Opinion
Civil Action 5:20-CV-1238 (DEP)
01-20-2022
VICTORIA T., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
FOR PLAINTIFF MEGGESTO, CROSSETT & VALERINO, LLP, KIMBERLY A. SLIMBAUGH, ESQ. FOR DEFENDANT SOCIAL SECURITY ADMIN. MOLLY CARTER, ESQ.
FOR PLAINTIFF MEGGESTO, CROSSETT & VALERINO, LLP, KIMBERLY A. SLIMBAUGH, ESQ.
FOR DEFENDANT SOCIAL SECURITY ADMIN. MOLLY CARTER, 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), are cross-motions for judgment on the pleadings. Oral argument was heard in connection with those motions on January 19, 2022, 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.
Transcript of a Decision held during a Telephone Conference on January 19, 2022, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.
APPEARANCES
(By Telephone)
For Plaintiff: MEGGESTO, CROSSETT & VALERINO
Attorneys at Law
313 E. Willow Street, Suite 201
Syracuse, New York 13203
BY: KIMBERLY A. SLIMBAUGH, ESQ.
For Defendant: SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
J.F.K. Federal Building
Room 625
Boston, Massachusetts 02203
BY: MOLLY CARTER, ESQ.
Jodi L. Hibbard, RPR, CSR, CRR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
(315) 234-8547
JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter
(The Court and all counsel present by telephone.)
THE COURT: All right. Let me begin by thanking both counsel for excellent and spirited presentations, I have enjoyed working with you in this matter.
Plaintiff has commenced this proceeding pursuant to 42 United States Code Section 405(g) to challenge a determination by the Commissioner of Social Security finding that she was not disabled at the relevant times and therefore is ineligible to receive disability benefits.
The background is as follows: Plaintiff was born in November of 1965. She is currently 56 years of age. She was 46 years old at the alleged onset of disability on February 16, 2012. Plaintiff stands between five-foot-five and five-foot-six inches in height and has weighed at various times between 186 and 190 pounds, making her clinically obese. She graduated from high school and was in regular classes while attending school. Plaintiff lives in Chittenango, New York with her husband. She is right-handed and drives and possesses a driver's license. Work wise, plaintiff stopped work on July 10, 2012, although as I will note in a moment, she has had some work activity since that time. When she was employed full time, she worked as a baker and as a maintenance and floor cleaner person at Walmart. She has also worked in the past as a part-time horse handler and as a part-time cashier and stocker at a Dollar General. The position there ended due to a Workers' Compensation injury that she suffered on February 16, 2012. In 2018, plaintiff took a part-time teaching assistant position with the Chittenango Central School District where she works with disabled students.
Physically, plaintiff suffers from a right shoulder issue which has resulted in approximately five surgeries. She is scheduled, or was at the time of the hearing, for a release procedure and if that failed, it was indicated that she may need a complete shoulder replacement. Plaintiff testified that she undergoes trigger point injections and nerve blocks three to four times per year for her shoulder issue. She also suffers from osteoarthritis in the hands, shoulder, and jaw, a hearing loss, and a condition known as urinary cystitis which is generally described, as I understand it, as a chronic condition causing bladder pressure, bladder pain, and sometimes pelvic pain which can range from mild discomfort to severe. The plaintiff has undergone treatment for that which includes a cystoscopy and suburethral sling insertion in December of 2015, and a cystoscopy and bladder hydrodistention on February 26, 2019. She also experiences hypertension, GERD and other gastrointestinal issues, bilateral hearing issues for which she uses hearing aids, and asthma, which appears to be fairly controlled.
She has obtained treatment from TriValley Family Practice with Dr. Harry Capone who appears to be her primary, from New York Spine and Wellness she has obtained pain treatment through Family Nurse Practitioner Mara Morabito, her urologist and urosurgeon is Dr. Bashar Omarbasha. At New York Spine and Wellness she has also seen Dr. Eric Tallarico. She has obtained treatment at Upstate Orthopedics through Dr. Kevin Setter and others, and she treats at Digestive Disease Medicine of Central New York through Dr. Robert Pavelock.
In terms of activities of daily living, plaintiff is able to shower and dress with help from her husband, cook, do laundry, do some housework, shop, watches television, uses the computer, and writes. At 1054 of the administrative transcript, plaintiff's history recites that she enjoys bow hunting and gun hunting on her land. At page 656 there is an indication that she fell out of a kayak. As plaintiff's counsel notes, it's unclear whether she was operating the kayak herself.
Procedurally, plaintiff applied for Title II benefits on September 27, 2016. It was noted that a prior claim for benefits from April 8, 2016 was denied. Plaintiff requested reopening of that case. In her application, she alleged an onset date of February 16, 2012, and at page 218, alleged a host of conditions supporting her claim for disability. A hearing was conducted on September 17, 2019 by Administrative Law Judge Shawn Bozarth to address plaintiff's application. ALJ Bozarth issued an unfavorable decision on September 26, 2019. That became a final determination of the agency on August 20, 2020 when the Social Security Administration Appeals Council denied plaintiff's request for review. This action was commenced on October 8, 2020 and is timely.
In his decision, ALJ Bozarth applied the familiar five-step sequential test for determining disability, first noting that plaintiff was last insured on March 31, 2017, and therefore the focus was on a closed period of February 16, 2012 to March 31, 2017.
At step one, it was noted that plaintiff has engaged in some work activities, but that it did not rise to a substantial gainful activity status.
At step two, ALJ Bozarth concluded that plaintiff suffers from severe impairments that impose more than minimal limitations on plaintiff's ability to perform basic work activities, including asthma, degenerative joint disease of the right shoulder, interstitial cystitis, bilateral hearing loss, and osteoarthritis.
At step three, the ALJ concluded that plaintiff's conditions do not meet or medically equal any of the listed presumptively disabling conditions set forth in the regulations, specifically considering Listings 1.02 and 3.03.
ALJ Bozarth next determined that notwithstanding her conditions, plaintiff retains the residual functional capacity, or RFC, to perform light work with various exceptions, addressing, among other things and pertinent to this challenge, the ability only to occasionally reach laterally or overhead with the right upper extremity. He also included a provision addressing plaintiff's environmental issues, stating that the claimant needs to avoid concentrated exposure to respiratory irritants such as chemicals, dusts, odors, fumes, and gases, extremes of temperature and humidity, as well as poorly ventilated work areas. And lastly, again pertinent to this proceeding, it was stated that the claimant can work jobs within close proximity to bathroom facilities.
Applying that RFC, at step four, ALJ Bozarth concluded that plaintiff is incapable of performing her past relevant work due to the exertional requirements associated with that work.
At step five, ALJ Bozarth initially noted that if plaintiff could perform a full range of light work, a finding of no disability would be directed by the Medical-Vocational Guidelines set forth in the Commissioner's regulations, and specifically Rule 202.14 of those guidelines. Because of the additional limitations set forth in the RFC, the testimony of a vocational expert was elicited and based on that testimony, ALJ Bozarth concluded that plaintiff is capable of performing available work in the national economy, citing as representative positions usher, furniture rental clerk, and counter clerk, all of which fall in the light category with an SVP of 2. He therefore concluded that plaintiff was not disabled at the relevant times.
The court's function, of course, in this case is limited to determining whether correct legal principles were applied and the result is supported by substantial evidence, being defined as such relevant evidence as a reasonable mind would find adequate to support a conclusion.
In support of her challenge, plaintiff raises four basic contentions. First, she argues that the weight given to opinions authored by Kenneth Carter, the physical therapist, Dr. Elke Lorensen, the consultative examiner, and FNP Mara Morabito, a treating nurse practitioner, was improper.
Secondly, she challenges the RFC finding as not supported by substantial evidence, contending that there is no medical opinion that supports the RFC.
Third, she argues that plaintiff's RFC does not take into account all of the effects of her interstitial cystitis, including considering the number of bathroom breaks required and whether it would exceed 10 percent of being off task, which would preclude gainful employment.
And fourth, she challenges the administrative law judge's evaluation of her subjective complaints.
There are a couple of overarching principles which need to be taken into consideration first. It is plaintiff's burden to show through step four the limitations that she experiences based on her conditions, and that includes at the RFC level. The second is that we're dealing with a closed period, again, February 16, 2012 to March 31, 2017.
Plaintiff's focus in this matter is basically upon the use of the right extremity to reach and her incontinence and the number of times she would be required to go to the bathroom while working.
Addressing first the weight of medical opinions, because of the date on which plaintiff's application was filed, the former regulations control. Under those regulations, there are several factors which must be considered or should be considered when determining the weight to be assigned to a medical opinion, they're specified in 20 C.F.R. Section 404.1527, and we sometimes in this circuit refer to them as the Burgess factors. The opinions here -- and I guess the other thing that should be recalled is that under the Second Circuit's decision in Veino, it is for the ALJ in the first instance to weigh medical opinions, and the court is not permitted to simply reweigh the opinions as the court would see fit.
In this case, the first opinion at issue was given by Physical Therapist Kenneth Carter on December 4, 2015. It appears at pages 329 to 331 of the administrative transcript. In it, Mr. Carter recommends that plaintiff be limited to sedentary work, with no shoulder reaching or overhead reaching activities for the right upper extremity. It is recommended no forward or outward reaching past the zone of proximity for right upper extremity. In the summary at the end, it is indicated that overhead reaching, overhead lifting, shoulder lifting, and forward reaching values are reflective of the left upper extremity which indicate frequent in those areas, but right upper extremity lifting maximum is one pound unilaterally within the zone of proximity.
The administrative law judge analyzed that medical opinion at page 17 and found that it was entitled to little weight. The two reasons cited is that Mr. Carter is not an acceptable medical source, which clearly he is not; and second, it was based on a snapshot examination that was not able to consider claimant's longitudinal treatment course. I would say that I would hope for a little bit more explanation, particularly as to how plaintiff's treatment records are inconsistent with Mr. Carter's opinion, but I think if you read the decision as a whole, it is, the requirements are satisfied and I don't find any error in considering Mr. Carter's opinions.
The second opinion given is from Nurse Practitioner Morabito. It was given on December 12, 2016 and amended in areas that really don't affect the arguments now before the court on June 11, 2019. It appears at 1142 and 1143 of the administrative transcript, and it basically states that plaintiff should never reach above shoulder level.
The ALJ discussed Nurse Practitioner Morabito's opinion at page 17 and gave it little weight and cited four basic reasons: One, not being an acceptable source which of course is true; second, it is inconsistent with the plaintiff's own reported activities of daily living, including kayaking and bow hunting; third, does not provide a detailed rationale, which is true; and fourth, the opinion as to disability is reserved to the Commissioner. Once again, I think there was proper consideration of the nurse practitioner's opinion, and while I agree with the plaintiff that she probably has the most longitudinal knowledge of plaintiff and plaintiff's shoulder treatment of the medical opinions cited, nonetheless, the treatment of it as a whole and reviewing the decision as a whole is proper.
The third of course is from Dr. Elke Lorensen who conducted an examination of the plaintiff on November 4, 2016, which is during the relevant period. It was contained in the record in 569 through 572. Significantly, Dr. Lorensen found only moderate limitation for pushing, pulling, and reaching with the right arm. There, the administrative law judge accorded it partial weight at page 17 although, as the Commissioner's counsel has argued, the residual functional capacity is actually more restrictive in several regards than Dr. Lorensen's opinion. The reasons cited are: This opinion is based on a single examination; the source was not able to consider more recent treatment notes or impairments; and it's vague about specific limitations and not entirely consistent with more recent progress notes. In my view it's a little unclear from plaintiff's argument as to what portions of Dr. Lorensen's opinion are inconsistent with the RFC. Dr. Lorensen did note some limitation on reaching and did note some objective limitations on range of motion of above shoulder at page 517 based on her examination of the plaintiff. The moderate limitation, although I agree moderate is not always as precise as one might hope, is accommodated in the residual functional capacity and is consistent with the RFC. Kristen F. v. Commissioner of Social Security, 2021 WL 1668933, from the Northern District of New York, April 27, 2001, and Gilmore v. Commissioner of Social Security, 2016 WL 4079535, from the Northern District of New York, July 29, 2016.
In conclusion, I don't find any error in the weight given to the medical opinions in the record.
The next focus is upon the residual functional capacity finding. An RFC represents a finding of the range of tasks a plaintiff is capable of performing notwithstanding his or her impairments. It is informed by consideration over claimant's physical activities -- abilities, mental abilities, symptomology, including pain and other limitations that could interfere with work activities on a regular and continuing basis. The RFC in this case takes into consideration plaintiff's shoulder and interstitial cystitis.
When it comes to the interstitial cystitis, the issue's governed by SSR 15-1 which notes that in assessing an RFC relative to this condition, we must consider all of the person's impairments-related symptoms in deciding how much the symptoms may affect functional capacity. Urinary frequency can necessitate trips to the bathroom as often as every 10 to 15 minutes day and night. Consequently, some individuals with IC essentially may confine themselves to their homes. In this case, the issue, the condition IC was accommodated by the need for close proximity to the bathroom. The plaintiff in my view failed to establish how, during the relevant time period, her IC would preclude her from being able to work and being off task more than 10 percent of the day. The administrative law judge noted that recent treatment records during the relevant period showed that incontinence was not an issue, that's at page 16. At page 1102, Dr. Omarbasha noted that plaintiff was no longer incontinent although he did acknowledge that the issue could recur. At page 422, it was also noted, this is from February 25, 2016, that following up on her surgery and the placement of suburethral sling, plaintiff claimed that she was 100 percent continent and was happy with the outcome of her surgery.
So although I acknowledge that if there were evidence plaintiff had carried her burden of establishing that her IC is an ongoing problem and she had ongoing incontinence of a severe nature, it would be incumbent on the ALJ to analyze not only close proximity to a bathroom but frequency of bathroom use, it was not necessary in this case because plaintiff did not carry her burden.
I believe that the residual functional capacity, for the reasons cited earlier, accommodated her shoulder issue, as well as her asthma and her incontinence. It is true that, as the plaintiff has argued, there is no one medical opinion that perfectly corresponds with the RFC, but that is not necessary, so long as there is substantial evidence on which the RFC can be formulated. Tankisi v. Commissioner of Social Security, 521 Fed.Appx. 29, Second Circuit 2013. As I know the judge of this court has noted in House v. Astrue, 11-CV-915, 2013 WL 422058 from February 1, 2013, if there is sufficient evidence in the record and the administrative law judge is not playing doctor and interpreting raw medical data, a common sense residual functional capacity can be formulated. In this case, that was done and it draws considerable support not only from Dr. Lorensen's opinion but from the medical treatment records in issue. So I don't find any basis to conclude that the residual functional capacity was not supported by substantial evidence.
The last issue of course is the weighing of plaintiff's claims of symptomology. The administrative law judge applied the two-step analysis that is specified under the regulations and Social Security Ruling 16-3p. He did that at pages 15 to 18 and first noted plaintiff's complaints or claims at page 14, and then went through carefully the records associated with plaintiff's treatment of her shoulder and IC conditions. He explained his finding at page 16, summarized the reasons for his RFC finding, and concluded that greater limitations were not supported by the evidence. As the Commissioner argues, the ALJ's analysis of subjective complaints is entitled to considerable deference, and I'm not able to conclude in this case that there's any basis to disturb it. I don't find that no reasonable fact finder could conclude as the administrative law judge did, which of course under such cases as Brault is the standard that I apply.
So for those reasons, I conclude the correct legal principles were applied and the result is supported by substantial evidence. I will grant judgment on the pleadings to the defendant and order dismissal of plaintiff's complaint.
Thank you both, I hope you stay safe in these interesting and challenging times.
MS. SLIMBAUGH: Thank you, your Honor.
MS. CARTER: Thank you, your Honor.
(Proceedings Adjourned, 10:47 a.m.)
CERTIFICATE OF OFFICIAL REPORTER
I, JODI L. HIBBARD, RPR, CRR, CSR, 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.
Dated this 19th day of January, 2022.