IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

THERESA B., Plaintiff, v. Civil Action No. 3:18-CV-1211 (DEP) ANDREW M. SAUL, Commissioner of Social Security,1

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF:

LACHMAN, GORTON LAW FIRM PETER A. GORTON, ESQ. P.O. Box 89 1500 Main Street Endicott, NY 13761-0089

FOR DEFENDANT:

HON. GRANT C. JAQUITH DANIEL S. TARABELLI, ESQ. United States Attorney for the Special Assistant U.S. Attorney Northern District of New York P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198

1 Plaintiff=s complaint named Nancy A. Berryhill, in her capacity as the Commissioner of Social Security, as the defendant. On June 4, 2019, Andrew Saul took office as the Social Security Commissioner. He 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, pursuant to 42 U.S.C. '' 405(g) and 1383(c)(3), are cross- motions for judgment on the pleadings.2 Oral argument was conducted in

connection with those motions on October 29, 2019, 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

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. 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

(g) and closing this case.

U.S. Magistrate Judge

Dated: November 1, 2019 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x THERESA B.,

Plaintiff,

vs. 3:18-CV-1211

ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on October 29, 2019, at the James Hanley Federal Building, 100 South Clinton Street, Syracuse, New York, 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 1500 East Main Street Endicott, New York 13761-0089 BY: PETER A. GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of the General Counsel 15 Sudbury Street Suite 625 Boston, Massachusetts 02203 BY: DANIEL STICE TARABELLI, 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 (In Chambers, Counsel present by telephone.) 2 THE COURT: Plaintiff has commenced this action 3 pursuant to

(g) and 4 1383(c)(3), to challenge the determination of the 5 Commissioner of Social Security that plaintiff was not 6 disabled at the relevant times and therefore ineligible for 7 the benefits sought. 8 The background is as follows: Plaintiff was born 9 in October of 1974 and is currently 45 years old. She was 34 10 years old at the alleged onset of her disability in 11 February 2009, and 42 years old at the time of the hearing in 12 this matter in June of 2017. The plaintiff is somewhere 13 between 5 foot 6 inches and 5 foot 8 inches in height, 14 depending on where in the record you look, page 63 and 385 15 have differing heights recorded. They also had differing 16 weights, 200 to 205 pounds, although plaintiff testified that 17 her weight fluctuates. She's right-handed. She has a high 18 school diploma and attended regular classes in school. 19 Plaintiff has a driver's license but testified she does not 20 drive due to anxiety, that's at page 393 and 405. During the 21 hearing, at page 84, she characterized what she has as a 22 learner's permit. Plaintiff lives in a house in Vestal with 23 five children, and has another that lives elsewhere, also 24 lives with her mother-in-law and one grandson. That's at 25 pages 75, 291, 292, 390, and 406. Her husband is, or was at 1 the time of the hearing, incarcerated. 2 Plaintiff has a work history that includes working 3 as a customer service representative for Verizon from 4 July 1995 to December 2007. She took a severance package to 5 end that employment, that's at page 292. She then began 6 working as a stock person in Big Lots. She was fired from 7 that position for excessive absenteeism, that's at 292, 390, 8 and 406. 9 Physically, plaintiff suffers from bad back, chest 10 pains related to her anxiety, sleep issues, left knee pain, 11 neck pain, and GERD. She has not, however, undergone any 12 orthopedic treatment. 13 Mentally, plaintiff suffers from anxiety disorder, 14 post-traumatic stress disorder, panic disorder, and 15 adjustment disorder with depressed mood. She testified that 16 she experienced panic attacks three to five times per week, 17 that's at page 71. She has had several emergency room visits 18 for panic attacks, that's referenced at page 390. Plaintiff 19 originally had as a primary physician Dr. Brian Menichello. 20 After he retired she began treating with Dr. John Welch. She 21 has also seen Licensed Clinical Social Worker Kathleen 22 DiFulvio-Kaepplinger, but testified that she has a problem 23 because that office does not accept her insurance, that's at 24 page 83. 25 In terms of medications, plaintiff has been 1 prescribed Wellbutrin, Klonopin, clonazepam, and Cymbalta. 2 In terms of activities of daily living, plaintiff 3 does care for her hygiene but needs someone to be with her in 4 the bathroom when she takes showers due to her anxiety. 5 That's at page 293 and 391. She cooks, she cleans, she does 6 laundry with help, she testified she stays in the same 7 clothes for several days sometimes due to her condition. She 8 watches television, she plays on her telephone. Plaintiff is 9 a smoker, she smokes one pack of cigarettes per day. 10 Procedurally, plaintiff applied for Title II and 11 Title XVI benefits on January 27, 2015. It was noted that 12 she had made earlier applications and those were denied. The 13 final denial came on March 6, 2012. Plaintiff alleged an 14 onset date of February 10, 2009, and in support of her claim 15 of disability, she asserted that she suffers from panic 16 attacks, anxiety, depression, PTSD, and GERD. 17 Administrative Law Judge Bruce Fein conducted an 18 administrative hearing on June 20, 2017 to address 19 plaintiff's applications. ALJ Fein issued an unfavorable 20 decision on August 15, 2017. That became a final 21 determination of the Commissioner on August 31, 2018 when the 22 Social Security Administration Appeals Council denied 23 plaintiff's request for review. 24 In his decision, ALJ Fein applied the five-step 25 sequential test for determining disability that we are all 1 familiar with. He first noted that the earliest disability 2 date based on the earlier denials could be March 7, 2012. 3 After concluding that plaintiff's last date of insured status 4 was September 30, 2015, he concluded at step one plaintiff 5 had not engaged in substantial gainful activity since 6 March 7, 2012. 7 At step two, he concluded that plaintiff suffers 8 from severe impairments that impose more than a minimal 9 limitation on her ability to perform basic work functions, 10 including anxiety disorder, PTSD, panic disorder, and 11 adjustment disorder with depressed mood. 12 At step three, ALJ Fein concluded those did not 13 meet or medically equal the listed presumptively disabling 14 conditions set forth in the Commissioner's regulations, 15 specifically including 12.04, 12.06, and 12.15. 16 After surveying all of the evidence, ALJ Fein 17 concluded that plaintiff retains the ability to perform a 18 full range of work at all exertional levels, subject to the 19 following limitation: The claimant is capable of low stress 20 work defined as occasional decision making, changes in the 21 work setting, judgment required, and occasional interaction 22 with coworkers, supervisors, and the public. 23 Applying that RFC finding, ALJ Fein concluded at 24 step four plaintiff is unable to perform her past relevant 25 work because it requires interaction with the public. 1 At step five, ALJ Fein applied the Medical 2 Vocational Rules or the Grids set forth in the Commissioner's 3 regulations and concluded that plaintiff is able to meet the 4 demands of competitive, remunerative, unskilled work and 5 therefore is not disabled. 6 As you know, my task is limited, the scope of 7 review that I apply is extremely deferential, and I must 8 determine whether correct legal principles were applied and 9 the determination is supported by substantial evidence. The 10 Second Circuit has indicated in its decision in Brault that 11 any finding of fact by the Commissioner can be overturned 12 only if a reasonable fact finder would have to conclude 13 otherwise. 14 I, despite the fact that the emphasis really of 15 oral argument was not on this point, I looked first at step 16 five and the application of the Grids. Tellingly, step five 17 is a step where the Commissioner bears the burden of proof; 18 the burden of proving the existence of jobs in the national 19 economy in sufficient numbers that the plaintiff is capable 20 of performing notwithstanding her limitations. It is, it is 21 proper to use the Grids if the nonexertional limitations do 22 not significantly erode the job base on which the Grids are 23 based. An ALJ cannot rely on the Grids if there is more than 24 a negligible impact on the ability to perform a full range of 25 work. The Second Circuit has held that in Selian v. Astrue, 1

, Second Circuit decision from 2013. 2 In this case, the administrative law judge limited 3 plaintiff to low stress work and occasional decision making, 4 changes in work setting, and judgment required, and 5 significantly, only interaction -- only occasional 6 interaction with coworkers, supervisors, and the public. SSR 7 85-15 provides that the basic mental demands of competitive, 8 remunerative, unskilled work include the abilities on a 9 sustained basis to understand, carry out, and remember simple 10 instructions, to respond appropriately to supervision, 11 coworkers and usual work situations and to deal with changes 12 in a routine work setting. The Commissioner has cited, and I 13 agree with, the finding of Schneider that the limitation on 14 the ability to handle a reasonable level of stress in a 15 stable and unchanging work environment is consistent with the 16 demands of unskilled work, which includes the ability to 17 change -- to deal with changes in a routine work setting. 18 The problem I have is the question of whether plaintiff can 19 respond appropriately to coworkers, given the limitation of 20 occasional interaction with coworkers, supervisors, and the 21 public. 22 I was persuaded by this court's decision in 23 Provost, which is unreported but it's found at

12472551, that the finding that a plaintiff is limited to low 25 stress work environment involving only occasional interaction 1 with coworkers, as the court found, is indicative of a 2 substantial loss of ability to meet a basic work-related 3 activity, namely the ability to respond appropriately to 4 coworkers. 5 The -- and I looked very carefully at the cases 6 cited by the Commissioner, including particularly Buschle v. 7 Astrue,

. In that case, there was -- that case 8 I believe is distinguishable because in that case the 9 consultative examiner, Dr. Noia, found that the plaintiff's 10 ability to interact with supervisors and coworkers was only 11 mildly impaired. In this case we have the contrary. 12 Dr. Welch, for example, found a marked inability to get along 13 with coworkers. Dr. Krantweiss opined that plaintiff cannot 14 meet employment, competitive employment standards in working 15 in coordination with others. LCSW DiFulvio-Kaepplinger found 16 marked limitation in ability to respond appropriately to 17 supervisors. 18 In my view, given the RFC finding, even if the RFC 19 finding is correct, the Grids were inappropriately used, and 20 there should have been vocational expert testimony to 21 determine whether plaintiff can meet the competitive demands 22 of unskilled work. 23 In this case, the second argument being raised by 24 the plaintiff has to do with the residual functional capacity 25 finding. The burden of course at this stage is upon the 1 plaintiff, we know that from Poupore, the Second Circuit's 2 decision. The focus of the RFC is on the ability to perform 3 on a regular basis so under SSR 96-8p, it is provided as 4 follows: Ordinarily RFC is an assessment of an individual's 5 ability to do sustained work-related physical and mental 6 activities in a work setting on a regular and continuing 7 basis. A regular and continuing basis means eight hours a 8 day for five days a week or an equivalent work schedule. 9 In this case, the evidence is to the contrary. 10 Dr. Harding, a nonexaminer, who did review some of 11 plaintiff's records, found a moderate limitation in that, in 12 that area, at page 103. It's a phrase, moderate is not 13 defined or explained, it relies on the FOFAE. It's unclear 14 whether -- who wrote that, but in any event, under Curry v. 15 Apfel, Second Circuit decision, the use of the term 16 moderately is vague. But in any event, Dr. Harding did find 17 a significant limitation in workplace attendance. 18 LCSW DiFulvio-Kaepplinger found marked to severe 19 psychiatric symptoms that would significantly interfere with 20 the ability to work in any capacity, at page 294, and an 21 extreme limitation in the ability to complete normal workday, 22 marked limitation in the ability to perform within a schedule 23 and to maintain regular attendance, that's at page 296. 24 Dr. Welch concluded that plaintiff would likely be 25 absent more than three days per month, that's at 380. 1 Dr. Slowik, consultative examiner, found a marked 2 limitation in the ability to maintain a regular schedule, 3 that's at 393. Significantly, the administrative law judge 4 afforded Dr. Slowik's opinion great weight at page 22, yet 5 the ALJ did not account for this limitation set forth in 6 Dr. Slowik's opinion. 7 Dr. Krantweiss found that plaintiff would be absent 8 more than four times per week. I noted that this is 9 consistent with plaintiff's past history of anxiety and note 10 that plaintiff, as I indicated previously, was fired from Big 11 Lots for excessive absenteeism. 12 So in my view, in Gavazzi, the Second Circuit has 13 said, to overcome unanimous -- basically these are unanimous 14 medical opinions, the evidence to the contrary has to meet 15 the overwhelmingly compelling standard. In this case, in my 16 view the medical opinion evidence is unanimous on plaintiff 17 having a moderate to marked limitation on her ability to 18 maintain work pace and attendance as required. I do not find 19 that the evidence to the contrary is overwhelmingly 20 compelling. 21 I do not find persuasive evidence of disability, 22 and so I decline to direct a finding of disability, but I do 23 find that plaintiff is entitled to judgment as a matter of 24 law, vacating the Commissioner's determination and remanding 25 the matter for further proceedings. 1 Thank you both for excellent presentations, I 2 enjoyed working with you and this was an interesting case. 3 Hope you have a good afternoon. 4 MR. GORTON: Thank you, your Honor. 5 (Proceedings Adjourned, 3:37 p.m.) 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, 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 30th day of October, 2019. 17 18 19 /S/ JODI L. HIBBARD

20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25