Pithang v. Kijakazi ( 2023 )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ DINGMAN P., Plaintiff, v. 5:22-CV-0203 (ML) COMMISSIONER OF SOCIAL SECURITY, Defendant. ________________________________________ APPEARANCES: OF COUNSEL: LEGAL AID SOCIETY OF MID-NEW YORK, INC. ELIZABETH LOMBARDI, ESQ. SYRACUSE OFFICE Counsel for the Plaintiff 221 South Warren Street, Suite 310 Syracuse, New York 13202 SOCIAL SECURITY ADMINISTRATION GEOFFREY PETERS, ESQ. Counsel for the Defendant Special Assistant U.S. Attorney 6401 Security Boulevard Baltimore, Maryland 21235 MIROSLAV LOVRIC, United States 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), are cross-motions for judgment on the pleadings.1 Oral argument was heard 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. 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 Commissioner’s determination was supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by 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 ORDERED as follows: 1) Plaintiff's motion for judgment on the pleadings (Dkt. No. 9) is DENIED. 2) Defendant’s motion for judgment on the pleadings (Dkt. No. 10) is GRANTED. 3) The Commissioner’s decision denying Plaintiff Social Security benefits is AFFIRMED. 4) Plaintiff's Complaint (Dkt. No. 1) is DISMISSED. 5) The Clerk of Court is respectfully directed to enter judgment, based upon this determination, DISMISSING Plaintiffs Complaint in its entirety and closing this case. Dated: July 19, 2023 Binghamton, New York Merah Ew Miroslav Lovric United States Magistrate Judge Northern District of New York UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________ P vs. 5:22-CV-203 COMMISSIONER OF SOCIAL SECURITY _____________________________________ DECISION AND ORDER July 13, 2023 The HONORABLE MIROSLAV LOVRIC, DISTRICT MAGISTRATE JUDGE A P P E A R A N C E S For Plaintiff: ELIZABETH LOMBARDI, ESQ. For Defendant: GEOFFREY PETERS, ESQ. Ruth I. Lynch, RPR, RMR, NYSRCR Official United States Court Reporter Binghamton, New York 13901 1 THE COURT: So the Court begins by indicating that 2 in this case Plaintiff has commenced this proceeding 3 pursuant to Title 42 U.S. Code 405(g) to challenge the 4 adverse determination by the Commissioner of Social Security 5 finding that Plaintiff was not disabled at the relevant 6 times and therefore ineligible for the benefits that she 7 sought. 8 By way of background, the Court notes as follows: 9 Plaintiff was born in 1972. She is currently approximately 10 51 years of age. She was approximately 42 years old on the 11 date of her application for benefits. Plaintiff stands 12 approximately 5 feet 1 inch in height and weighs 13 approximately 139 pounds. 14 Plaintiff is originally from Burma, where she 15 attended school up to the eighth grade. She has resided in 16 the United States since approximately 2004, and Plaintiff 17 testified that she had taken some classes here including 18 English lessons. Plaintiff spoke and understood English but 19 utilized an interpreter for some of her administrative 20 hearings. Plaintiff’s prior employment included positions 21 as a kitchen worker in a restaurant and a laundry room 22 attendant at a nursing home. 23 Procedurally, in this case the Court notes the 24 following: This case has a lengthy procedural history. 25 Plaintiff applied for Title II and Title XVI benefits on 1 April 11, 2014, alleging an onset date of October 8, 2013. 2 In support of her application for disability benefits, 3 Plaintiff claims disability based on a number of physical 4 and mental impairments including breast cancer, chest pain, 5 right arm pain, left shoulder pain, and depression. 6 Plaintiff’s application was initially denied on 7 May 29, 2014. Following a hearing, Administrative Law Judge 8 Elizabeth Koennecke issued an unfavorable decision on 9 May 24, 2016. The Appeals Council remanded Plaintiff’s 10 claim for additional consideration on June 27, 2017. 11 ALJ Koennecke held additional hearings and issued another 12 unfavorable determination on March 26, 2018. After the 13 Appeals Council denied Plaintiff’s request for review, on 14 April 5, 2019, Plaintiff commenced a proceeding in the 15 Northern District of New York. On January 13th, 2020, 16 United States Magistrate Judge Andrew T. Baxter remanded the 17 case consistent with the parties’ stipulation to remand the 18 matter. Following the resulting remand order from the 19 Appeals Council, Plaintiff appeared at a hearing on 20 April 30th, 2021, before a new ALJ, that being ALJ John P. 21 Ramos. ALJ Ramos issued an unfavorable decision on June 15, 22 2021. ALJ Ramos’s June 15, 2021 decision became the 23 Commissioner’s final determination after the Appeals Council 24 denied Plaintiff’s request for review on February 3rd, 2022. 25 This action was commenced on March 3, 2022, and it 1 is timely. 2 In his June 15, 2021 decision, ALJ Ramos first 3 determined that Plaintiff met the insured status 4 requirements of the Social Security Act through March 31, 5 2019, and he then commenced the familiar five-step test for 6 determining disability. 7 At step one, ALJ Ramos concluded that Plaintiff 8 had not engaged in substantial gainful activity since the 9 alleged onset date of October 8, 2013. 10 At step two, ALJ Ramos concluded that Plaintiff 11 had the following severe impairments, those being residuals 12 of breast cancer treatment with impairment of right 13 shoulder; degenerative joint disease of the left shoulder; 14 degenerative disc disease of the lumbar and cervical spine; 15 and depressive disorder. 16 At step three, ALJ Ramos concluded that Plaintiff 17 did not have an impairment or combination of impairments 18 that met or medically equaled the severity of one of the 19 listed impairments in 20 CFR Sections 404.1520(c) and 20 416.920(c). In making this determination, the ALJ 21 considered listings at 1.15, dealing with disorders of the 22 skeletal spine; listing 1.16, dealing with lumbar spinal 23 stenosis; listing 1.18, dealing with abnormality of major 24 joint; and listing 13.10, dealing with breast cancer. 25 Next, the ALJ determined that Plaintiff has the 1 residual functional capacity, also referred to as RFC, to 2 perform less than the full range of light work. 3 Specifically, the ALJ found Plaintiff can occasionally reach 4 overhead with both upper extremities; stand or walk for six 5 hours in an eight-hour workday for up to two hours at a 6 time; sit for six hours in an eight-hour workday; frequently 7 climb stairs and ramps but never climb ladders, ropes, or 8 scaffolds; and frequently balance, crouch, crawl, and stoop. 9 The ALJ found Plaintiff can understand and follow simple 10 instructions and directions; perform simple tasks with 11 supervision and independently; maintain attention and 12 concentration for simple tasks; and regularly attend to a 13 routine and maintain a schedule. The ALJ also found 14 Plaintiff can interact with supervisors on an occasional 15 basis after learning her job duties from an instructional or 16 demonstration lesson; can work in proximity to coworkers but 17 should only have brief occasional interaction with coworkers 18 and should have no contact with the public. Finally, the 19 ALJ found Plaintiff can make decisions directly in the 20 performance of simple work and should work in a position 21 where they are not responsible for the work of or required 22 to supervise others. 23 At step four, the ALJ relied on the vocational 24 expert testimony to determine that Plaintiff was unable to 25 perform any past relevant work. 1 Again relying on the vocational expert testimony, 2 the ALJ found that considering Plaintiff’s age, education, 3 work experience, and RFC that there are jobs that exist in 4 significant numbers in the national economy that she can 5 perform. More specifically, the vocational expert testified 6 that Plaintiff can perform the requirements of 7 representative occupations such as cleaner, housekeeper, 8 garment folder, and scrap separator. Accordingly, the ALJ 9 found that Plaintiff was not disabled from the alleged onset 10 date of October 8, 2013 through the date of the ALJ’s 11 decision. 12 Now turning to the plaintiff’s argument as set 13 forth in Plaintiff’s brief, I begin as follows. First, as 14 the parties know, this Court’s functional role in this case 15 is limited and extremely deferential. The Court must 16 determine whether correct legal principles were applied and 17 whether the determination is supported by substantial 18 evidence, defined as such relevant evidence as a reasonable 19 mind would find sufficient to support a conclusion. As the 20 Second Circuit noted in Brault v. Social Security 21 Administration Commissioner, found at 683 F.3d 443, a 2012 22 case, therein the Circuit indicated this standard is 23 demanding, more so than the clearly erroneous standard. The 24 Court noted in Brault that once there is a finding of fact, 25 that fact can be rejected only if a reasonable fact-finder 1 would have to conclude otherwise. 2 Plaintiff in this case in their brief raises three 3 primary contentions. First, Plaintiff argues that the ALJ 4 erred in evaluating the medical opinion evidence related to 5 Plaintiff’s ability to reach with her upper extremities. 6 Second, Plaintiff alleges and argues that the ALJ 7 failed to properly evaluate the vocational expert testimony. 8 And then, third, Plaintiff argues that the ALJ’s 9 handling of Plaintiff’s objections to the vocational expert 10 testimony demonstrated bias that tainted the ALJ’s -- that 11 tainted the degree of disability determination as made by 12 the ALJ. 13 The Court begins its analysis as follows. The ALJ 14 considered two medical opinions that directly addressed 15 Plaintiff’s reaching ability. Dr. S. Putcha, a state agency 16 consultant, reviewed Plaintiff’s then current medical 17 records as after May 27, 2014 and prepared an opinion 18 regarding Plaintiff’s physical impairments. He summarized 19 Plaintiff’s history of breast cancer treatment including 20 chemotherapy, radiation, double mastectomy, and 21 reconstructive surgery. Based on this history, Dr. Putcha 22 opined that Plaintiff had limited ability to reach overhead 23 or reach in front and/or laterally but could perform light, 24 one-arm work on a sustained basis. The Court notes at this 25 juncture that the ALJ also assigned varying weights to 1 opinions from Plaintiff’s treating oncologist, Plaintiff’s 2 therapist, and several physical and psychiatric consultative 3 examiners, but Plaintiff has not challenged the ALJ’s 4 evaluation of that evidence. 5 ALJ Ramos called Dr. Steven Goldstein as an 6 independent medical expert to testify at the April 30th, 7 2021 hearing. Dr. Goldstein summarized Plaintiff’s medical 8 record, including a recent diagnosis of degenerative disc 9 disease and imaging reports from April 2020 showing tears in 10 her right and left rotator cuff. Based on this review, 11 Dr. Goldstein’s opinion included a limitation to occasional 12 overhead lifting with the right and left arm but otherwise 13 imposed no limitations on Plaintiff’s use of her upper 14 extremities. Dr. Goldstein testified that he based his 15 opinion on the medical record as well as his own experience 16 treating patients with similar injuries. 17 The ALJ assigned "great weight" to Dr. Goldstein’s 18 opinion and incorporated most of his opined limitations, 19 including occasional overhead reaching, into his RFC 20 determination. The ALJ assigned no specific weight to 21 Dr. Putcha’s opinion but rejected the additional limitations 22 on lateral and forward reaching as inconsistent with 23 Dr. Goldstein’s testimony and the documented improvement in 24 Plaintiff’s condition as reflected in medical records post 25 dating Dr. Putcha’s review. 1 Plaintiff contends that the ALJ erred by failing 2 to assign a specific weight to Dr. Putcha’s opinion and by 3 failing to incorporate additional reaching limitations into 4 the RFC. This court rejects both of those arguments. 5 Even though the ALJ failed to assign a particular 6 weight to the state agency consultant’s opinion, he 7 reasonably, that being the ALJ reasonably explained that 8 Dr. Putcha’s May 2014 review was limited to records close in 9 time to Plaintiff’s recovery from breast cancer and surgery 10 and that Dr. Goldstein’s less restrictive opinion was more 11 consistent with the overall treatment record and supported 12 by Dr. Goldstein’s hearing testimony, including 13 cross-examination by Plaintiff’s counsel. See, for example, 14 case of Buscemi v. Colvin, that’s 13-CV-6088P, and that’s 15 found at 2014 Westlaw 4772567 at page 13, and that’s a 16 Western District New York September 24, 2014 case, therein 17 finding that ALJ’s failure to assign a specific weight to 18 medical opinion was harmless because the decision reliably 19 demonstrates that the ALJ afforded some weight to that 20 opinion but afforded other opinions greater weight because 21 of greater consistency with the record evidence. As part of 22 his decision, the ALJ highlighted examination reports from 23 June 2014, September 2016, and March of 2020 showing, quote, 24 very good to full, end quote, range of motion in both of 25 Plaintiff’s shoulders despite lingering pain and were thus 1 consistent with Dr. Goldstein’s less restrictive opinion. 2 In resolving the conflict between Dr. Putcha and 3 Dr. Goldstein’s assessments of Plaintiff’s functional 4 limitations, the ALJ was exercising his authority to choose 5 between properly submitted medical opinions and explained 6 his reasons for doing so. It is well-established that it is 7 the province of the ALJ to resolve such conflicts in the 8 evidence. Therefore, this court will not reweigh the 9 evidence and finds no grounds for remand arising from the 10 ALJ’s evaluation of the medical opinion evidence. 11 Plaintiff raises two challenges to the vocational 12 expert testimony. First, Plaintiff contends that the ALJ 13 did not adequately resolve conflicts between the vocational 14 expert’s description of representative job requirements and 15 the Dictionary of Occupational Titles, which is also 16 referred to as the DOT. Second, Plaintiff argues that the 17 vocational expert overestimated the number of jobs available 18 for an individual with Plaintiff’s RFC. This court finds 19 neither of those arguments persuasive. 20 The DOT is published by the Department of Labor 21 and provides detailed descriptions of the requirements for a 22 variety of jobs. At the April 30th, 2021 hearing, the 23 vocational expert testified that Plaintiff could perform 24 representative occupations of cleaner/housekeeper, also 25 garment folder, and scrap separator. Consistent with the 1 regulations and case law, the ALJ asked the vocational 2 expert whether his testimony conflicted in any way with the 3 DOT. In response to questioning from the ALJ and 4 Plaintiff’s counsel, the vocational expert testified that 5 the, quote, no public contact, end quote, restriction in the 6 RFC was not directly addressed by the DOT but that he had 7 relied on a number of factors that can generally be 8 characterized as professional experience in evaluating the 9 RFC’s compatibility with the various job listings in the 10 DOT. This included direct observation of the work as 11 generally performed and interviews with employees who 12 performed those jobs, as well as review of the job 13 requirements in the DOT and the related standard 14 occupational classification system developed by the 15 U.S. Bureau of Labor Statistics. The ALJ referenced these 16 factors in his evaluation of the vocational expert’s 17 testimony and thus had a reasonable basis for deeming the 18 vocational expert’s conclusions to be reliable. In light of 19 this testimony and the associated analysis, this court finds 20 this case distinguishable from its remand order in 21 Robert G. v. Saul, found at 19-CV-576, Northern District New 22 York August 4, 2020. In that case the vocational expert 23 provided no explanation for an apparent conflict between his 24 testimony addressing the level of social interaction 25 required for a particular job and the DOT. 1 The vocational expert testified that each of the 2 representative occupations existed in significant numbers in 3 the national economy. Specifically he relied upon the 4 Department of Labor’s Occupational Employment Statistics, 5 also referred to as OES, estimates of 418,000 housekeeping 6 jobs, 69,056 garment folder jobs, and 31,125 separator jobs. 7 In response to questioning from Plaintiff’s counsel, the 8 vocational expert provided greater detail into the -- his 9 methodology for estimating jobs, explaining that he compared 10 the OES quarterly estimate for jobs in the national economy 11 against the applicable DOT and SOC job classification codes. 12 The vocational expert further testified that he recognized 13 that the precision of these estimates was impacted by the 14 broad scope of some of these job classification codes but, 15 in his professional opinion, the approach still produced the 16 most reliable estimate of available jobs. 17 During this questioning, Plaintiff’s counsel 18 presented alternative job calculation figures derived from 19 Job Browser Pro and Skill Tran software programs, suggesting 20 far fewer jobs were available in the representative 21 occupations. In response, the vocational expert challenged 22 the accuracy of these alternate estimates. The vocational 23 expert explained that he generally found those software 24 programs unreliable because the developers fail to disclose 25 the methodology behind their estimates. He also found the 1 specific numbers cited by Plaintiff’s counsel to be 2 inconsistent with his knowledge of the applicable industries 3 and the overall job market. 4 Plaintiff contends that the hearing transcript 5 demonstrates that the vocational expert’s testimony 6 regarding available jobs is poorly supported and unreliable 7 and that the ALJ’s reliance upon that testimony is an error 8 requiring remand. This court rejects that contention. The 9 record demonstrates that the vocational expert had 10 appropriate professional expertise and experience. His 11 testimony described his application of that professional 12 expertise and experience to the RFC determination, along 13 with his general methodology for estimating available jobs 14 in response to extensive questioning from vocational expert 15 and Plaintiff’s counsel. Therefore, the ALJ had substantial 16 evidence to support his step five determination under the 17 standards articulated by the Supreme Court and the Second 18 Circuit. See case of Biestek vs. Berryhill, 139 Supreme 19 Court 1148, that’s a 2019 Supreme Court case, noting that an 20 ALJ may properly consider a vocational expert’s professional 21 qualifications, coherent testimony, and general explanation 22 of methodology as substantial evidence to support job 23 estimates. See also case of McIntyre v. Colvin, that’s 24 found at 758 F.3d 146 at page 152. That’s a Second Circuit 25 2014 case, and therein finding that ALJ had reasonably 1 relied on vocational testimony based upon professional 2 experience, clinical judgment, and consistency with record. 3 Plaintiff’s assertion that the Job Browser Pro and 4 Skill Tran software provided a better approach does not 5 alter that conclusion, particularly where the vocational 6 expert explained why he found the software unreliable. See 7 case of Galiotti v. Astrue, that’s 266 Fed Appendix 66 at 8 page 68. That’s a Second Circuit 2008 case. And therein 9 finding step five determination supported by substantial 10 evidence despite Plaintiff’s objection to vocational 11 expert’s vague explanation of how he estimated the number of 12 available jobs. See also case of Diaz v.Berryhill, 13 17-CV-735, and that is found at 2018 Westlaw 4462366 at 14 page 9, and that’s a District of Connecticut September 18, 15 2018 decision. And therein the court finding that 16 substantial evidence supported step five determination 17 despite Plaintiff’s objection to methodology employed by the 18 vocational expert. Also see case of Frazier v. Commissioner 19 of Social Security, 16-CV-4320, that’s found at 2017 20 Westlaw 1422465 at page 19, that’s a Southern District New 21 York April 20th, 2017 case, and therein the court rejecting 22 Plaintiff’s objection to vocational expert’s use of Skill 23 Tran software to estimate job numbers. 24 Plaintiff further contends that the ALJ exhibited 25 bias in his consideration and overruling of her objection to 1 the vocational expert testimony. The hearing transcript 2 shows that the ALJ interrupted Plaintiff’s counsel during 3 her questioning of the vocational expert because, quote, it 4 is repetitive and I understand what you are getting at, end 5 quote. The ALJ also challenged Plaintiff’s counsel to 6 provide additional evidence to support her alternative job 7 numbers. In his decision, the ALJ formally overruled 8 Plaintiff’s objection to the vocational expert testimony and 9 characterized her counsel as, quote, essentially acting as 10 an unqualified vocational expert and witness, end quote, 11 during this hearing before the ALJ. 12 There is a rebuttable presumption that an ALJ has 13 acted in an unbiased manner. While the ALJ’s handling of 14 the Plaintiff’s objections to the vocational expert 15 testimony can fairly be described as contentious or 16 confrontational, Plaintiff has not shown the extreme 17 hostility or prejudice required to support an allegation of 18 bias. Indeed, although the ALJ prematurely ended counsel’s 19 line of questioning regarding the estimated job numbers, he 20 allowed Plaintiff an opportunity to submit written arguments 21 and analyzed the dispute at length as part of the step five 22 determination. Because the ALJ marshalled substantial 23 evidence to support his resolution of this question, this 24 court does not find any bias in his determination. Although 25 Plaintiff highlights evidence that may support each of her 1 arguments, as long as the disability determination is 2 supported by substantial evidence, which it is here, this 3 court finds that it is, then the court must affirm the 4 Commissioner’s determination. 5 As a result and based upon this reasoning and 6 analysis, it is the decision of this court that Plaintiff’s 7 motion for judgment on the pleadings is denied. Defendant’s 8 motion for judgment on the pleadings is granted. 9 Plaintiff’s complaint is dismissed. And the Commissioner’s 10 decision denying Plaintiff benefits is affirmed. 11 This constitutes the analysis, reasoning, and 12 decision of this court. 13 - - - - - 14 15 16 17 18 19 20 21 22 23 24 25 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, RUTH I. LYNCH, RPR, RMR, NYS Realtime Certified 5 Reporter, Federal Official Court Reporter, in and for the 6 United States District Court for the Northern District of 7 New York, DO HEREBY CERTIFY that pursuant to Section 753, 8 Title 28, United States Code, that the foregoing is a true 9 and correct transcript of the stenographically reported 10 proceedings held in the above-entitled matter and that the 11 transcript page format is in conformance with the 12 regulations of the Judicial Conference of the United States. 13 14 15 16 /s/ Ruth I. Lynch 17 RUTH I. LYNCH, RPR, RMR, NYSRCR 18 Official U.S. Court Reporter 19 20 21 22 23 24 25