Hemphill v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________ JOSEPH ROBERT H., Plaintiff, v. Civil Action No. 5:20-CV-637 (DEP) COMMISSIONER OF SOCIAL SECURITY, Defendant. __________________________ APPEARANCES: OF COUNSEL: FOR PLAINTIFF OLINSKY LAW GROUP MARY K. McGARIGAL, ESQ. 250 S. Clinton Street HOWARD D. OLINSKY, ESQ. Suite 210 Syracuse, NY 13202 FOR DEFENDANT SOCIAL SECURITY ADMIN. PAUL NITZE, ESQ. 625 JFK Building 15 New Sudbury St Boston, MA 02203 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 heard in connection with those motions on September 22, 2021, 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 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. 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: September 28, 2021 Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x JOSEPH H., Plaintiff, -v- 5:20-CV-637 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES September 22, 2021 100 South Clinton Street, Syracuse, New York For the Plaintiff: (Appearance by telephone) OLINSKY LAW GROUP 250 South Clinton Street Suite 210 Syracuse, New York 13202 BY: MARY KATHERINE MCGARIGAL, ESQ. For the Defendant: (Appearance by telephone) SOCIAL SECURITY ADMINISTRATION J.F.K. Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203 BY: PAUL NITZE, 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 parties present by telephone. 2 Time noted: 11:42 a.m.) 3 THE COURT: Let me begin by thanking counsel for 4 excellent and spirited discussions and briefings of this case. 5 Plaintiff has commenced this action to challenge an 6 adverse determination by the Commissioner of Social Security 7 finding that he is not disabled and therefore ineligible for the 8 benefits which he sought. The challenge is brought pursuant to [9] 42, United States Code, Section 405 (g). 10 The background is as follows: Plaintiff was born in 11 May of 1980 and is currently 41 years of age. He was 37 years 12 old at the amended onset date identified by him as the beginning 13 point of his disability, which was June 1, 2017. Plaintiff is 14 five foot and nine or ten inches in height and has weighed at 15 various times approximately 225 to 235 pounds. 16 Plaintiff lives in a house in Camillus, New York with 17 his wife and four young children and two dogs. One of those 18 children is a special needs child. There's also an indication 19 somewhere in the record that he either has adopted or fostered a 20 child or has been approved to do so. Plaintiff attended regular 21 classes and is a high school graduate. He also has two years of 22 college education. Plaintiff is right-handed and drives. 23 Plaintiff stopped working in May of 2017. At page 24 1181 of the Administrative Transcript, he states that he stopped 25 work due to stress and pain. The plaintiff was in the United 1 States military from June 1998 until April 2016. He had one 2 tour of duty in 2012 in Afghanistan and two tours in 2004 and 3 2005 in Iraq. He received an honorable discharge due to medical 4 reasons. Clearly, he experienced some horrific incidents while 5 he was in the United States military that has caused his mental 6 condition. The plaintiff also worked in the Veterans 7 Administration Hospital as a housekeeping aide from October 2016 8 until May of 2017. 9 Physically, plaintiff suffers from several diagnosed 10 conditions, including degenerative arthritis of the spine; 11 osteoarthritis of the hips bilaterally; arthritis in the knees 12 and ankles, also bilaterally; plantar fasciitis; sleep apnea; 13 and a right shoulder issue. He has had several surgeries, 14 including two on his right shoulder, a right trigger finger 15 release in 2016, and a right trigger thumb release in 16 February 2017. 17 Mentally, plaintiff has been diagnosed as suffering 18 from depression and an unspecified depressive disorder, anxiety 19 and an anxiety disorder, attention deficit and hyperactivity 20 disorder or ADHD, and posttraumatic stress disorder or PTSD. He 21 has not undergone any psychiatric hospitalization. He has 22 received ongoing counseling from the Veterans Administration. 23 At the VA, plaintiff has seen Dr. Elini Kosmas, 24 primarily for his physical conditions, Dr. Adekola Alao 25 beginning in 2015, and Dr. Katherine Cerio beginning in June of 1 2018 for his mental health conditions at an approximately 2 one-time-per-month frequency. He has also seen Licensed 3 Clinical Social Worker Bethany Joncas. 4 The defendant has a fairly robust daily life and is 5 engaged in activities, including the ability to dress, groom, 6 and shower. He can do household chores, laundry, cook, drive, 7 travel, including taking his sons on a cruise, care for his 8 children, including the one special needs infant, watches 9 television, he reads, he socializes with family and friends, and 10 can shop. 11 Medically, plaintiff has been prescribed over time 12 Sertraline or Zoloft, Adderall, Effexor, he was on Gabapentin, 13 Duloxetine or Cymbalta, Meloxicam, Lisinopril, and Zolpidem or 14 Ambien. He states that he does not experience any side effects 15 from his medications. Plaintiff is a smoker. 16 Procedurally, plaintiff applied for Title II benefits 17 under the Social Security Act on September 12, 2017, alleging an 18 onset date of April 28, 2016. It was later amended to June 1, 19 2017. The plaintiff alleged disability in his application and 20 in his function report based on PTSD, sleep apnea, plantar 21 fasciitis, arthritis of the knees, right shoulder impairment, 22 arthritis of the ankles, and arthritis of the spine. A hearing 23 was conducted by ALJ Jennifer Gale Smith on May 8, 2018, to 24 address plaintiff's application for benefits. Judge Smith 25 issued a decision unfavorable to the plaintiff on June 26, 2018. 1 The matter was subsequently remanded by the Social Security 2 Appeals Council on August 8, 2019. 3 While the appointment clause issue was one that was 4 involved in the remand, as the Commissioner argues, there were 5 other issues. The Appeals Council found that the plaintiff did 6 not perform an adequate B criteria analysis when addressing the 7 listings. There was an issue regarding a question of the 8 ability to balance and whether that would be inconsistent with 9 the ability to stand and walk. And, also, there was an issue of 10 uncertainty or lack of clarity with regard to the ability to 11 perform, quote, lower level complex tasks. The remand order is 12 at 158 to 160 of the Administrative Transcript. 13 On remand, the matter was assigned to a new 14 Administrative Law Judge, Kenneth Theurer, who conducted a 15 hearing on January 6, 2020. Administrative Law Judge Theurer 16 issued an unfavorable decision on June 31, 2020. That became a 17 final determination of the agency on August 6, 2020, when the 18 Appeals Council denied plaintiff's application for a review. 19 This action was commenced on June 8, 2020, and is timely. 20 In his decision, ALJ Theurer applied the familiar 21 five-step sequential test for determining disability. He first 22 noted that plaintiff is insured through December 31, 2022. He 23 found at step one that plaintiff had not engaged in substantial 24 gainful activity, or SGA, since June 1, 2017, the amended onset 25 date. 1 At step two, he concluded that plaintiff suffers from 2 severe impairments including several physical and, significantly 3 for purposes of this proceeding, mental impairments, including 4 PTSD, depressive disorder, anxiety disorder, and ADHD. 5 At step three, ALJ Theurer concluded that plaintiff's 6 conditions do not meet or medically equal any of the listed 7 presumptively disabling conditions set forth in the 8 Commissioner's regulations. With regard to the mental 9 component, he examined listings 12.04, 12.06, 12.11, and 12.15. 10 The Administrative Law Judge next concluded that plaintiff has 11 the residual functional capacity, or RFC, to perform light work 12 with several restrictions or conditions, both physical-related 13 and mental-related. 14 Significantly for purposes of this argument, he found 15 that plaintiff can maintain attention and concentration for 16 simple and some more complex tasks. He also found that 17 plaintiff can regularly attend to a routine and maintain a 18 schedule. He found that the claimant can relate to and interact 19 with coworkers and supervisors to the extent necessary to carry 20 out simple tasks. He stated that the claimant should have no 21 more than occasional contact with coworkers and supervisors and 22 no more than incidental contact with the public, which he 23 defined further as more than never and less than occasional. He 24 also went on to state specifically the job should not involve 25 direct interaction with the public, but the claimant does not 1 need to be isolated away from the public. 2 Applying that residual functional capacity 3 determination at step four, Administrative Law Judge Theurer 4 concluded that plaintiff was incapable of performing his past 5 relevant work, which was characterized as an infantry crew 6 member and a hospital cleaner. 7 At step five, ALJ Theurer first noted that if 8 plaintiff were capable of performing a full range of light work, 9 a finding of no disability would be directed by the 10 Medical-Vocational Guidelines set forth in the regulations or 11 the so-called grids, and specifically Grid Rule 202.21. Because 12 of the erosion of the job base on which the grids are predicated 13 and due to the limitations set forth in the RFC, ALJ Theurer 14 consulted with a vocational expert, and based on the vocational 15 expert's testimony, he concluded that plaintiff is capable of 16 performing available work in the national economy, citing three 17 representative jobs as routing clerk, power screwdriver 18 operator, and photocopy machine operator, and therefore 19 concluded that plaintiff was not disabled at the relevant times. 20 As you know, the Court's function in this case is 21 limited and highly deferential. The Court must determine 22 whether correct legal principles were applied and whether the 23 result was supported by substantial evidence, defined as such 24 relevant evidence as a reasonable mind would find sufficient to 25 support a conclusion. 1 The Second Circuit in Brault v. Social Security 2 Administration, 683 F.3d 443 from 2012, emphasized the 3 deferential nature of the standard which the Court must apply, 4 characterizing it as even more deferential than the clearly 5 erroneous standard. The Circuit also noted in Brault that the 6 substantial evidence standard means once an ALJ finds facts, 7 they can reject those facts only if a reasonable factfinder 8 would have to conclude otherwise. 9 The plaintiff in this case has raised one basic 10 contention, that the residual functional capacity is unsupported 11 because of the Administrative Law Judge's failure to properly 12 weigh the available medical opinions in the record. The focus 13 of the argument is on the opinions given by Dr. Jeanne Shapiro, 14 an examining professional; Dr. Alao, a treating source; 15 Dr. Katherine Cerio, another treating source; and a 16 non-examining agency psychologist Dr. Marks. 17 Of course, pivotal to any finding of disability or no 18 disability is the assessment of a residual functional capacity, 19 which represents a finding of the range of tasks that plaintiff 20 is capable of performing notwithstanding his impairments. 21 Ordinarily, an RFC represents a claimant's maximum ability to 22 perform sustained work activities in an ordinary setting on a 23 regular and continuing basis, meaning eight hours a day for five 24 days a week or an equivalent schedule. And of course, an RFC 25 determination is informed by consideration of all of the 1 relevant medical and other evidence, 20 C.F.R. Section 2 404.154583, in Tankisi v. Commissioner of Social Security, 521 3 F. App’x 29 at 33 in the Second Circuit, 2013. In this case, 4 the step five determination hinges on the residual functional 5 capacity finding and if it is supported, then based on the 6 vocational expert's testimony, the ultimate determination is 7 supported by substantial evidence. 8 The plaintiff's challenge in this case centers upon 9 the mental components of the residual functional capacity 10 finding and on the four medical opinions in the record. I note 11 that because this application was filed after March of 2017, the 12 new regulations governing assessment of medical opinions apply, 13 specifically 20 C.F.R. Section 404.1520(c). 14 Under that section, there are five factors -- 15 actually, one is a catchall -- that are relevant to the inquiry: 16 Supportability; consistency with other evidence from medical and 17 nonmedical sources; the relationship of the person giving the 18 opinion to the plaintiff; the specialization of the person 19 giving the opinion; and five, other factors. The regulations 20 provide that the Administrative Law Judge must address the first 21 two, supportability and consistency, and may also address the 22 remaining three. Importantly, when there is conflicting medical 23 evidence in the record, as is the case here, in the first 24 instance it is for the Administrative Law Judge to weigh the 25 competing opinions, Veino v. Barnhart, 312 F.3d 578 , Second 1 Circuit, 2002. 2 In this case, the first opinion at issue is from Dr. 3 Shapiro given on October 26, 2017. It appears at 1181 through 4 1185 of the Administrative Transcript. The opinion of Dr. 5 Shapiro is that the plaintiff appears to have mild to moderate 6 limitations sustaining concentration and performing a task at a 7 consistent pace. She finds no limitations in sustaining an 8 ordinary routine and regular attendance at work; moderate to 9 marked limitations regulating emotions, controlling behavior, 10 and maintaining wellbeing; and moderate to marked limitations in 11 interacting adequately with supervisors, coworkers, and the 12 public. Dr. Shapiro's opinion is discussed at page 22 of ALJ 13 Theurer's decision and is found to be partially persuasive. 14 The opinions concerning the difficulty in interacting 15 with others and regulating emotions and controlling behavior and 16 maintaining wellbeing were found not to be well supported, 17 number one, by virtue of the observations made by Dr. Shapiro 18 during the examination; number two, inconsistent with other 19 evidence of record indicating that claimant was consistently 20 pleasant, appropriate, and cooperative at appointments; and was 21 approved to adopt two children, which is a significant fact that 22 separates this from, perhaps, a case like plaintiff argued where 23 being pleasant in interaction with a care provider might not 24 necessarily be indicative of how the person would act in a 25 workplace setting. The assessment of the ability to perform 1 tasks at a consistent pace was found to be speculative. 2 The decision, I believe, adequately discusses the 3 supportability and consistency factors. To the extent that Dr. 4 Shapiro's limitations opined are inconsistent with the RFC, 5 they're also inconsistent with the psychological opinion of Dr. 6 Marks, which is -- I will say in a moment -- the Administrative 7 Law Judge found to be persuasive. It is also inconsistent with 8 the activities of daily living. For example, the ability to go 9 on a cruise and eat in the ship's restaurants. It relies on 10 plaintiff's subjective statements, and although, as I indicated, 11 I believe that it's appropriate in a mental health case to some 12 degree to rely on subjective statements, plaintiff's allegations 13 of irritability are inconsistent with findings of him being 14 pleasant and cooperative, and plaintiff admitted during the 15 hearing at pages 85 and 86 that he avoided outbursts with 16 healthcare providers and patients while he was working at the 17 VA. 18 The Administrative Law Judge is proper in looking to 19 objective evidence as a useful indicator of the extent of 20 limitations, 20 C.F.R. Section 404.1529(c)(2). I do note that 21 the residual functional capacity partially accommodated Dr. 22 Shapiro's concerns by extremely restricting plaintiff's 23 interactions with supervisors and coworkers, as well as the 24 public, directing only incidental exposure to the public with no 25 direct interaction. Applying the standard articulated in 1 Brault, I cannot say that a reasonable factfinder would have to 2 credit Dr. Shapiro's opinions in full to the extent they were 3 not accommodated in the residual functional capacity finding. 4 The next opinion of record is from Dr. Alao given on 5 May 15, 2018. It appears at 1295 to 1298 of the Administrative 6 Transcript. It outlines, first, the symptoms experienced by the 7 plaintiff and then in a checkbox form identifies certain 8 categories and asks for an opinion. Significantly in this case, 9 the category of interact appropriately with the general public, 10 plaintiff is indicated to be unable to meet competitive 11 standards in that regard. 12 The Administrative Law Judge discussed the opinion at 13 page 22 and found it to be less persuasive and concluded that it 14 was not supported by Dr. Alao's observations at plaintiff's 15 appointments, which were generally normal. The severe social 16 and concentration limitations were also found to be inconsistent 17 with other evidence of record that shows that plaintiff 18 socializes family and friends, went shopping or out to eat in 19 public, drove, and could read for extended periods. I believe 20 that that is a proper explanation. It considers the issues of 21 consistency and supportability and it also, once again, is 22 inconsistent with the opinions of Dr. Marks. Again, I cannot 23 say, applying the deferential standard of Brault, that no 24 reasonable factfinder could reject Dr. Alao's opinion. 25 Dr. Cerio issued an opinion on December 16, 2019. It 1 appears at pages 1629 to 1632 of the Administrative Transcript. 2 It's, again, a checkbox form. It concludes that plaintiff is 3 not capable of meeting competitive standards in several 4 categories, including work in coordination with and in proximity 5 to others without being unduly distracted, complete a normal 6 workday or workweek without interruptions from 7 psychologically-based symptoms, accept instructions and respond 8 appropriately to coworkers and supervisors, get along with 9 coworkers or peers without unduly distracting and/or exhibiting 10 behavioral extremes, and maintain socially appropriate behavior. 11 I do note that the Second Circuit has indicated that checkbox 12 forms constitute weak evidence at best. The opinion was 13 discussed at page 21 of the Administrative Transcript. 14 Administrative Law Judge Theurer had found it to be not fully 15 supported -- not persuasive, not supported fully by treatment 16 notes, which showed generally that plaintiff was engaged and 17 able to respond, inconsistent with the medical evidence and 18 severity of his symptoms; inconsistent with travel and ability 19 to care for children, including a disabled or special needs 20 child; and at the second hearing, plaintiff admitted that he was 21 in a better place than before in the 2020 period. 22 Once again, the Administrative Law Judge's decision 23 to reject Dr. Cerio's opinion is consistent with the opinions of 24 Dr. Marks and, to a degree, by the opinion of Dr. Shapiro, so I 25 believe good reasons were cited and, once again, find no error 1 in the evaluation and rejection of portions of Dr. Alao's 2 opinion -- I'm sorry, Dr. Cerio's opinion. 3 And the last is Dr. Marks. Dr. Marks gave an opinion 4 on November 2, 2017, that relied heavily, although not 5 exclusively, on the opinion of Dr. Shapiro. It appears at 109 6 to 119, Exhibit 1A. It was discussed at pages 21 and 22 of the 7 Administrative Law Judge's decision and found to be persuasive. 8 The mental residual functional capacity finding, which is what 9 controls under the POMS, finds that the plaintiff retains the 10 ability to perform simple and some detailed tasks, and when it 11 comes to interaction states plaintiff is capable of routine 12 interactions with coworkers and supervisors, but may benefit 13 from an environment where precluded from intensive interaction 14 with the public or tasks involving a high degree of stress, and 15 this is completely consistent with the residual functional 16 capacity finding. I do note that I agree with the Commissioner 17 that to the extent that there might still be an issue lingering 18 that was identified in the Appeals Council's remand as to what 19 beyond simple work plaintiff is capable of performing, I agree 20 with the Commissioner that any error in that regard would be 21 harmless because the positions identified were all basically 22 simple work with an SVP of two. 23 So I find that the reliance on Dr. Marks's opinion is 24 appropriate, consistent with the RFC, and the RFC is slightly 25 more limiting than Dr. Marks's opinions, but that is not a basis 1 to remand. The RFC in this case is very carefully tailored and, 2 I believe, takes into account Dr. Shapiro's and Dr. Marks's 3 opinions. 4 So in conclusion, I find that correct legal 5 principles were applied and the resulting determination is 6 supported by substantial evidence. I will therefore grant 7 judgment on the pleadings to the defendant and order dismissal 8 of plaintiff's complaint. 9 Thank you once again and enjoy the rest of your day. 10 MR. NITZE: Thank you, your Honor. 11 MS. MCGARIGAL: Thank you, your Honor. 12 (Time noted: 12:11 p.m.) [2] 3 CERTIFICATE OF OFFICIAL REPORTER [5] 6 I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, 7 NYRCR, Official U.S. Court Reporter, in and for the United 8 States District Court for the Northern District of New York, DO 9 HEREBY CERTIFY that pursuant to Section 753, Title 28, United 10 States Code, that the foregoing is a true and correct transcript 11 of the stenographically reported proceedings held in the 12 above-entitled matter and that the transcript page format is in 13 conformance with the regulations of the Judicial Conference of 14 the United States. [15] 16 Dated this 28th day of September, 2021. [17] 18 s/ Hannah F. Cavanaugh______________________ 19 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR 20 Official U.S. Court Reporter