluation of plaintiff's subjective reports of symptomology. It is well known that that examination is made pursuant to the guidelines set out in Social Security Ruling, or SSR, 16-3p and the evaluation is two-step.
In the first step, Administrative Law Judge Smith found that plaintiff's conditions could reasonably be expected to result in the limitations claimed by the plaintiff, but found that the plaintiff's claims were not fully supported. And in doing that, he looked at the relevant factors, including daily activities; location, duration, frequency, and intensity of pain or other symptoms; factors that precipitate or aggravate the claimant's symptoms; type, dosage, effectiveness, and side effects of medication; treatment other than medication used to relieve the symptoms; and other measures to obtain relief of symptoms; and any other factors. Although, when it is read as a whole, there are various explanations given. The summary of what the Administrative Law Judge found is at the bottom of page 19 and the top of page 20, and there's also explanation on 18, which observes what plaintiff's activities of daily living are and the conclusion of the Administrative Law Judge that they do not support the allegations of the plaintiff regarding intensity, persistence, and limiting effect of his conditions. Plaintiff has a very broad array of activities of daily living that don't support his claims of extreme limitations.
I don't find any error in the evaluation of plaintiff's subjective symptomology and I don't conclude that a reasonable factfinder would have to conclude otherwise.
The last argument is really derivative of the prior claims, the claim being that at step five, the residual functional capacity -- there should have been a finding of disability if the residual functional capacity had been more closely aligned with therapist O'Connor's opinion.
So in summary, I find that correct legal principles were applied and the resulting determination is supported by substantial evidence. I'll grant judgment to the defendant and order dismissal of plaintiff's complaint.
Thank you, both, for excellent presentations. I hope you enjoy the rest of your summer.
MS. CHADWICK: Thank you. You, too, your Honor.
MR. SHAMSOONDAR: Thank you, your Honor. You, as well.
(Time noted: 12:01 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 JUDGE