Reed v. Saul ( 2019 )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________ KATHARINE R., Plaintiff, v. Civil Action No. 3:18-CV-1194 (DEP) ANDREW SAUL, Commissioner of Social Security,1 Defendant. __________________________ APPEARANCES: OF COUNSEL: FOR PLAINTIFF LACHMAN, GORTON LAW FIRM PETER A. GORTON, ESQ. P.O. Box 89 1500 East Main Street Endicott, NY 13761-0089 FOR DEFENDANT HON. GRANT C. JAQUITH ANDREEA LECHLEITNER, ESQ. United States Attorney Special Assistant U.S. Attorney P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198 1 Plaintiff=s complaint named Nancy A. Berryhill, as the Acting Commissioner of Social Security, as the defendant. On June 4, 2019, Andrew Saul took office as Social Security Commissioner. He has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See 42 U.S.C. ' 405(g). DAVID E. PEEBLES U.S. MAGISTRATE JUDGE ORDER 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, pursuant to 42 U.S.C. §' 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.2 Oral argument was heard in connection with those motions on August 27, 2019, 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. After due deliberation, and based upon the court=s oral bench decision, which has been transcribed, is attached to this order, and is 2 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. 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. U.S. Magistrate Judge Dated: August 29, 2019 Syracuse, NY 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF NEW YORK 3 4 KATHARINE R., ) ) 5 Plaintiff, ) CASE NO. 3:18-CV-1194 ) 6 vs. ) ) 7 ANDREW SAUL, COMMISSIONER OF ) SOCIAL SECURITY, ) 8 ) Defendant. ) 9 ) 10 11 TRANSCRIPT OF DECISION BEFORE THE HON. DAVID E. PEEBLES 12 TUESDAY, AUGUST 27, 2019 SYRACUSE, NEW YORK 13 14 FOR THE PLAINTIFF: (by telephone) Lachman, Gorton Law Firm 15 By: Peter A. Gorton, Esq. 1500 East Main Street 16 Endicott, New York 13760 17 18 FOR THE DEFENDANT: (by telephone) Social Security Administration 19 By: Andreea L. Lechleitner, SAUSA 26 Federal Plaza, Room 3904 20 New York, New York 10278 21 22 23 24 THERESA J. CASAL, RPR, CRR, CSR Federal Official Court Reporter 25 445 Broadway, Room 509 1 THE COURT: All right. Thank you both for 2 excellent presentations. I found this to be a very 3 interesting case. 4 I have before me a request for judicial review of 5 an adverse determination by the Commissioner of Social 6 Security pursuant to 42 United States Code Sections 405(g) 7 and 1383(c)(3). The background is as follows: 8 The plaintiff was born in September of 1993 and is 9 currently 25 years of age, almost 26. She was 8 years old 10 at the alleged date of onset of her disability in September 11 of 2001. Plaintiff stands 5 foot 5 inches in height and has 12 weighed between 155 pounds, at 245 of the administrative 13 transcript, and 178 pounds at 473 of the administrative 14 transcript. Plaintiff lives in Johnson City where she rents 15 a house with her partner. 16 Plaintiff has a high school diploma -- well, it's 17 a Regents diploma, but she did undergo some special 18 education during the time that she was in high school. 19 She's been described in the record, including at 818, in 20 Exhibit 1E, as "academically successful." Plaintiff did 21 attend one semester of school at Broome Community College. 22 There was an incident that occurred during that semester 23 which resulted in her being taken into custody and to CPEP 24 and she was physically removed from campus. That's 25 described at 350 of the administrative transcript. 1 Plaintiff is right-handed. She has a permit but 2 does not drive. Plaintiff has no significant work history. 3 She has volunteered at a cat shelter, although that shelter 4 apparently closed; that's at 33 and 424 of the 5 administrative transcript. She also has volunteered in a 6 flood relief setting, that's at page 41 and 477, and there 7 is reference in the administrative transcript to plaintiff 8 searching for work, that's at 323 and 337 of the 9 administrative transcript. 10 Plaintiff suffers from both medical and some 11 physical impairments. Mentally, she suffers from an 12 impairment -- or multiple impairments that have been 13 variously diagnosed over time, including Asperger's 14 Syndrome, major depressive disorder, Post-Traumatic Stress 15 Disorder, borderline personality disorder and unspecified 16 schizophrenia or other psychotic disorder, bipolar disorder, 17 mood disorder, anxiety disorder. She has suffered from time 18 to time of suicidal ideations, threats of self-harm, poor 19 hygiene and reported hallucinations. 20 She was taken to CPEP, as was previously 21 indicated, when she was at Broome College -- Broome 22 Community College, and it's unclear, but it looks like that 23 may have been in 2012. She was taken to CPEP in April of 24 2014, that's at 331. She was taken to the emergency room in 25 December of 2015 for a cut on her leg, the emergency room in 1 April of 2014 and the emergency room in March of 2014. 2 The plaintiff has undergone treatment at Family 3 and Children's Society, including from Dr. Robert Webster. 4 Medically, in terms of her mental condition, she has been 5 prescribed Quetiapine for her mood and psychosis; 6 Sertraline, which is generic Zoloft, for depression and 7 anxiety; Hydrozine, for anxiety and sleep disorder; and 8 Abilify. She also was on Seroquel. 9 Physically, plaintiff is obese. She suffered from 10 various head trauma, including an injury in January of 2017 11 as a result of a domestic abuse incident. She suffers from 12 concussion and headaches, dizziness, blurred vision and 13 photosensitivity. She has been -- undergone treatment from 14 Dr. Misty Ondrusek and Dr. Ahmed Alwan. She has been 15 prescribed Topamax for headaches. She did undergo EMG 16 testing in January of 2018, the results of which were 17 normal; that's at 1045 and 1046 of the administrative 18 transcript. 19 With regard to her mental condition, I omitted 20 that she also apparently has treated with Dr. Michael 21 Bennett and LCSW Kimberly Catalano (phonetic) and LCSW 22 Jeanne Wescott. 23 In terms of activities of daily living, it's 24 variously reported at 233 to 236, 1078 and 934 that 25 plaintiff cooks and prepares meals; she walks 1.3 miles as 1 referenced at 323, 5 miles at 239; she socializes with 2 friends; she enjoys computer games, she cares for cats, 3 cleans, does laundry, shovels, draws, likes music, watches 4 Netflix movies, likes astronomy, sells art, administers an 5 internet art group, she enjoys gardening and cares for beta 6 fish. 7 Procedurally, this case has had an interesting and 8 somewhat extensive history. Plaintiff applied for SSI, or 9 Supplemental Security Income, benefits in February of 2013, 10 alleging an onset date of September 6, 2001. On August 18, 11 2014, an Administrative Law Judge, Marie Greener, held a 12 hearing and subsequently a supplemental hearing with a 13 vocational expert on May 13, 2015. ALJ Greener issued an 14 unfavorable decision on June 3, 2015, finding that plaintiff 15 was not disabled at relevant times. After plaintiff 16 challenged that determination in this court, the matter was 17 remanded on stipulation of the parties on March 10, 2017. 18 The Social Security Administration Appeals Counsel 19 subsequently remanded the matter to an ALJ with instructions 20 on July 19, 2017. 21 On June 19, 2018, ALJ John P. Ramos conducted a 22 hearing with a medical expert who had previously answered 23 interrogatories, Dr. Kahn, and a vocational expert that was 24 assigned to him after ALJ Greener retired. ALJ Ramos issued 25 an unfavorable decision on July 26, 2018, again finding that 1 plaintiff is not disabled at relevant times. 2 In his decision, ALJ Ramos applied the familiar 3 five-step sequential test for determining disability. He 4 concluded, at step one, that plaintiff had not engaged in 5 substantial gainful activity since the date of her 6 application of February 7, 2013. 7 He concluded, at step two, that plaintiff suffered 8 from severe impairments that impose more than minimal 9 limitations on her ability to perform basic work activities, 10 including residuals of status post-concussion syndrome; 11 obesity; Asperger's Syndrome; a major depressive disorder; a 12 psychotic disorder NOS, or not otherwise specified; a 13 bipolar disorder, most recent episode manic; a mood disorder 14 NOS; an anxiety disorder NOS; Post-Traumatic Stress 15 Disorder; a borderline personality disorder; and a 16 (inaudible) personality disorder. 17 ALJ Ramos concluded, however, at step three that 18 plaintiff's conditions did not meet or medically equal any 19 of the listed presumptively disabling conditions set forth 20 in the Commissioner's regulations, specifically considering 21 listings 12.02, 12.03, 12.04, 12.06, 12.08, 12.10 and 12.15, 22 relying heavily on both Dr. Sharon Kahn's interrogatory 23 responses and Dr. E. Kamin's findings, the Agency 24 psychologist, non-examining. 25 At step four -- I'm sorry, before proceeding to 1 step four, ALJ Ramos surveyed the record and concluded that 2 plaintiff does retain the Residual Functional Capacity, or 3 RFC, to perform light work, but concluded, from a physical 4 standpoint, plaintiff should not be exposed to bright 5 outdoor sunlight. Mentally, he imposed several limitations, 6 including, but not limited to, she should have no more than 7 occasional brief interaction with the public; she can handle 8 reasonable levels of simple work-related stress, in that she 9 can make decisions directly related to the performance of 10 simple work and handle usual workplace changes and 11 interactions associated with simple work; she should work in 12 a position where she is not responsible for the work of 13 others and with little change in daily routine or work 14 duties or processes. At step four, applying that Residual 15 Functional Capacity, plaintiff -- ALJ Ramos noted that 16 plaintiff did not have any past relevant work. 17 At step five, with the benefit of testimony from a 18 vocational expert, he concluded that plaintiff is capable of 19 performing as a cleaner, a mail sorter and routing clerk and 20 that there were jobs in sufficient numbers in the national 21 economy in those positions. He did note that if there were 22 no non-exertional limitations and plaintiff could perform a 23 full range of light work under the medical vocational 24 guidelines, or the grids, grid rule 202.20, finding no 25 disability. 1 As you know, my function is limited to determining 2 whether correct legal principles were applied and the 3 determination is supported by substantial evidence, which is 4 defined as such evidence as a reasonable person could find 5 sufficient to support a factual determination. It is an 6 extremely deferential but not nonexistent standard. 7 The first argument concerns Dr. Kahn. Dr. Kahn 8 rendered opinions in responses to interrogatories and 9 testified to her conclusions at pages 520 to 541 of the 10 administrative transcript. She concluded that plaintiff 11 does have moderate limitation in responding appropriately to 12 usual work settings and changes to routine work settings at 13 807. The qualifications of Dr. Kahn were set forth in her 14 CV or resume at 821-825. She has been, among other things, 15 a medical expert for the Social Security Administration 16 since 2011. 17 I have reviewed carefully the questioning of 18 Dr. Kahn, I've reviewed carefully the decision that was 19 cited in support of the bias argument, Weston versus Colvin, 20 2017 WL 4230502, Judge Teleska's decision from the Western 21 District of New York. I did find that certainly there 22 was -- the questioning of Dr. Kahn was somewhat rocky when 23 she was being cross-examined by Mr. Gorton, but I didn't 24 find any evidence of bias. I also found that her opinions 25 are not inconsistent with the RFC and that the RFC is not 1 inconsistent with nor is Dr. Kahn's opinion inconsistent 2 with the ability to perform unskilled work. Zabala versus 3 Astrue, 595 Fed 3d 402, a Second Circuit decision from 2010, 4 suggests that moderate limitation in work-related 5 functioning does not preclude the ability to perform 6 unskilled work. Similar decision resulted in Sipe versus 7 Astrue, 873 Fed Supp 2d 471, a decision from this Court in 8 2012. And I note that this portion of Dr. Kahn's opinion 9 was accounted for in the Residual Functional Capacity, which 10 limited the plaintiff to work involving little change in 11 daily routine and work duties or processes. 12 The argument that plaintiff has made about 13 Dr. Kahn not being allowed to consider other evidence, I 14 have reviewed carefully the other evidence that is 15 related -- that is involved, 25F and 26F, specifically. It 16 was noted at page 522 that those documents were not timely 17 submitted under the rules and regulations associated with 18 the hearings, but I show at 25F, for example, I reviewed 19 carefully, it appears that those treatment notes show that 20 plaintiff's condition was stable, that she was responding 21 well to medications and doesn't appear to be at odds with 22 the RFC and, therefore, does not require remand. Similarly, 23 26F, there is an observation that plaintiff doesn't 24 necessarily do well with crowds. That's been accommodated 25 in the RFC as well, requiring limited contact. 1 In terms of noise, under the Dictionary of 2 Occupational Titles, none of the three jobs specified 3 require significant exposure to loud noises, specifically 4 the mail sorter and routing clerk is defined as a quiet 5 position. The router and routing clerk is also defined as 6 quiet. Cleaner is defined as having a moderate noise level. 7 So that under Camille, the case cited by the Commissioner, I 8 don't find that the failure to permit Dr. Kahn to consider 9 those exhibits requires remand. 10 I also note that the RFC finding, even if Dr. Kahn 11 is discounted, is supported by Dr. Long, which -- whose 12 opinions can provide substantial evidence, and Dr. Kamin. I 13 also note that the activities of daily living, which were 14 fairly robust, support the Administrative Law Judge's RFC. 15 The end result is the treatment notes show that 16 plaintiff has improved with medication and counseling. 17 There is clearly conflicting medical evidence in the record, 18 including from the treating source, Dr. Webster, but in the 19 end, it is for the Administrative Law Judge to resolve those 20 inconsistencies under Veino versus Barnhart. 21 There was also a treating source argument. 22 Obviously, the opinions of Dr. Webster and LCSW Wescott were 23 very contrary to and almost diametrically opposed to 24 Dr. Kahn, Dr. Long and Dr. Kamin, but -- and certainly in 25 mental health conditions, a treating perspective is 1 important under Flynn, but not dispositive necessarily. 2 The reasons for discounting Dr. Wescott's -- 3 Dr. Webster, I'm sorry, Dr. Webster's opinions are explained 4 by ALJ Ramos at 502 and 503. Dr. Kahn testified why her 5 opinions were inconsistent with the medical -- why 6 Dr. Webster's opinions were inconsistent with the medical 7 evidence and plaintiff's activities of daily living. 8 ALJ Ramos's discussion of that could perhaps have been more 9 fulsome, but I find that it is sufficient to permit 10 meaningful judicial review. It is very inconsistent with -- 11 Dr. Webster's opinions in the medical source statement are 12 inconsistent with his treatment notes and the showing that 13 plaintiff was benefitting from treatment and medications. 14 In terms of vision, there was an argument made 15 that the RFC did not account for plaintiff's post-concussion 16 status and that there was no finding of step two that should 17 have been made. But the Residual Functional Capacity 18 finding restricts plaintiff's exposure to bright sunlight. 19 Plaintiff, obviously, has the burden of establishing that 20 limitation under Poupore and did not demonstrate that it 21 imposes more than a minimal limitation on her ability to 22 perform basic work functions. 23 At step five, I find that the hypothetical posed 24 by the Administrative Law Judge to the vocational expert is 25 supported by substantial evidence and, therefore, the 1 vocational expert's testimony supports the finding of no 2 disability. 3 Reviewing this record, I or another impartial 4 person could reach a contrary result, but the bottom line is 5 the question is: Is it supported by substantial evidence 6 and could no reasonable fact finder conclude as the 7 Administrative Law Judge, and I am unable to make that 8 determination. 9 So I will grant judgment on the pleadings to the 10 defendant and dismiss plaintiff's complaint. 11 Again, thank you both for excellent presentations. 12 I hope you enjoy the rest of your summer. Bye-bye. 13 MS. LECHLEITNER: Thank you, your Honor. 14 MR. GORTON: Thank you, your Honor. 15 (This matter adjourned at 12:08 PM.) 16 - - - - - 17 18 19 20 21 22 23 24 25 1 CERTIFICATION OF OFFICIAL REPORTER 2 3 4 I, THERESA J. CASAL, RPR, CRR, CSR, Official 5 Realtime Court Reporter, in and for the United States 6 District Court for the Northern District of New York, do 7 hereby certify that pursuant to Section 753, Title 28, 8 United States Code, that the foregoing is a true and correct 9 transcript of the stenographically reported proceedings held 10 in the above-entitled matter and that the transcript page 11 format is in conformance with the regulations of the 12 Judicial Conference of the United States. 13 14 Dated this 28th day of August, 2019. 15 16 /s/ THERESA J. CASAL 17 THERESA J. CASAL, RPR, CRR, CSR 18 FEDERAL OFFICIAL COURT REPORTER 19 20 21 22 23 24 25