Fetterly v. Commissioner of Social Security ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK LESLIE F., Plaintiff, v. Civil Action No. 8:22-CV-1338 (DEP) COMMISSIONER OF SOCIAL SECURITY, Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF COLLINS & HASSELER, PLLC LAWRENCE D. HASSELER, ESQ. 225 State Street Carthage, NY 13619 FOR DEFENDANT SOCIAL SECURITY ADMIN. JASON P. PECK, ESQ. 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) are cross-motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on December 15, 2023, during a telephone conference held 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 did not result from the application of proper legal principles and is not 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, a transcript of which is attached and incorporated herein by reference, it is hereby ORDERED, as follows: 1) Plaintiff=s motion for judgment on the pleadings is GRANTED. 2) The Commissioner=s determination that plaintiff was not 1 This action is timely, and the Commissioner does not argue otherwise. It has been treated in accordance with the procedures set forth in the Supplemental Social Security Rules and General Order No. 18. Under those provisions, the court considers the action procedurally as if cross-motions for judgment on the pleadings have 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 VACATED. 3) | The matter is hereby REMANDED to the Commissioner, without a directed finding of disability, for further proceedings consistent with this determination. 4) The clerk is respectfully directed to enter judgment, based upon this determination, remanding the matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case. U.S. Magistrate Judge Dated: December 19, 2023 Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x LESLIE SCOTT F., Plaintiff, vs. 8:22-CV-1338 COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on December 15, 2023, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding. A P P E A R A N C E S (By Telephone) For Plaintiff: COLLINS & HASSELER, PLLC Attorneys at Law 225 State Street Carthage, New York 13619 BY: LAWRENCE D. HASSELER, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION Office of the General Counsel 6401 Security Blvd. Baltimore, Maryland 21235 BY: JASON P. PECK, ESQ. Jodi L. Hibbard, RMR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (The Court and all counsel present by 2 telephone.) 3 THE COURT: All right. Thank you. Let me begin by 4 thanking counsel for excellent and spirited presentations. 5 Plaintiff has commenced this proceeding pursuant to 6 42 United States Code Section 405(g) to challenge an adverse 7 determination by the Acting Commissioner of Social Security 8 finding that he was not disabled at the relevant times and 9 therefore ineligible for the benefits for which he applied. 10 The background is as follows: Plaintiff was born 11 in October of 1970, he is currently 53 years of age. He was 12 50 years old at the amended onset date of October 4, 2020. 13 That is significant as we will see later because that places 14 him in an advanced age category for purposes of the Medical 15 Vocational Guidelines in the Commissioner's Regulations. 16 Plaintiff stands 5 foot 10 inches in height and weighs 17 approximately 177 pounds. Plaintiff lives in Norfolk, 18 New York with his father, he's apparently divorced. 19 Plaintiff has a high school education and while in school he 20 attended regular classes. He does not have any further 21 educational or vocational training. Plaintiff has a driver's 22 license and does own a vehicle. 23 The record is a little equivocal as to when 24 plaintiff stopped working. At one point it indicates that 25 occurred on January 1, 2017, but I believe he meant 1 January 1, 2018 from the context. Before stopping work, he 2 was a line cook at a restaurant, which closed December 31, 3 2017. Plaintiff did say he would -- he thinks he would have 4 stayed there working if the restaurant remained open, that's 5 at page 63 of the Administrative Transcript. While there, he 6 did not work full time, he worked 20 to 25 hours per week and 7 was given various accommodations for his physical conditions. 8 Plaintiff also worked as a driver for a car dealer, taking 9 vehicles to auction, and was a manager at various Dunkin 10 Donut franchises. He left that position when his performance 11 deteriorated due to personal problems -- apparently a 12 divorce. 13 Physically, plaintiff suffers from degenerative 14 disk disease of the cervical and lumbar spine and scoliosis. 15 He underwent surgery in 1987, he is fused to L2 level with 16 rods. Plaintiff has been in pain management for his 17 condition since August of 2018. He has attempted to manage 18 his pain through medication, physical therapy, home exercise, 19 nerve blocks, and RF ablation. 20 Mentally, plaintiff does not claim to have any 21 issues that would affect his ability to work. 22 Plaintiff, in addition to his residual neck and 23 back pain, also suffers from shoulder pain, as well as a 24 breathing issue for which he uses an inhaler two times per 25 day. He has hypertension and a couple other nonsevere 1 physical impairments. 2 Plaintiff has been treated by various providers, 3 including FNP Hillary Heaton from North Country Community 4 Health Center, Dr. Richard Distefano at SOS, Dr. Aathirayen 5 Thiyagarajah, apparently a pain specialist, and FNP Krista 6 Switzer, also some sort of pain management nurse 7 practitioner. Plaintiff is on various medications including 8 but not limited to gabapentin. Plaintiff is a smoker, he 9 smokes one pack per day against medical advice. 10 Procedurally, plaintiff commenced this matter by 11 applying for Title II Social Security benefits on January 29, 12 2021, alleging an onset date of December 31, 2018. That was 13 later amended to October 4, 2020, coinciding with his 50th 14 birthday. A hearing was conducted on October 27, 2021 by 15 Administrative Law Judge Kenneth Theurer. ALJ Theurer issued 16 an unfavorable decision on December 1, 2021. That became a 17 final determination of the agency on November 7, 2022 when 18 the Appeals Council denied plaintiff's application for 19 review. This action was commenced on December 12, 2022 and 20 is timely. 21 In his decision, ALJ Theurer applied the familiar 22 five-step sequential test for determining disability. 23 At step one he concluded plaintiff had not engaged 24 in substantial gainful activity subsequent to October 4, 25 2020. 1 At step two, he concluded that plaintiff does 2 suffer from severe impairments which impose more than minimal 3 limitations on his ability to perform basic work functions, 4 including degenerative disk disease of the lumbar spine, 5 scoliosis, and degenerative disk disease of the cervical 6 spine. 7 At step three, ALJ Theurer concluded that 8 plaintiff's conditions do not meet or medically equal any of 9 the listed presumptively disabling conditions set forth in 10 the Commissioner's regulations, specifically considering 11 Listings 1.15 and 1.16. 12 Administrative Law Judge Theurer next determined 13 that plaintiff retains the residual functional capacity to 14 occasionally lift and carry 20 pounds, frequently lift and 15 carry 10 pounds, sit for up to six hours and stand or walk 16 for approximately six hours in an eight-hour day with normal 17 breaks. He can occasionally climb ramps or stairs, never 18 climb ladders, ropes, or scaffolds and can perform occasional 19 balancing, stooping, kneeling, crouching, and crawling. 20 Essentially this is a light work RFC with some modifications. 21 Applying that RFC at step four, ALJ Theurer 22 concluded that plaintiff is not capable of performing -- I'm 23 sorry, is capable of performing his past relevant work as a 24 store manager and operations manager at Dunkin Donuts, it was 25 a position he held from 2008 to 2012 and constituted 1 substantial gainful activity. The vocational expert 2 testified that plaintiff is capable of performing that job 3 notwithstanding his impairments and resulting limitations. 4 As an alternative finding, ALJ Theurer concluded at 5 step five that there are other jobs plaintiff is capable of 6 performing notwithstanding his limitations, including cleaner 7 - housekeeping, cafeteria attendant, and fast food worker, 8 those are available in the national economy in sufficient 9 numbers and therefore concluded that plaintiff was not 10 disabled. 11 As you know, the court's function in this case is 12 extremely limited to determining whether substantial evidence 13 supports the resulting determination and correct legal 14 principles were applied. As the Second Circuit has noted, 15 including in Brault v. Social Security Administration, 683 16 F.3d 443 from 2012, this is an extremely deferential 17 standard, more stringent than the clearly erroneous standard 18 that lawyers are accustomed to. The Second Circuit's 19 decision in Brault and its position concerning the standard 20 of review was reaffirmed in Schillo v. Kijakazi, 31 F.4th 64 21 from April 6, 2022. Substantial evidence of course is 22 defined as such relevant evidence as a reasonable mind would 23 find sufficient to support a conclusion. 24 In this case plaintiff raises three basic 25 contentions. He argues that plaintiff's -- the ALJ 1 improperly evaluated his subjective complaints of 2 symptomology; secondly, he argues that the ALJ improperly 3 evaluated the medical statements of record, including that 4 from Nurse Practitioner Heaton, and instead favoring the 5 determinations, the administrative determinations of state 6 agency consultants; and third, he argues that the 7 administrative law judge should have addressed the question 8 of absences and whether plaintiff would be absent more than 9 allowed by an employer. 10 Turning first to the medical opinions, there are 11 essentially three opinions in the record. The first is from 12 a state consultant, Dr. J. Sharif-Najafi, from March 26, 13 2021. It appears at 70 to 80 of the Administrative 14 Transcript. The result according to that doctor was that 15 plaintiff was capable of occasionally lifting 20 pounds, 16 frequently lifting 10 pounds, standing and/or walking a total 17 of six hours in an eight-hour workday, sitting about six 18 hours in an eight-hour workday, frequently climbing ramps, 19 stairs, occasionally climbing ladders, ropes, scaffolds, 20 frequently balancing, frequently stooping, frequently 21 kneeling, frequent crouching, occasionally crawling. As 22 plaintiff has argued, this particular consultant did not have 23 available significant records. Page 72 indicates that the 24 only records reviewed were from the Community Health Center 25 of North Country, and they were received on March 8, 2021, 1 and Canton Potsdam Hospital, also received in March of 2021. 2 The second opinion of record is again from a state 3 agency, administrative determination by a state agency 4 consultant, M. Perrotti, from May 27, 2021, it is at 83 to 95 5 and appears also at 432 to 433. Dr. Perrotti affirmed the 6 initial determination. Dr. Perrotti did have additional 7 records available to him, 83 through 86 reveals the 8 additional records that were reviewed and there are 9 significantly more records than were reviewed by his 10 predecessor. 11 The third opinion in the record is from FNP Hillary 12 Heaton from North Country Community Health Center, it is 13 cosigned by Occupational Therapist Stacey Graves. It is 14 accompanied by a functional capacity evaluation conducted by 15 Ms. Graves. It is dated July 8, 2021. That appears at 439 16 to 444 and as I said, it's accompanied by the FCE. The lift 17 capacity is similar to the RFC, however, it differs in the 18 following regards. It claims that plaintiff can carry only 19 up to 10 pounds, can sit five hours out of an eight-hour 20 workday with breaks 40 minutes at a time, can stand only two 21 hours in an eight-hour workday 13 minutes at a time. Can 22 walk one hour out of eight, at five to ten minutes at a time, 23 can never stoop or crawl, can only occasionally reach, 24 handle, finger, feel, push, and pull. So there is clearly a 25 conflict between this medical source statement and the prior 1 administrative determinations. 2 The evaluation of medical evidence in this case is 3 subject to the new regulations that went into effect in March 4 of 2017. Under those regulations the Commissioner does not 5 defer or give any specific evidentiary weight, including 6 controlling weight, to any medical opinions, including those 7 from the claimant's medical sources. Instead, the ALJ must 8 consider whether those opinions are persuasive, by primarily 9 considering whether they are supported by and consistent with 10 the record in the case, 20 C.F.R. Section 416.920c(a). In 11 his or her decision, an ALJ must articulate as to how and why 12 persuasive he or she finds the medical opinions and explain 13 how he or she considered those two elements, supportability 14 and consistency. There are other factors that may and should 15 be considered but the ALJ is not required to explain 16 consideration of those factors. 20 C.F.R. Section 17 416.920c(c). In this case -- and significantly, and case law 18 is clear, including in Veino v. Barnhart, 312 F.3d 578 from 19 the Second Circuit 2002, evaluation of conflicting medical 20 reports and opinions is a matter entrusted to an ALJ. 21 In this case, the administrative law judge did 22 acknowledge the treating relationship of Hillary Heaton, 23 although Ms. Heaton did not -- had not treated -- let's see. 24 I take that back. It's clear and the plaintiff's counsel 25 acknowledged that a state agency administrative determination 1 can supply substantial evidence to support an RFC finding. 2 Woytowicz v. Commissioner of Social Security, 2016 WL 3 6427787, from the Northern District of New York, October 5, 4 2016. In this case the administrative law judge found the 5 opinions of the two state consultants, Dr. Sharif-Najafi and 6 Dr. Perrotti, to be most persuasive, and Nurse Practitioner 7 Heaton's medical source statement to be partially persuasive 8 in that it does coincide when it comes to lifting with the 9 RFC. The explanation is given on page 18 and page 19 for the 10 persuasiveness of each of those opinions, and I don't find 11 any error. The portions of the opinion of Nurse Practitioner 12 Heaton that are rejected were found to be inconsistent with 13 the conclusion of Occupational Therapist Graves. It is also 14 inconsistent with the opinions of Dr. Sharif-Najafi and 15 Dr. Perrotti. I don't find any error in the weighing of 16 those opinions which, as I said before, is a matter entrusted 17 to the Commissioner. I believe the explanation given by 18 Administrative Law Judge Theurer was proper and permits 19 adequate judicial review and is supported by substantial 20 evidence. 21 The second issue, and it's actually the third 22 issue, is the absenteeism issue. Plaintiff argues that the 23 RFC should have included a statement as to how often 24 plaintiff might be absent from work. Of course pivotal to 25 any disability determination is an RFC assessment, which 1 represents a finding of the range of tasks that claimant is 2 capable of performing notwithstanding his or her impairments. 3 Ordinarily that means a claimant's maximum ability to perform 4 sustained work activities in an ordinary setting on a regular 5 and continuing basis, meaning eight hours a day for five days 6 a week or an equivalent schedule. And an RFC of course is 7 informed by consideration of claimant's physical and mental 8 abilities, symptomology, and other limitations that could 9 interfere with work activities on a regular and continuing 10 basis, as well as all the relevant medical and other evidence 11 of record. 12 THE CLERK: Judge, I'm sorry to interrupt you, I 13 think somehow we may have gotten dropped from the call. Can 14 we check to see if the counselors can still hear us? 15 THE COURT: Can you still hear us? Mr. Hasseler? 16 Mr. Peck? 17 THE CLERK: I can see us on -- I can see them on 18 but I no longer see us on. So I think something may have 19 happened with this. 20 (Pause in Proceedings.) 21 THE COURT: Counsel, apparently for some reason my 22 phone malfunctioned. Can someone tell me about where I was? 23 MR. PECK: Your Honor, this is Jason Peck, you were 24 about to -- you had gotten through all the primary stuff and 25 you were about to I think issue the verdict. 1 THE COURT: Okay. So, did I go through the 2 contentions that plaintiff raised? 3 MR. HASSELER: Yeah, the last thing I remember, you 4 cited a couple cases. 5 THE COURT: Which case, do you remember? 6 MR. HASSELER: It was 31 F. -- at 64. 7 THE COURT: Oh, that's Schillo. 8 MR. HASSELER: 31 F. -- 9 THE COURT: Okay, you'll get a transcript of this, 10 let me just give you the short version. So I went through 11 the contentions, I went through evaluation of medical 12 statements under the new regulations, and I found that 13 because the evaluation of conflicting medical opinions is a 14 matter entrusted to the administrative law judge, I did not 15 find any error. I found that there was a proper explanation 16 given that permitted adequate judicial review, and that the 17 resulting determination was supported by substantial 18 evidence. 19 I truly apologize, we did not notice earlier that 20 apparently the call had dropped. 21 I also went through the -- I was addressing the 22 second issue which was really the third issue, absences. I 23 went through what an RFC determination is, and I was about to 24 say that plaintiff bears the burden of proving his or her 25 limitations. I didn't see any evidence in the record, 1 including in plaintiff's testimony, that revealed that he 2 would be absent from work, and implicit in the state 3 administrative determinations, there was no reference to 4 absences there. Nurse Practitioner Heaton was not asked 5 about absences, and so absent plaintiff coming forward with 6 some evidence that would support the notion that he would be 7 absent from work more than one time per month, which I think 8 is what the vocational expert said is the limit, I find no 9 error. 10 And the last issue, which was actually the first, 11 was assessment of plaintiff's subjective reports of 12 symptomology. An ALJ of course must take into account 13 plaintiff's subjective complaints when going through the 14 five-step disability analysis. 20 C.F.R. Section 404.1529(a) 15 and (b). The ALJ, however, is not required of course to 16 blindly accept subjective testimony of a complainant, but 17 instead must assess first whether the claimant has a 18 medically determinable impairment that can reasonably be 19 expected to produce the alleged symptoms and if so, evaluate 20 both the intensity and persistence of those symptoms and the 21 extent to which those symptoms limit the claimant's ability 22 to perform work-related activities. 23 The matter is subject to Social Security Ruling 24 16-3p. Under that ruling, an ALJ should consider factors 25 including the claimant's daily activities, the location, 1 duration, frequency, and intensity of any symptoms, any 2 precipitating and aggravating factors, the type, dosage, 3 effectiveness, and side effects of any medications taken, 4 other treatment received, and other measures taken to relieve 5 symptoms. And of course if plaintiff's testimony was 6 rejected, the ALJ must explicitly state the basis for doing 7 so with sufficient particularity to enable a reviewing court 8 to determine whether those reasons for disbelief were 9 legitimate, and whether the determination is supported by 10 substantial evidence. Tome v. Schweiker, 724 F.2d 711, 11 Second Circuit 2000 -- 1984, and Martone v. Apfel, 70 12 F.Supp.2d 145, Northern District of New York 1999. 13 In this case, the administrative law judge went 14 through the treatments received by the plaintiff, 15 to 17 of 15 the Administrative Transcript. As far as I can see it's 16 replete with positive findings of x-ray results, CT scan 17 results, and MRI results. Plaintiff clearly underwent pain 18 management strategies. Many of those notes cited show 19 reduced range of motion, failed physical therapy attempts, 20 tenderness, and positive straight leg raising. The summary 21 of the administrative law judge's evaluation of plaintiff's 22 complaints is one paragraph, it is succinct. No matter how 23 sincere, however, statements by interested parties cannot 24 overcome evidence of record. Furthermore, an individual's 25 statements about his or her symptoms alone are insufficient 1 to establish that an individual is disabled. In formulating 2 the residual functional capacity for the claimant, moreover, 3 I have accounted for any functional deficits of the plaintiff 4 by limiting him to light exertional work with some postural 5 restrictions. 6 In my view, and I have read thoroughly and reread 7 thoroughly this decision, it is woefully deficient. The 8 administrative law judge does not explain why in his view the 9 medical evidence does not support plaintiff's claims of 10 objective symptomology in a manner that would allow for 11 sufficient judicial review. I find that this is harmful 12 error. If plaintiff were limited to sedentary work under the 13 Medical Vocational Guidelines and particularly Grid Rules 14 201.12 and 201.14, he would be found to be disabled. 15 This needs to go back to the administrative law 16 judge for a proper consideration of weighing plaintiff's 17 subjective complaints and addressing the factors set forth in 18 SSR 16-3p. There's no reference to what he is capable of 19 doing, for example, in terms of activities of daily living 20 and how they would translate to the ability to work full 21 time. 22 So I'm going to grant judgment on the pleadings to 23 the plaintiff without a directed finding of disability 24 because I don't find persuasive evidence of disability, and 25 remand the matter to the Commissioner for further 1 consideration. Thank you both, hope you have happy holidays. 2 MR. HASSELER: Thank you, your Honor, you too. 3 MR. PECK: Thank you, your Honor. 4 (Proceedings Adjourned, 2:47 p.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RMR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 18th day of December, 2023. 17 18 19 /S/ JODI L. HIBBARD 20 JODI L. HIBBARD, RMR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25