New v. Kijakazi ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________ MATTHEW N., Plaintiff, v. Civil Action No. 8:22-CV-0117 (DEP) KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant. __________________________ APPEARANCES: OF COUNSEL: FOR PLAINTIFF ANDERSON LAMB & ASSOCS. P.C. BRYDEN F. DOW, ESQ. P.O. Box 1624 ARTHUR P. ANDERSON, ESQ. Burlington, VT 05402-1624 FOR DEFENDANT SOCIAL SECURITY ADMIN. HUGH DUN RAPPAPORT, ESQ. OFFICE OF GENERAL COUNSEL 6401 Security Boulevard Baltimore, MD 21235 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 (“Commissioner”), pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on March 9, 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 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 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 1 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. 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. David E. Peebles U.S. Magistrate Judge Dated: March 20, 2023 Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x MATTHEW N., Plaintiff, -v- 8:22-CV-117 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x DECISION TRANSCRIPT BEFORE THE HONORABLE DAVID E. PEEBLES March 9, 2023 100 South Clinton Street, Syracuse, New York For the Plaintiff: BRYDEN F. DOW LAW OFFICE 1353 Teer Road West Rutland, Vermont 05777 BY: BRYDEN F. DOW, ESQ. For the Defendant: SOCIAL SECURITY ADMINISTRATION J.F.K. Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203 BY: HUGH RAPPAPORT, ESQ. 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 1 (The Court and all counsel present by telephone. 2 Time noted: 2:27 p.m.) 3 THE COURT: Let me express my thanks first to counsel 4 for excellent presentations. I appreciate Mr. Dow was 5 disadvantaged in his oral presentations, but I can assure you 6 that I've read the briefs carefully, I've read the -- all of the 7 medical opinions in the record, I've reviewed treatment notes, 8 including of Dr. Scovner, and feel that I am in a good position 9 to issue a decision. 10 Plaintiff has commenced this proceeding pursuant to 11 42, United States Code, Section 405(g) to challenge a denial of 12 plaintiff's application for Title II benefits. The background 13 is as follows: Plaintiff was born in January of 1984 and is 14 39 years of age. He was 24 years old at the alleged onset of 15 disability on April 20, 2008. He stands 5'8" in weight and 16 weighs approximately 142 pounds. Plaintiff did live in Benson, 17 Vermont, but apparently has crossed into New York and now 18 resides in Schroon Lake in Essex County, New York. Plaintiff 19 did not graduate high school. He dropped out after the 10th 20 grade and did not achieve a GED. 21 Plaintiff stopped working in April of 2004. 22 According to him, it was due to being harassed by a coworker. 23 While working, he was a dishwasher and in manufacturing and 24 production. 25 Plaintiff has both physical and mental impairments. 1 The focus of this hearing and plaintiff's challenge, of course, 2 is on his mental condition. 3 Physically, he has compression fractures at L2 and 4 T4-T7, a history of seizure disorder, shoulder and knee pain. 5 Mentally, plaintiff suffers from depression, which 6 has been variously diagnosed, including as a depressive disorder 7 and major depressive disorder, anxiety disorder, posttraumatic 8 stress disorder or PTSD, and substance abuse disorder. 9 Plaintiff has treated primarily with Dr. Michael Scovner who has 10 treated the plaintiff since childhood. He also has seen 11 licensed psychologist Jacquelyn Bode, MA or MED, from 12 February 3, 2014, on, as well as Licensed Clinical Social Worker 13 Trisha Meyer, who he began seeing and receiving treatment from 14 in June of 2020. 15 This case has a long and tortured procedural history, 16 and an interesting one. Plaintiff applied for Title II benefits 17 on April 3, 2012, and Title XVI benefits on April 4, 2012, 18 alleging an onset date of April 20, 1980. Plaintiff complained 19 of -- in support of his application and his adult function 20 report claims -- adult disability report, claims compression 21 fractures in back, social anxiety, and depression as a basis for 22 his disability applications. There have been two prior adverse 23 determinations by Administrative Law Judges hearing plaintiff's 24 case on June 25, 2014, and December 20, 2018, both by 25 Administrative Law Judge Thomas Merrill. The case has been 1 appealed into the District of Vermont, U.S. District Court 2 twice, and remanded one time on consent. The remands occurred 3 on April -- I'm sorry, February 8, 2018 -- 2017, and March 10, 4 2020. The matter was remanded on May 1, 2020, by the Social 5 Security Administration Appeals Council. The basis for the 6 remand is not germane to the proceeding today. As a result of 7 that remand, plaintiff's Title II and Title XVI applications 8 were consolidated. A hearing was conducted on July 14, 2021, by 9 Administrative Law Judge Tracy LaChance. A second hearing was 10 conducted by ALJ LaChance on August 18, 2021, at which 11 Dr. Sharon Kahn testified as a medical expert retained by the 12 agency. 13 On October 14, 2021, ALJ LaChance issued an 14 unfavorable decision. This proceeding was commenced on 15 February 2nd -- February 7, 2022, and is timely because the 16 determination after remand became a final decision of the agency 17 60 days after the issuance and then plaintiff had 60 days from 18 that point to commence this proceeding pursuant to 20 C.F.R. 19 Section 404.984(c) and (d), and also under Brown v. 20 Commissioner of Social Security, 2020 WL 5579836 from the 21 Eastern District of Michigan, February 24, 2020. 22 In her decision, ALJ LaChance applied the familiar 23 five-step sequential test for determining disability, although 24 was not required to go through all five of the sequential steps. 25 ALJ LaChance first noted that plaintiff's last date 1 of insured status was December 31, 2010. She noted that 2 plaintiff had not engaged in substantial gainful activity since 3 the alleged onset date of April 20, 2008. I think I misspoke 4 when I said 1980. I had juxtaposed those dates. In any event, 5 she did note that plaintiff had some work in 2019 and 2020, and 6 also earned some income working for DoorDash. 7 At step two, the Administrative Law Judge separated 8 the case into two distinct periods. She found that prior to 9 April 4, 2012, the date of application for Title XVI benefits, 10 plaintiff did suffer from severe impairments, including a 11 seizure disorder -- I have too many papers in front of me -- 12 anxiety disorder, and depressive disorder, but found that 13 plaintiff did not have an impairment or combination of 14 impairments that significantly limited or would be expected to 15 significantly limit the ability to perform basic work-related 16 activities for 12 consecutive months and, therefore, concluded 17 that plaintiff was not disabled prior to April 4, 2012. 18 Proceeding to address the period following April 4, 19 2012, ALJ LaChance concluded that plaintiff does suffer from 20 severe impairments, including status post compression fractures 21 of L2 and T4-T7, anxiety disorder, major depressive disorder, 22 posttraumatic stress disorder, and substance abuse disorder. 23 The Administrative Law Judge next considered at step 24 three whether plaintiff's conditions met or equaled at the 25 relevant times any of the listed presumptively disabling 1 conditions set forth in the Commissioner's regulations and 2 concluded that they did and that plaintiff was therefore 3 disabled effective the -- beginning April 4, 2012, and entitled 4 to the Title XVI benefits for which he applied. 5 The Court's function in this case, as the parties 6 know, is to determine whether correct legal principles were 7 applied and substantial evidence supports the ALJ's 8 determination. It's an extremely deferential standard, more 9 deferential than the clearly -- more stringent, I should say, 10 than the clearly erroneous standard that we as lawyers are 11 familiar with. Under the substantial evidence standard, the -- 12 under the substantial evidence standard, the Court must 13 determine whether there is sufficient evidence that would allow 14 a reasonable mind to accept as adequate a conclusion. The 15 standard also means that once a fact is found by an 16 Administrative Law Judge, the fact can be rejected only if a 17 reasonable factfinder would have to conclude otherwise, Brault 18 v. Social Security Administration Commissioner, 683 F.3d 443, 19 from the Second Circuit, 2012. It was also reiterated later by 20 the Second Circuit and fairly recently in Schillo v. Kijakazi, 21 31 F.4d 64, from the Second Circuit, 2022. 22 In this case, again, an unusual posture because the 23 plaintiff was found disabled as of April 4, 2012, the key period 24 in this case is April 20, 2008, the alleged onset date, to the 25 date of last insured of December 31, 2010, a daunting task some 1 12 years later to determine plaintiff's condition prior to that 2 date. The issue is exclusively focused on plaintiff's mental 3 impairments and whether they cause work preclusive limitations. 4 The focus of the mental aspect of this case is upon several 5 prior administrative determinations and medical opinions in the 6 record, including from Dr. Michael Scovner, the treating source 7 who we mentioned earlier, Jacquelyn Bode, a treating 8 psychologist, and therapist Trisha Meyer. The ALJ gave each of 9 those medical opinions little weight when they addressed the 10 period prior to the DLI. There's also the testimony of 11 Dr. Sharon Kahn, which also was given little weight as it 12 relates to that prior period, and the state agency 13 determinations by Dr. Edward Hurley and Dr. Thomas Reilly whose 14 opinions were given great weight. 15 In this case, the regulations that were in effect 16 prior to March of 2017 apply, including the treating source rule 17 under which the opinion of a treating physician regarding the 18 nature and severity of an impairment is entitled to considerable 19 deference provided that it is supported by medically acceptable 20 clinical and laboratory diagnostic techniques and is not 21 inconsistent with other substantial evidence. Treating source 22 opinions are not, however, controlling if they are contrary to 23 other substantial evidence in the record, including the opinions 24 of other medical experts, Halloran v. Barnhart, 362 F.3d 28 at 25 32, Second Circuit, 2004. Where the record concludes 1 contradictory medical evidence, the weighing of those opinions 2 and the resolution is properly entrusted to the Commissioner 3 under both Burgess v. Astrue, 537 F.3d 117, Second Circuit, 4 2008, and Veino, the cite of which I don't have at the moment, 5 but a Second Circuit decision nonetheless. 6 So in this case, as indicated, there are several 7 medical source statements in the record. Dr. Scovner, a medical 8 source, gave an opinion that is not dated, but was faxed on 9 May 2, 2014. It appears at 594 to 600 and addresses both the 10 physical and mental condition of the plaintiff. That opinion 11 states that plaintiff has no useful ability to function in three 12 areas, including complete a normal workday and workweek without 13 interruptions, interacting appropriately with the general 14 public, and using public transportation. He also opines that 15 plaintiff would be absent more than four days per month. The 16 interesting part of that statement is that the doctor is asked 17 the following: To be eligible for insurance benefits, the 18 evidence must establish that your patient's ability to work 19 full-time has been impaired prior to December 31, 2010. Is this 20 reasonable? The box is checked yes. 21 Number one, as the Commissioner points out, I'm not 22 sure that that necessarily means that plaintiff functionally is 23 disabled and unable to perform any work function prior to 24 December 31, 2010. It doesn't indicate to what degree the 25 condition must be impaired and I question whether it being 1 reasonable constitutes an opinion that, in fact, plaintiff was 2 impaired in his ability to perform work on a full-time basis 3 prior to the DLI. That opinion was given little weight, as I 4 previously indicated. 5 There's no question that, as the Commissioner 6 concedes, the Administrative Law Judge in discounting that 7 opinion did not discuss the relevant factors, the so-called 8 Burgess factors. However, as the Commissioner also notes, the 9 Court, nonetheless, can find that procedural error harmless if a 10 searching review of the record reflects that there was no 11 violation of the treating source rule, Estrella v. Berryhill, 12 925 F.3d 90, Second Circuit from 2019. 13 In this case, I find that the treating source rule 14 was not violated. As the Administrative Law Judge noted on page 15 1729, Dr. Scovner's treatment notes are completely devoid of any 16 discussion of anxiety during the relevant period. The treatment 17 notes prior to the DLI are found at 404 to 426 of the record. I 18 reviewed those notes carefully and I did not find -- I did find 19 that that is, in fact, substantiated. The only references I 20 could find to depression and anxiety predated the alleged onset 21 date. 22 At page 416, there is a mention of plaintiff being 23 there to follow-up for anxiety, that's October 6, 2006. At page 24 417, there's a notation from November 15, 2006, that plaintiff 25 also suffers from depression. On page 420, from October 5, 1 2006, it was noted plaintiff was supposed to take Citalopram, 2 but has not been taking it, and he does not take someone else's 3 Xanax as needed -- I'm sorry, does take someone else's Xanax as 4 needed, and it was noted that he was incredibly anxious. On 5 page 421, October 5, 2006, it was noted plaintiff was supposed 6 to start on an antidepressant, but he never actually did it. 7 There are no -- and there's a notation of acute anxiety from 8 June 8, 2006, on page 424. Conspicuously absent, however, are 9 any similar notations during the relevant period from onset to 10 DLI in Dr. Scovner's records. So although I think the ALJ 11 probably could have made a fuller discussion of Dr. Scovner's 12 opinion, I don't find any violation of the treating source rule. 13 Ms. Bode issued an opinion on May 12, 2014, that is 14 also similarly limiting as Dr. Scovner's, finding no useful 15 ability to function in three areas, the same three as -- I'm 16 sorry, in some areas. She is listed as an MED, a licensed 17 psychologist with a Master's. It was unclear to me whether she 18 is an acceptable medical source under 20 C.F.R. Section 19 404.1502(a). An acceptable medical source can include a 20 licensed psychologist, which includes a licensed or certified 21 psychologist at an independent practice level. According to 22 plaintiff's counsel, Ms. Bode practices in Vermont and is 23 licensed, and so I, like the Commissioner, have found or 24 assumed, for the sake of argument, that Ms. Bode does qualify as 25 a treating source. 1 Nonetheless, the ALJ properly rejected Ms. Bode's 2 opinions which found no useful ability to function in 3 maintaining regular attendance and to be punctual within 4 customary tolerances. Her opinion, by the way, is at 612 to 617 5 of the record. Ms. Bode also opines, like Dr. Scovner, that it 6 was reasonable to find that the evidence established that 7 plaintiff's ability to perform work full-time was impaired prior 8 to December 31, 2010, but I have the same problems with that 9 statement as I did with regard to Dr. Scovner's. Ms. Bode did 10 not treat the plaintiff until February of 2014, more than three 11 years after the DLI. It's unclear what evidence she relied on 12 to give her opinion as to plaintiff's condition prior to the 13 DLI. The -- both Dr. Scovner and Ms. Bode's opinions are on 14 checkbox forms with little explanation. 15 I know that plaintiff has argued that this is not a 16 sufficient reason to reject the opinions, citing Colgan v. 17 Kijakazi, 22 F.4d 353, from January 3, 2022, Second Circuit. 18 And the distinction between that case and the current case is 19 that in that case, the medical opinion from Dr. Ward given on 20 that checkbox form was adequately explained when considering the 21 abundant -- voluminous it was described as -- treatment notes 22 gathered by Dr. Ward over nearly three years of clinical 23 treatment. 24 In this case, there are no treatment records from Ms. 25 Bode that would explain her limiting opinions. And Dr. 1 Scovner's, as we previously discussed, treatment notes from the 2 relevant period are completely silent regarding plaintiff's 3 mental health conditions of depression and anxiety. So this 4 case is more akin to Schillo, a case I cited earlier from the 5 Second Circuit, which involved analogous facts. Once again, 6 although the Burgess factors were not specifically addressed 7 with regard to Ms. Bode's opinion, I don't find that the 8 treating source rule was violated. 9 With regard to Trisha Meyer, plaintiff's therapist, 10 Ms. Meyer gave an opinion dated May 19, 2021. It -- I'm sorry, 11 May 17th. It's hard to read her writing. It appears at 2799 to 12 2804. It was discussed by the Administrative Law Judge that -- 13 even though Ms. Meyer was not an acceptable medical source, and 14 for the same reasons that are cited, I believe that the 15 explanation provided for rejecting that opinion is appropriate. 16 This case does not involve an uncontested/unopposed medical 17 opinion or group of medical opinions because there are 18 countering medical opinions from Dr. Hurley and Dr. Reilly to 19 which the Administrative Law Judge gave great weight, so the 20 overwhelmingly compelling standard did not come into play in 21 this case. 22 The Administrative Law Judge explained why she 23 credited those opinions, primarily because when they reviewed 24 Dr. Scovner's notes, they were completely silent during the 25 relevant period. Also, plaintiff denied taking prescription 1 medications or prescribed medications during the period in 2 question and did not follow advice that he received in an 3 emergency room to stop smoking marijuana and to seek treatment. 4 The last opinion of record is testimony of Dr. Sharon 5 Kahn from 1787 to 1811 in the Administrative Transcript. That 6 was given little weight. As it relates to the period from 7 April 2008 to the DLI, the focus of that clearly was on 2018. I 8 found Dr. Kahn's opinion to be vague and ambiguous when it comes 9 to her opinion of whether plaintiff was disabled prior to the 10 DLI. I saw at page 1801 a reference to it as it's possible that 11 she could have met -- he could have met listings 1206 -- 1204 12 and 1206 at the time. There is also -- it appears that she was 13 saying that working backwards, he could've equaled some of the 14 listings cited prior to the DLI. I don't find that opinion to 15 be hard and fast, but in any event, the Administrative Law 16 Judge, to the extent that it could be considered as opining, 17 plaintiff suffered from those limitations prior to the DLI, but 18 they were -- the opinion was properly rejected and the 19 explanation was explained. 20 The bottom line is that the plaintiff had a burden. 21 The Title II application was disposed of at step two. It was 22 the plaintiff's burden to show a significant limitation on 23 work-related functions that could be expected to last 12 24 consecutive months or more. Plaintiff did not carry that 25 burden, so I find that the resulting determination by the 1 Commissioner is supported by substantial evidence and results 2 from the application of correct legal principles. I will 3 therefore grant judgment on the pleadings to the defendant and 4 order dismissal of plaintiff's complaint. 5 Thank you both for excellent presentations. I hope 6 you have a good afternoon. 7 MR. DOW: Okay. Thank you, your Honor. 8 MR. RAPPAPORT: Thank you, your Honor. 9 (Time noted: 2:57 p.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 CERTIFICATE OF OFFICIAL REPORTER 5 6 7 I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, 8 NYRCR, Official U.S. Court Reporter, in and for the United 9 States District Court for the Northern District of New York, DO 10 HEREBY CERTIFY that pursuant to Section 753, Title 28, United 11 States Code, that the foregoing is a true and correct transcript 12 of the stenographically reported proceedings held in the 13 above-entitled matter and that the transcript page format is in 14 conformance with the regulations of the Judicial Conference of 15 the United States. 16 17 Dated this 15th day of March, 2023. 18 19 s/ Hannah F. Cavanaugh______________________ 20 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR 21 Official U.S. Court Reporter 22 23 24 25