Halen v. Kijakazi

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK ALYSSA H., Plaintiff, v. Civil Action No. 3:20-cv-1506 (DEP) KILOLO KIJAKAZI, Acting Commissioner of Social Security,1 Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF LACHMAN GORTON LAW FIRM PETER A. GORTON, ESQ. P.O. Box 89 1500 East Main Street Endicott, NY 13761-0089 FOR DEFENDANT SOCIAL SECURITY ADMIN. CHRISTINE A. SAAD, ESQ. 625 JFK Building 15 New Sudbury St Boston, MA 02203 1 Plaintiff’s complaint named Andrew M. Saul, in his official capacity as the Commissioner of Social Security, as the defendant. On July 12, 2021, Kilolo Kijakazi took office as the Acting Social Security Commissioner. She has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See 42 U.S.C. § 405 (g). DAVID E. PEEBLES U.S. MAGISTRATE JUDGE ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security (“Commissioner”), pursuant to 42 U.S.C. '§ 405(g) and 1383(c), are cross-motions for judgment on the pleadings.2 Oral argument was conducted in connection with those motions on July 13, 2022, 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 2 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. 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 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: July 18, 2022 Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x ALYSSA H., Plaintiff, vs. 3:20-CV-1506 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on July 13, 2022, 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: LACHMAN GORTON LAW FIRM Attorneys at Law P.O. Box 89 1500 East Main Street Endicott, New York 13761-0089 BY: PETER A. GORTON, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel J.F.K. Federal Building Room 625 Boston, Massachusetts 02203 BY: CHRISTINE A. SAAD, ESQ. Jodi L. Hibbard, RPR, 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: Let me begin by thanking both counsel 4 for excellent spirited presentations. 5 Plaintiff has commenced this action pursuant to 42 6 United States Code Sections 405 (g) and 1383(c)(3) to 7 challenge an adverse determination by the Acting Commissioner 8 of Social Security finding that she was not disabled at the 9 relevant times and therefore ineligible for the Title XVI 10 benefits which she sought. 11 The background is as follows: Plaintiff was born 12 in February of 1991 and is currently 31 years of age. She 13 was 27 years old at the alleged onset of disability which is 14 actually the date of her application for benefits of 15 March 19, 2018. Plaintiff stands 5 foot 1 inch in height and 16 has weighed between 117 and 130 pounds at various times. 17 Plaintiff lives in Johnson City with her mother, a son 18 together with the wife's son -- the wife's son's father, and 19 also with her sister. Plaintiff is right-handed. She 20 achieved a GED and attended regular classes while in school. 21 I note that the marital situation is fairly fuzzy, it's 22 unclear whether she and the son's father are married. They 23 live apart but cohabitate when the son is with the father. 24 Plaintiff does not have a driver's license. Plaintiff 25 stopped working in March of 2018 and actually, according to 1 page 31 of the administrative transcript, has not worked 2 since 2013. When she did work, she worked as a part-time 3 cashier in a restaurant, as a janitor, and as a grocery store 4 produce worker. According to page 231 of the administrative 5 transcript, she was fired from that position as a result of a 6 conflict with her boss. 7 Plaintiff does suffer from some relatively minor 8 physical impairments including tarsal tunnel syndrome, left 9 lower, for which she underwent release surgery in September 10 of 2018, fibromyalgia, and sleep apnea, although she does not 11 use a CPAP machine. 12 The issue really in this case surrounds her mental 13 condition. She has at various times been diagnosed as 14 suffering from depressive disorder, panic disorder without 15 agoraphobia, bipolar disorder, and cannabis disorder. In 16 March of 2017, she attempted suicide through overdose of 17 gabapentin and Klonopin and was hospitalized as a result of 18 that suicide attempt. There were also indications of 19 physical confrontations with her mother at or about that 20 time. Plaintiff has treated with various providers including 21 Endwell Family Physicians, Lourdes Primary Care, UHS 22 Rheumatology, Lourdes Center for Mental Health, UHS Mental 23 Health, and Family and Children's Society. 24 In terms of activities of daily living, plaintiff 25 does some cooking, child care, including dropping off and 1 picking up her son at the bus stop. She plays with her son, 2 she cleans, watches television, listens to the radio. She 3 can dress herself, she does not shop, instead relying on her 4 mother for that. 5 Procedurally, plaintiff applied for Title XVI 6 benefits on March 19, 2018. On page 150, she claims 7 disability based upon fibromyalgia, anxiety, depression, and 8 sleep apnea. A hearing was conducted on November 5, 2019 by 9 Administrative Law Judge Shawn Bozarth to address plaintiff's 10 application for benefits. ALJ Bozarth issued an unfavorable 11 decision on November 15, 2019. That became a final 12 determination of the agency on October 6, 2020 when the 13 Social Security Administration Appeals Council denied 14 plaintiff's request for review. This action was commenced on 15 December 8, 2020, and is timely. 16 In his decision, ALJ Bozarth applied the familiar 17 five-step sequential test for determining disability. 18 At step one he determined that plaintiff had not 19 engaged in substantial gainful activity since the date of her 20 application. 21 At step two he found that plaintiff suffers from 22 severe impairments that impose more than minimal limitations 23 on her ability to perform basic work functions, and 24 specifically fibromyalgia, depressive disorder, panic 25 disorder, cannabis disorder, sleep apnea, tarsal tunnel 1 syndrome, and bipolar disorder. 2 At step three, ALJ Bozarth concluded that 3 plaintiff's conditions do not meet or medically equal any of 4 the listed presumptively disabling conditions set forth in 5 the Commissioner's regulations, specifically considering 6 Listings 1.02, 12.04, and 12.06, as well as Social Security 7 Ruling 12-2p which addresses fibromyalgia. 8 After surveying the medical evidence in the record 9 and other evidence, ALJ Bozarth concluded that plaintiff 10 retains the residual functional capacity, or RFC, to perform 11 sedentary work as defined in the regulations, with additional 12 physical limitations not at issue in this case, as well as 13 the following mental limitations. The claimant is capable of 14 simple, routine, and repetitive tasks in low-stress jobs 15 which are jobs that are defined as goal-oriented and which do 16 not have an assembly line, piecework, or numerical production 17 quota pace, a job in which the individual is limited to 18 occasional decision making, occasional changes of workplace 19 setting, and occasional changes to workplace routine and a 20 job in which she has only occasional contact with 21 supervisors, coworkers, and customers. And based upon that 22 RFC, the administrative law judge determined, after 23 concluding at step four that plaintiff did not have any past 24 relevant work of sufficient duration or earnings to be 25 considered, concluded based upon the testimony of a 1 vocational expert that plaintiff is capable of performing 2 available work in the national economy, citing as 3 representative positions document preparer, lens inserter, 4 and final assembly. 5 As the parties are well aware, the court's function 6 in this case is to determine whether correct legal principles 7 were applied and substantial evidence supports the resulting 8 determination. As the Second Circuit noted in Brault v. 9 Social Security Administration Commissioner, 683 F.3d 443 10 from 2012, this is an extremely rigid -- Mr. Gorton, are you 11 there? 12 MR. GORTON: I am back, yes, somehow I got cut off, 13 I don't know if everybody else got cut off, but -- so I 14 called back. 15 THE COURT: All right. Well, I don't know where 16 you left off but I'll continue and you'll be receiving a 17 transcript of my determination. 18 MR. GORTON: It'll be fine, yeah. 19 THE COURT: So in Brault, the Second Circuit noted 20 that this is an extremely stringent standard, substantial 21 evidence being defined as such relevant evidence as a 22 reasonable mind would find sufficient to support a 23 conclusion. That is even more demanding than the clearly 24 erroneous standard. Significantly, the Circuit noted that 25 once the administrative law judge finds a fact, under this 1 deferential standard, the fact can be rejected only if a 2 reasonable fact finder would have to conclude otherwise. 3 In this case, plaintiff raises several contentions, 4 the focus being on plaintiff's mental condition. First, she 5 challenges the failure of the Appeals Council to consider 6 LCSW Kathleen Loftus' letter of April 28, 2020. Second, she 7 asserts that it was error committed in assessing plaintiff's 8 medical records and relying on his assessment for affixing 9 the RFC. Third, she challenges the weight assigned to 10 medical opinions issued by state agency consultant Dr. L. 11 Haus and Consultative Examiner Dr. Amanda Slowik. Fourth, 12 she challenges the social limitation as not supported, and 13 fifth, claims that the step five determination, which the 14 Commissioner bears the burden of proof of course, is flawed 15 based upon the hypothetical that is based upon a residual 16 functional capacity finding not supported by substantial 17 evidence. 18 The relevant period in this case of course is March 19 of 2018 to November 2019, although that does not necessarily 20 mean that records outside that date are wholly irrelevant. 21 Addressing the first argument, on April 28, 2020, 22 Therapist Kathleen M. Loftus issued a letter that is in the 23 record -- Mr. Gorton, are you there? Ms. Saad, are you 24 there? 25 MS. SAAD: I'm here, your Honor. 1 THE COURT: Let's wait a minute for Mr. Gorton to 2 call back. He should pay his phone bill. 3 MR. GORTON: I'm here, I'm here, I had it on mute, 4 I've been here. 5 THE COURT: It just sounded like somebody signed 6 off, but we'll continue. 7 MR. GORTON: It did, it sounded the same to me. I 8 was assuming that this time it was maybe the defendant's 9 attorney. But the first time, I didn't sign off by the way, 10 it just killed me, but this time I've been on, I just -- 11 doggone it, I put it on mute so I don't disturb and then I 12 forget. 13 THE COURT: Okay. 14 MR. GORTON: But I'm here. 15 THE COURT: Maybe the court should pay its phone 16 bill. All right. So addressing Therapist Loftus' opinion, 17 in that letter, she states, "As a psychotherapist, part of my 18 job is to be an agent of change, a beacon of hope for my 19 patients. I believe we all have the ability to change and 20 heal with motivation and support. It's just not easy." 21 Significantly she states, "In my opinion, Ms. H.'s mental 22 illness makes it impossible to participate in activities that 23 most people would say are normal, including working, at this 24 point in her treatment." 25 The Social Security Administration Appeals Council 1 said the following with regard to that letter, this is at 2 page 2 of the administrative transcript. The letter of 3 Therapist Loftus, by the way, is at page 6. "You submitted a 4 letter from Kathleen Loftus, LCSW-R, Family and Children's 5 Society, dated April 28, 2020 (1 page). The administrative 6 law judge decided your case through November 5, 2019. This 7 additional evidence does not relate to the period at issue. 8 Therefore it does not affect the decision about whether you 9 were disabled beginning on or before November 15, 2019." To 10 be properly considered, of course, it is well accepted new 11 evidence must be new, obviously, material, and must relate to 12 the period before the ALJ's decision. Lesterhuis v. Colvin, [13] 805 F.3d 83 from the Second Circuit, 2015. 14 I agree with plaintiff's counsel that the mere fact 15 that the letter postdates the administrative law judge's 16 decision by some six months, the mere fact alone does not 17 mean that it does not qualify as new evidence that must be 18 considered. Williams v. Commissioner of Social Security, 236 19 F.App'x 641 from the Second Circuit, 2007, and Pollard v. 20 Halter, 377 F.3d 183 from the Second Circuit, 2004. But 21 clearly, it must reflect in some way, shape, or form that it 22 relates to the period at issue. Anna G. v. Commissioner of 23 Social Security, 2021 WL 3721140 , Western District of 24 New York, August 23, 2021. 25 Aside from the fact that the therapist began 1 treating the plaintiff in March of 2018, it does not on its 2 face say anything to indicate that it relates to the period 3 in question. So I do not believe it was error or would be 4 error not to consider this letter, and even if it was, I 5 believe the error was harmless because the sentence that I 6 read, beginning with, "In my opinion," in my view, speaks to 7 a matter reserved to the Commissioner, specifically whether 8 the plaintiff is capable of working. 9 Turning to the next argument, whether the residual 10 functional capacity is supported and specifically whether the 11 medical treatment notes were properly evaluated by the 12 administrative law judge. A claimant's RFC represents a 13 finding of the range of tasks she is capable of performing, 14 notwithstanding her impairments. Specifically it ordinarily 15 represents a maximum ability to perform sustained work 16 activities in an ordinary setting on a regular and continuing 17 basis, meaning eight hours a day for five days a week, or an 18 equivalent schedule. Tankisi v. Commissioner of Social 19 Security, 521 F.App'x 29 at 33 , Second Circuit 2013. Of 20 course an RFC determination is informed by consideration of 21 all of the relevant and other medical evidence, all of the 22 other evidence, and must be supported by substantial 23 evidence. 24 In this case, the residual functional capacity is 25 fairly limited. Support for the RFC comes in the form of 1 treatment notes, although they are admittedly mixed. The 2 plaintiff, at pages 1 through 5 of her brief, has outlined 3 what she believes to be treatment records that support her 4 position. The defendant at pages 9 and 10 outlines many of 5 the same -- records from many of the same dates, and excerpts 6 that she believes supports her position. The administrative 7 law judge also relied on the opinions of Dr. Haus and 8 Dr. Slowik, as well as plaintiff's activities of daily 9 living. The crux is whether I can say that no reasonable 10 fact finder could find the RFC that the administrative law 11 judge did, based upon the evidence in the record. The 12 evidence is equivocal. There is something in it for both 13 sides, but I am unable to say that no reasonable fact finder 14 could have arrived at the same conclusion, based on the 15 evidence in the record. 16 The crux of this case really is in the evaluation 17 of medical opinions. This case of course was filed after 18 March of 2017, the application that is, and therefore is 19 subject to the new revised regulations that took effect at 20 that time. Under the new regulations, an ALJ does not defer 21 or give any specific evidentiary weight, including 22 controlling weight, to any medical opinions or prior 23 administrative medical findings, including those from a 24 claimant's medical sources, 20 C.F.R. Section 416.920c(a). 25 Instead, an ALJ must consider factors that are laid out in 1 the regulations. Among them, paramount are supportability 2 and consistency, although the other factors must be 3 considered. Under the regulations, the ALJ must articulate 4 how persuasive he found the medical opinion and explain how 5 he considered the supportability and consistency of the 6 opinions. The ALJ may, but is not required to, discuss the 7 other factors. 20 C.F.R. Section 416.920c(b). 8 In this case, the focus of the arguments are upon 9 the opinions of Dr. -- first of Dr. L. Haus, a state agency 10 consultant, who rendered an opinion on April 25, 2018, it 11 appears at Exhibit 1A, pages 52 to 66 of the administrative 12 transcript, and also at 410 to 411. In his opinion or her 13 opinion, Dr. Haus finds moderate limitations in many areas: 14 The ability to understand or remember detailed instructions, 15 the ability to carry out detailed instructions, the ability 16 to maintain attention and concentration for extended periods, 17 the ability to perform activities within a schedule, maintain 18 regular attendance and be punctual within customary 19 tolerances, the ability to work in coordination with or in 20 proximity to others without being distracted by them, the 21 ability to complete a normal workday and workweek without 22 interruptions from psychologically-based symptoms, and to 23 perform at a consistent pace without an unreasonable number 24 and length of rest periods, the ability to interact 25 appropriately with the general public, the ability to accept 1 instructions and respond appropriately to criticisms from 2 supervisors, the ability to respond appropriately to changes 3 in the work setting, the ability to travel in unfamiliar 4 places or use public transportation. In each of the 5 subdomains listed on the worksheet, when asked to explain in 6 narrative form the adaptation capacities and/or limitations, 7 the notation is made, "See below." In the mental RFC portion 8 of Dr. Haus' opinion, he or she recites what the medical 9 evidence shows and draws the conclusion, "Retains the mental 10 ability to complete simple work with occasional contact with 11 others. These findings complete the medical portion of the 12 disability determination." No explanation whatsoever as to 13 how he or she arrived at that conclusion, what the extent of 14 the limitations reflected in the worksheet was. In my view, 15 it is woefully lacking in explanation that would permit 16 meaningful review of Dr. Haus' opinion as to whether it's 17 supported. And so Jeaninne C. v. Andrew M. Saul, Docket 18 Number 19-CV-1176, civil action number, Docket Number 19, I 19 addressed a similarly deficient state agency consultant 20 opinion and ordered a remand for that reason, and I find that 21 it was error in this case because of the woeful deficiency. 22 In his decision, ALJ Bozarth found at page 20 that 23 Dr. Haus' opinion was significantly persuasive based on the 24 following: "The source has program knowledge. The doctor 25 provided a detailed supporting rationale," which he did not. 1 "And 3, this opinion is generally consistent with the 2 contemporaneous treatment notes, the claimant's reported 3 activities of daily living and her mental health treatment 4 course." 5 I do not find that that is a sufficient explanation 6 of the issue of either consistency or supportability. And I 7 note when relying on activities of daily living, the 8 plaintiff has fairly limited activities of daily living as 9 she reported to both Dr. Slowik and Dr. Jenouri and in my 10 view, what she is capable of doing in terms of activities of 11 daily living do not translate well into the ability to work 12 on a sustained basis in competitive employment and the ALJ 13 did not tell me otherwise as to how that bridge is gapped, or 14 that gap is bridged I guess is the correct term. She doesn't 15 take public transportation because of her anxiety, she 16 doesn't shop because of her anxiety, anxiety limits her from 17 leaving her house. She does care for her son and drop him 18 off at a nearby bus stop and pick him up, but in my view, 19 those don't necessarily translate well into competitive 20 employment capability. But the bottom line is, I don't 21 believe that the administrative law judge's analysis of 22 Dr. Haus permits meaningful judicial review. Raymond M. v. 23 Commissioner of Social Security, 2021 WL 706645 from the 24 Northern District of New York, it is February 22, 2021. 25 The -- in my view that error alone would warrant remand. 1 The second opinion at issue comes from Dr. Amanda 2 Slowik, it appears at pages 405 through 409, it was issued on 3 April 18, 2018. In her medical source statement, Dr. Slowik 4 finds, among other things, that claimant is limited in her 5 ability to interact adequately with supervisors, coworkers, 6 and the public to an extent that is described as moderately 7 to markedly. She also finds that the claimant is markedly 8 limited in her ability to sustain an ordinary routine and 9 regulate emotions, and concludes that these difficulties are 10 caused by distractibility, anxiety, and depression. In his 11 decision, ALJ Bozarth concluded that Dr. Slowik's opinion was 12 partially persuasive, finding that she has program knowledge, 13 was able to examine the claimant, but she -- he concluded 14 that the degree of severity assessed by this opinion is 15 greater than supported by claimant's activities of daily 16 living, I've already addressed that, and contemporaneous 17 treatment notes. 18 In my view, it's not sufficient, sufficiently 19 adequate to simply say it's in contemporaneous treatment 20 notes without further specificity. In my view, again, 21 Dr. Slowik, the administrative law judge's consideration of 22 Dr. Slowik's opinion is woefully deficient and does not 23 properly address supportability and consistency to an extent 24 that would permit meaningful review. I don't agree that the 25 opinion is vague, and I reject the Commissioner's argument 1 that was made in the brief but not pressed at -- acknowledge 2 that it was not pressed during argument, that Dr. Slowik's 3 opinion is not a medical opinion under the regulations that 4 are subject to the requirement of addressing supportability 5 and consistency. I've already said how I don't believe the 6 activities of daily living reflected, including in Dr. Slowik 7 and Dr. Jenouri's reports, show that plaintiff can work five 8 days a week eight hours a day. Pamela P. v. Saul, 2020 WL 9 2561106 from the Northern District of New York signed May 20, 10 2020, by my colleague Magistrate Judge Daniel J. Stewart, and 11 Coyle v. Commissioner of Social Security, 2018 WL 3559073 12 from the Northern District of New York, 2018, my colleague 13 Administrative Law Judge William Mitchell. 14 So I find error in the reliance on the activities 15 of daily living without specifying the relationship between 16 the ADLs relied on and plaintiff's ability to meet the mental 17 demands of competitive employment. I don't believe that the 18 ALJ's analysis of Dr. Slowik's opinion permits meaningful 19 judicial review. I find that the error is harmful because 20 Dr. Slowik's opinion is inconsistent with the RFC when it 21 comes to plaintiff's ability to maintain a schedule and stay 22 on task, and so I believe the matter should be remanded for 23 further consideration of the evidence. I do not find 24 persuasive proof of disability and therefore will order that 25 the Commissioner's determination be vacated and the matter be 1 remanded for further consideration. 2 Thank you both for excellent presentations, I hope 3 you have a good afternoon and the rest of your summer. 4 MR. GORTON: Thank you, your Honor. 5 MS. SAAD: Thank you, your Honor. 6 (Proceedings Adjourned, 2:58 p.m.) [25] 1 CERTIFICATE OF OFFICIAL REPORTER [3] 4 I, JODI L. HIBBARD, RPR, 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 15th day of July, 2022. [18] 19 /S/ JODI L. HIBBARD 20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter