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

MASON W.,

Plaintiff, v. Civil Action No. 3:18-CV-1383 (DEP)

ANDREW SAUL, Commissioner of Social Security,1

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

GORTON LAW FIRM PETER A. GORTON, ESQ. 1500 East Main St. PO Box 89 Endicott, NY 13761-0089

FOR DEFENDANT

HON. GRANT C. JAQUITH SIXTINA FERNANDEZ, 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, as the Acting Commissioner of Social Security, as the defendant. On June 4, 2019, Andrew Saul took office as 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 December 11, 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: December 16, 2019 Syracuse, NY

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF NEW YORK 3 4 MASON W., ) ) 5 Plaintiff, ) CASE NO. 3:18-CV-1383 ) 6 vs. ) ) 7 ANDREW SAUL, ) ) 8 Defendant. ) ) 9 10 TRANSCRIPT OF TELEPHONIC PROCEEDINGS BEFORE THE HON. DAVID E. PEEBLES 11 WEDNESDAY, DECEMBER 11, 2019 SYRACUSE, NEW YORK 12 13 FOR THE PLAINTIFF: Lachman, Gorton Law Firm 14 By: Peter A. Gorton, Esq. 1500 East Main Street, PO Box 89 15 Endicott, New York 13761-0089

16 17 FOR THE DEFENDANT: Social Security Administration 18 Office of Regional General Counsel, Region II By: Sixtina Fernandez, Esq. 19 26 Federal Plaza, Room 3904 New York, New York 10278 20 21 22 23 THERESA J. CASAL, RPR, CRR, CSR Federal Official Court Reporter 24 445 Broadway, Room 509 Albany, New York 12207 25 1 THE COURT: All right. Thank you both for 2 excellent presentations. This was an interesting case, I 3 enjoyed working on it with you. 4 I have before me a request by the plaintiff for 5 judicial review of an adverse determination by the 6 Commissioner of Social Security pursuant to 42 United States

7 Code Sections 405(g) and 1383(c)(3). 8 The background is as follows: The plaintiff was 9 born in August of 1970 and is currently 49 years old. He 10 was 39 years of age at the alleged onset of his disability 11 on September 8, 2009, and 43 when he made application for 12 benefits in September of 2013. He stands between 5 foot 11 13 and 6 foot in height and weighs between 145 and 155 pounds. 14 He lives in a half-house in Binghamton, New York, with his 15 girlfriend, a nephew and niece-in-law and two young 16 children, who, at the time of the hearing in this matter, 17 were ages 1 and 4. 18 Plaintiff quit school in or after the eighth grade 19 but obtained a GED in 2000. Plaintiff has no driver's 20 license. He is right-handed. Plaintiff has not worked 21 since September of 2009 when he experienced a bike accident 22 when his bike hit a pothole. Past relevant work includes as 23 a cook, a cook prep and a dishwasher in a restaurant from 24 August of 2005 to September of 2009 and in 2003 in a

25 seasonal landscaping position. Plaintiff apparently was 1 incarcerated at some point until August of 2005. 2 Medically, plaintiff suffered a bike accident, as 3 I indicated, in September 2009, resulting in experiencing 4 pain and numbness into his legs and a situation that was 5 progressively worse and, according to him, produces daily 6 pain.

7 He has been diagnosed as having chronic DDD, 8 degenerative disk disease, in both cervical and lumbar L5/S1 9 regions of his spine. Plaintiff suffers from other 10 conditions but denied that he has any resulting limitations 11 that would affect his ability to perform work functions. 12 It was noted that plaintiff fell down the stairs 13 in 1995, that's at 234, and that that might have caused or 14 added to his back issues. 15 He has treated with Dr. Matthew Benett at Tier 16 Orthopedic Associates and at Lourdes Center for Family 17 Health beginning in September of 2008 with Family Nurse 18 Practitioner Brandy Benjamin, Physician's Assistant Paul 19 Hodgeman, H-O-D-G-E-M-A-N. He has been prescribed various 20 medications including Celobrex, Hydrocodone, Tramadol, 21 Gabapentin, Norflex injections, Flexeril, Cataflam and 22 Oxycodone. As counsel indicated, he had an emergency 23 department visit in May of 2016 with back pain and the 24 impression, at 568, concerning that visit was severe

25 degenerative disc disease at L5/S1. 1 Plaintiff has undergone several lumbar and 2 cervical MRIs. In July of 2010, at page 284 and 285, the 3 results showed central spinal stenosis due to broadbased 4 disc herniation as well as encroachment of the neural 5 foramen due to the bulging disc material in the right side 6 grossly unaltered. L5/S1 level again shows a milder disc

7 bulging in the central spinal canal but persistent right 8 neural foraminal encroachment at this level as well. It 9 also showed borderline congenital stenosis of the lumbar 10 spinal canal diffusely, superimposed mild acquired stenosis 11 of the canal at the L4/L5 level, moderate stenosis of the 12 neural foramina bilaterally at the L4/L5 level and probable 13 mild mass effect on both exiting nerve roots and moderate 14 stenosis of the left neural foramen at L5/S1 with probable 15 mild mass effect on the nerve root, mild to moderate right 16 foraminal stenosis at L5/S1, but no evidence of a fracture. 17 Mild retrolisthesis at L4/L5 and L5/S1. 18 Subsequent MRI testing on March 11, 2013, 19 reflected multiple degenerative discs, at 249 and 250 of the 20 administrative transcript. Also noted degenerative changes 21 of the lumbar spine as described above and it's saliently at 22 L5/S1. It was noted that there is prominent degeneration of 23 the disc with generalized bulging of the annulus and a 24 superimposed broad left lateral disc protrusion. The

25 results found to be borderline congenital stenosis of the 1 lumbar spinal canal diffusely, superimposed mild acquired 2 stenosis of the canal at the L4/L5 level, moderate stenoses 3 of the neural foramina bilaterally at the L4/L5 level, with 4 probable mild mass effect on both exiting nerve roots, 5 moderate stenosis of the left neural foramen at L5/S1 with 6 probable mild mass effect on the nerve root, mild to

7 moderate right foraminal stenosis at L5/S1. Again no 8 evidence of fracture, and mild retrolisthesis at L4/L5 and 9 L5/S1. 10 There was an additional lumbar MRI testing on 11 December 24, 2004, at pages 290 and 291, the results 12 showing, among other things, circumferential disc bulge and 13 additional left paracentral posterior disc protrusion at 14 L5/S1 results in effacement of the left lateral recess and 15 narrowing of the neural foramina, greater on the left. It 16 also shows circumferential disc bulge and broadbased 17 posterior disc protrusion at L4/L5 resulting in bilateral 18 ventral effacement of the lateral recesses and mild to 19 moderate central spinal canal stenosis, as well as mild to 20 moderate narrowing of the neural foramina. 21 Testing on June 25, 2014, of plaintiff's cervical 22 spine resulted, at 290, with a finding of spondylosis 23 changes most prominent at C4/C5 but no evidence of fracture. 24 The plaintiff's activities of daily living include

25 some cooking, shopping with help, no laundry, showering, 1 dressing, child care, watching television, listening to the 2 radio and enjoying art. 3 Plaintiff is a smoker, he smokes one pack per day, 4 that's at 330, 572, 630 and 238 of the administrative 5 transcript. 6 Procedurally, plaintiff applied for Title XVI

7 Supplemental Security Income payments protectively on 8 September 6, 2013, alleging an onset date of September 8, 9 2009. He claimed disability due to chronic back pain with 10 radiculopathy symptoms, degenerative disc disease, thoracic 11 spondylosis and T11 compression fracture, that's at 172. 12 Can I interrupt? Mr. Gorton, you're breathing a 13 little heavily and you're making me cut out, I think, for 14 the court reporter. 15 MR. GORTON: Okay. I'll move away. 16 THE COURT: Hold your breath. On November 17, 17 2015, a hearing was conducted by Administrative Law Judge 18 Elizabeth W. Koennecke, K-O-E-N-N-E-C-K-E. Judge Koennecke 19 issued a decision on December 4, 2015, that was unfavorable 20 to the plaintiff. The Social Security Administration 21 appeals counsel denied plaintiff's request for a review on 22 March 27, 2017. 23 After a proceeding was commenced in this court by 24 the plaintiff, the matter was remanded on consent to the

25 agency on October 2, 2017. That was followed by Social 1 Security Administration appeals counsel remand order issued 2 on December 19, 2017, making certain observations and giving 3 instructions to the Administrative Law Judge. 4 A second hearing was conducted on August 15, 2018, 5 and a decision was issued on September 21, 2018, again by 6 Administrative Law Judge Koennecke, concluding that

7 plaintiff was not disabled at the relevant times. 8 In her decision, Administrative Law Judge 9 Koennecke applied the five step familiar test for 10 determining disability. She concluded at Step One that 11 plaintiff had not engaged in substantial gainful activities 12 since the date of his application. 13 At Step Two, she concluded that plaintiff suffered 14 from severe impairment that imposed more than minimal 15 effects on the limitations on his capability to perform 16 basic work activities, including degenerative disc disease 17 of the cervical and lumbar spine. 18 At Step Three she concluded, however, that these 19 conditions did not meet or medically equal any of the listed 20 presumptively disabling conditions set forth in the 21 Commissioner's regulations, specifically considering listing 22 1.04. 23 She next surveyed the medical evidence and 24 concluded that notwithstanding his condition, plaintiff

25 has Residual Functional Capacity, or RFC, to lift or carry 1 20 pounds occasionally and 10 pounds frequently, sit six 2 hours in an eight-hour day, stand and/or walk six hours in 3 an eight-hour day, occasional stoop but never crawl. She 4 further provided that he requires a job that permits him the 5 ability to change positions approximately every hour for a 6 brief stretch break while remaining on task.

7 Applying that RFC, ALJ Koennecke concluded that 8 plaintiff is unable to perform his past relevant work. She 9 did conclude, however, based on the testimony of a 10 vocational expert and after noting that if plaintiff was 11 able to perform a full range of light work, Rule 202.20 of 12 the Medical Vocational Guidelines of the Commissioner, or 13 the grid, direct the finding of no disability. She 14 concluded that plaintiff is capable of performing work in 15 the national economy as a marker, a router and a garment 16 sorter and noted that that was a representative sampling of 17 jobs that would be available to the plaintiff to perform 18 based on his RFC. 19 As you know, the standard that I must apply is 20 extremely deferential and requires me to determine whether 21 correct legal principles were applied and the determination 22 is supported by substantial evidence, which is defined as 23 such evidence as a reasonable mind might accept as adequate 24 to support a conclusion.

25 It was noted by the Second Circuit Court of 1 Appeals in Brault versus the Social Security Administration, 2

, that's the pincite, a case from the 3 Second Circuit in 2012, that "the substantial evidence 4 standard means once an ALJ finds facts, we can reject those 5 facts only if a reasonable factfinder would have to 6 concludes otherwise."

7 In this case, the issues raised by the plaintiff 8 as articulated in both his brief and oral argument are 9 several. The Residual Functional Capacity is not supported 10 by competent evidence; the challenges to the RFC 11 determination with regard to walking, standing, sitting, 12 lifting, carrying and squatting, as well as the requirement 13 of changing positions more frequently and every hour. 14 Relatedly, the plaintiff argues that the Administrative Law 15 Judge substituted her lay opinion for contrary and 16 uncontradicted medical opinions. 17 He raises a due process argument based on 18 ALJ Koennecke's comments concerning her prior experience 19 with Dr. Wiesner, W-I-E-S-N-E-R. There is an error assigned 20 regarding the limited weight given to Dr. Magurno's 21 consultative examination results after granting significant 22 weight to that opinion in her earlier decision. He argues 23 that the sit/stand for one hour finding is unsupported, 24 again arguing that it should be more frequently.

25 The attendance and on task opinions are also 1 challenged and, of course, the Step Five determination, 2 which hinges on whether or not the Residual Functional 3 Capacity is supported by substantial evidence. 4 In this case, the -- again, the issues regarding 5 RFC include sit, stand and walk, changing positions and off 6 task and absences. The focus of plaintiff's argument is on

7 the sit, stand and walk. 8 In Exhibit 2F, Dr. Wiesner noted that plaintiff, 9 on July 26, 2013, has significant limitations in lifting, 10 carrying, sitting and standing. In 7F, Dr. Wiesner, on 11 July 26, 2014 -- it looks like 2014, it's a little difficult 12 to read -- opined that plaintiff can sit, stand and walk for 13 less than two hours, requires a sit/stand option with a 14 change in positions every ten minutes, would be -- predicted 15 to be absent three times per month, has marked limitation on 16 ability to sustain work pace. 17 At 5F Dr. Magurno, the consultative examiner 18 retained by the Commissioner, on November 18, 2013, opined 19 that plaintiff has marked limitations in walking, standing 20 and sitting, among others. Nurse Practitioner Brandy 21 Benjamin, on June 14, 2018, at 17F, noted that plaintiff 22 would be off task more than 33 percent and absent more than 23 four times per month and noted that plaintiff can sit for 24 only four hours, walk for one hour and must change positions

25 every 15 minutes. 1 Plaintiff, in his testimony, indicated that he has 2 to stand -- he can only stand 15 minutes before he's 3 required to change positions, that's at page 44, and that 4 he can stand 30 minutes at a time, that's at 186, and sit 5 20 minutes before he has to change positions, that's at 187. 6 The Residual Functional Capacity, obviously, is grossly

7 different than all of these unanimous opinions, finding that 8 plaintiff can sit, stand and walk for six hours and must 9 change positions only every hour. 10 Medical opinions are subject to evaluation 11 pursuant to 20 CFR Section 416.927. The factors there are 12 outlined in that regulation as to how they're to be 13 construed. Agreed that there is no requirement that the ALJ 14 had to accept the consultative opinion of Dr. Magurno, 15 Pellam versus Astrue,

, Second Circuit, 2013. 16 However, it's clear the ALJ cannot pit his or her expertise 17 against medical opinions and that an ALJ is not qualified to 18 assess limitations based on medical records. 19 It's well established, at least in this Circuit, 20 including Balsamo -- and I have the cite at my fingertips -- 21 against Chater; Sheri S. versus Berryhill, which is a 22 decision from this court, in 2019, found at

. 23 It is from Magistrate Judge Stewart, on March 29, 2019, 24 where he indicated, citing Greek versus Colvin,

25 802 Fed 3d 370, that an ALJ is not permitted to substitute 1 her own expertise or a view of the medical proof for a 2 treating physician's opinion or any competent medical 3 opinion. It is undoubtedly true that an Administrative Law 4 Judge is free to resolve issues and weigh competing medical 5 opinions, and it's also true that in limited situations 6 where impairments are relatively simple and mild, an ALJ may

7 be able to render a common sense judgment about functional 8 capacity even without a physician's assistance. I'm sorry, 9 without a physician's assessment. 10 In this case, there is, like there was in 11 Sheri S., a significant, what I would consider a relatively 12 high degree, of impairment. The medical evidence, including 13 the MRI results that I read earlier, are significant and 14 complicated and do not present the type of simple case 15 that is contemplated in that limited line of cases. So we 16 fall into the category where evidence must be overwhelming 17 to overcome uncontradicted medical opinions. And there 18 were a couple of cases cited by the plaintiff, including 19 Mcbrayer versus Secretary of Health and Human Services, 20

, which goes to that proposition, and also 21 Giddings versus Astrue,

and cite to 22 Balsamo -- I lost it again -- Balsamo versus Chater, by the 23 way, is

. 24 So, in this case, I might agree that the ALJ's

25 rejection of the opinions regarding being off task and 1 absenteeism are speculative, there isn't anything that 2 really correlates what he experiences with why he might be 3 absent, and so I think based on a couple of cases that have 4 been cited, including Smith v. Berryhill,

, 5 from the Second Circuit, 2018, it was proper to reject that. 6 Also Kenneth S. versus Commissioner of Social Security,

7

, from this court, Mr. Gorton's case, I 8 believe, from 2019. And I note that Dr. Magurno didn't 9 observe any limitations in the ability to perform, in terms 10 of workdays and absenteeism, at 232. The problem I have is 11 the sit, stand and walk. Dr. Magurno cited marked 12 limitations. 13 The Social Security appeals counsel, at page 482, 14 was critical of the Administrative Law Judge's first 15 decision for not explaining how she reached her conclusions. 16 The change of position was also problematic. Dr. Magurno's 17 decision is silent on that, but plaintiff's testimony, 18 Dr. Wiesner's opinions, Nurse Practitioner Benjamin all 19 suggest that a change is required every 10 to 15 minutes. 20 All three positions that were identified by the vocational 21 expert are in the light work category, which requires a 22 great deal of walking and standing, that's at 20 CFR Section 23 404.1567(a), and so the error, I find, is significant. 24 I do reject the due process argument. It would be

25 helpful if Administrative Law Judges wouldn't use the type 1 of -- paint with the type of broadbrush that she apparently 2 did with regard to Dr. Wiesner's opinions, but she did also 3 provide other reasons for discounting Dr. Wiesner's opinion. 4 But -- and I also agree with the plaintiff that the 5 difference by Judge Koennecke, the same exact Administrative 6 Law Judge, in the treatment of Dr. Magurno's opinions, which

7 were given significant weight in decision number one, at 8 page 16, but limited weight in number two, page 425, exposes 9 a measure of arbitrariness. 10 So I conclude that the Administrative Law Judge 11 did not properly formulate the Residual Functional Capacity 12 and did not properly substitute her judgment for the 13 uncontradicted determinations of medical personnel when it 14 came to sitting, standing and walking, as well as a need to 15 change positions. The Commissioner, therefore, did not 16 carry his burden at Step Five, because the hypothetical 17 posed to the vocational expert was based upon a faulty 18 Residual Functional Capacity determination. 19 Much as I would like to send this case back with a 20 directed finding of disability in light of the age of the 21 case, I'm not prepared to do that at this time. I still am 22 not convinced that there is such persuasive evidence of 23 disability that a directed finding is required. So I will 24 return the matter to the Commissioner for further

25 proceedings consistent with this opinion. 1 Thank you all, and I hope you have happy holidays. 2 MS. FERNANDEZ: Thank you, your Honor. 3 MR. GORTON: Thank you, your Honor. 4 (This matter adjourned at 2:38 PM.) 5 - - - - - 6

7 CERTIFICATION OF OFFICIAL REPORTER 8 9 10 I, THERESA J. CASAL, RPR, CRR, CSR, Official 11 Realtime Court Reporter, in and for the United States 12 District Court for the Northern District of New York, do 13 hereby certify that pursuant to Section 753, Title 28, 14 United States Code, that the foregoing is a true and correct 15 transcript of the stenographically reported proceedings held 16 in the above-entitled matter and that the transcript page 17 format is in conformance with the regulations of the 18 Judicial Conference of the United States. 19 20 Dated this 12th day of December, 2019. 21 22 /s/ THERESA J. CASAL 23 THERESA J. CASAL, RPR, CRR, CSR 24 FEDERAL OFFICIAL COURT REPORTER

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