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

HEATHER K.,

Plaintiff, Civil Action No. 5:19-CV-0462 (DEP) v.

ANDREW M. SAUL, Commissioner of Social Security,1

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LEGAL AID SOCIETY OF MID-NEW ELIZABETH V. KRUPAR, ESQ. YORK, INC. Syracuse Office 221 South Warren Street, Suite 310 Syracuse, NY 13202

1 Plaintiff=s complaint named Nancy A. Berryhill, in her capacity 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). FOR DEFENDANT

HON. GRANT C. JAQUITH KEVIN PARRINGTON, ESQ. United States Attorney Special Assistant U.S. Attorney P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198

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, pursuant to

(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.2 Oral argument was heard in connection with those motions on April 29, 2020, 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

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. 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 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) Theclerk is respectfully directed to enter judgment, based

upon this determination, DISMISSING plaintiff's complaint in its entirety. chu Aaltr David E. Peebles U.S. Magistrate Judge

Dated: May 8, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x HEATHER K., Plaintiff, -v- 5:19-CV-462 ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES April 29, 2020 100 South Clinton Street, Syracuse, New York For the Plaintiff: (Appearance by telephone) LEGAL AID SOCIETY OF MID-NEW YORK, INC. 211 South Warren Street Suite 310 Syracuse, New York 13202 BY: ELIZABETH V. KRUPER, 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: LUIS PERE, 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 counsel present by telephone. Time 2 noted: 11:29 a.m.) 3 THE COURT: Plaintiff has commenced a proceeding 4 under

(g) and 1383(c)(3) to 5 challenge a determination by the Commissioner of Social Security 6 finding that plaintiff was not disabled at the relevant times

7 and therefore ineligible for the benefits for which she applied. 8 The background of this matter is as follows: 9 Plaintiff was born in January of 1977. She is currently 10 43 years of age. She was 38 years old at the alleged onset date 11 of her disability of January 1, 2015, and 39 years old at the 12 time she applied for benefits in February of 2016. Plaintiff 13 lives in Oneida in an apartment by herself. She has children 14 outside the home who, in May of 2016, were ages 17, 19, and 22. 15 She is currently separated from her husband. The apartment in 16 which she lives is a second floor apartment requiring her to 17 climb stairs. 18 Plaintiff stands 5'8" in height and weighs somewhere 19 approximately between 130 and 136 pounds. She is right-handed. 20 Plaintiff has a driver's license but no car. She has a 9th 21 grade education and a GED. While in school, she was in regular

22 classes. 23 Plaintiff stopped working in September of 2015 24 according to page 180 of the Administrative Transcript. It 25 appears that may have been a temporary job. She claims at page 1 181 that she has been unable to work since February 2, 2016. 2 Her past work includes working for T-Mobile, a communications 3 company; working in a Fastrac convenience store in 2010; various 4 food preparation positions; and a fieldworker in September 2014. 5 Plaintiff testified that she has made no effort to find work 6 since she moved to New York from Texas in or about 2014. That

7 is found at page 59 of the Administrative Transcript. 8 Medically, plaintiff has an extensive record of 9 medical treatment, both for physical and for mental impairments. 10 She suffered a motor vehicle accident in December of 2005 and 11 suffered a right foot injury, specifically a calcaneus fracture, 12 as well as a left leg laceration. She has had multiple 13 surgeries, her first occurred in January of 2006 by Dr. Daniel 14 Di Christina and it was an open reduction/internal fixation of 15 the right calcaneus area. She has had many other surgeries 16 since that time, including in 2007 and 2008. 17 The plaintiff also has cervical spinal issues, 18 specifically including at C5 and C6 level. She underwent a 19 cervical discectomy with fusion at that level in December of 20 2016. There were magnetic resonance imaging testing performed 21 in June of 2016, at page 2239 and 2240 of the Administrative

22 Transcript, and again in June of 2017, reflected at 2250 of the 23 Administrative Transcript. The cervical issues have been 24 addressed by Dr. Rudolph Buckley. As I indicated before, the 25 foot issues have been addressed by Dr. Di Christina. Plaintiff 1 also suffers from COPD and arthritis. 2 Mentally, plaintiff suffers from depression, anxiety, 3 posttraumatic stress disorder, bipolar disorder, and a 4 borderline personality disorder. She was hospitalized in 5 Missouri in 2010 for, among other things, cutting herself and 6 Oswego in 2006 twice. She receives counseling through the

7 Family Counseling Services of Cortland County. 8 Plaintiff has a fairly significant list of activities 9 daily living. She testified that she does not cook, but that 10 she does microwave and struggles with that to some degree. She 11 can clean. Plaintiff does not shop, a friend shops for her. 12 She does not do laundry. She does shower and dress and groom 13 herself. She listens to the radio. There was a conflict 14 concerning laundry at one point. I think at page 56 she may 15 have testified that she did and another time, she -- with 16 struggle and another time, she indicated she did not. She has 17 some friends. She watches television and she reads. 18 In terms of medication, at various times she has been 19 prescribed Trazodone, Seroquel, Vindoline, Lamictal, Gabapentin, 20 a nebulizer, and an inhaler. She also takes Aleve. She 21 testified at the hearing at page 60 that she is currently not

22 taking prescription pain medications. 23 She, for three years apparently, smoked synthetic 24 marijuana, but stopped in July of 2015. That's indicated at 25 page 253 and 1140 of the Administrative Transcript. Plaintiff 1 has smoked -- at one point, at 550, she stated 20 cigarettes per 2 day for the past 20 years; and at page 55, she stated one half 3 pack of cigarettes each day; at page 505, she stated one pack 4 per day. 5 Procedurally, plaintiff applied for Title XVI 6 Supplemental Security Income benefits on February 3, 2016,

7 alleging an onset date of January 1, 2015. In her field report, 8 she listed several impairments that she claims preclude her 9 ability to perform work functions, including PTSD, COPD, 10 emphysema, depression, anxiety, arthritis, borderline 11 personality disorder, degenerative disc disease, neck and spine 12 issues, right arm pain, bipolar disorder, depressive disorder, 13 foot issues, back issues, tenosynovitis of wrists, right foot 14 and ankle conditions, arthritis in the back, arthritis in the 15 right foot, bilateral tendonitis in the hands. When asked at 16 the hearing what precluded her from work, she indicated neck 17 issues, anxiety, right foot issue, back issues, right arm issue, 18 thumbs issue, wrist tendonitis, PTSD, bipolar disorder, 19 depression, COPD, and emphysema. That's at pages 47 and 48 of 20 the Administrative Transcript. 21 A hearing was conducted on April 15, 2018, by

22 Administrative Law Judge Bruce Fein to address plaintiff's 23 application. ALJ Fein issued an unfavorable decision on 24 July 19, 2018. That became a final determination of the agency 25 on March 4, 2019, when the Social Security Administration 1 Appeals Council denied plaintiff's application for review. This 2 action was commenced on April 19, 2019, and is timely. 3 In the Administrative Law Judge's decision, which I 4 found to be extremely comprehensive, ALJ Fein applied the 5 familiar five-step test for determining disability. At step 6 one, he concluded that plaintiff had not engaged in substantial

7 gainful activity since the date of her application on 8 February 3, 2016. 9 At step two, ALJ Fein found that plaintiff suffers 10 from several impairments that impose more than minimal 11 limitation on her ability to perform work-related functions, 12 including bipolar disorder, PTSD, borderline personality 13 disorder, status post talocalcaneal fusion of right foot, status 14 post C5-6 anterior cervical discectomy with fusion, depressive 15 disorder, and anxiety disorder. 16 At step three, ALJ Fein concluded that plaintiff's 17 conditions do not meet or medically equal any of the listed 18 presumptively disabling conditions set forth in the 19 Commissioner's regulations, specifically considering listings 20 1.02, 1.03, 1.04, 12.04, 12.06, 12.08, and 12.15. 21 The Administrative Law Judge next determined

22 plaintiff's residual functional capacity, or RFC, to include the 23 ability to lift and carry 10 pounds frequently and 20 pounds 24 occasionally, sit for six hours in an eight-hour workday with 25 normal breaks, stand and walk for two hours in an eight-hour day 1 with normal breaks. He went on to conclude that she suffers 2 from additional physical and mental limitations -- I should say 3 limitations based on, quote, physical and mental impairments, 4 which we'll come back to further on in this opinion. 5 At step four, applying that residual functional 6 capacity, ALJ Fein concluded that plaintiff did not have any

7 significant past relevant work to consider and proceeded to step 8 five where he applied the Medical-Vocational Guidelines set 9 forth in the Commissioner's regulations, the so-called grids. 10 And based on Grid Rule 201.27, which is a grid rule that applies 11 to sedentary work, the ALJ concluded that plaintiff was not 12 disabled at the relevant time. 13 As you know, my task is limited, the standard of 14 review which the Court must apply is extremely deferential. The 15 Court must determine whether correct legal principles were 16 applied and the resulting determination is supported by 17 substantial evidence. Substantial evidence is defined to mean 18 such relevant evidence as a reasonable person would find 19 adequate to support a conclusion. The Second Circuit Court of 20 Appeals in Brault v. Social Security Administration 21 Commissioner, reported

, a decision issued in 2012,

22 noted that this is an extremely stringent standard, it is more 23 exacting than the clearly erroneous standard. The Court, in 24 passing, also noted in Brault that the substantial evidence 25 standard means once an ALJ finds a fact, it can be rejected only 1 if a reasonable factfinder would have to conclude otherwise. 2 In this case, plaintiff raises four basic 3 contentions. She alleges error at step two for the ALJ's 4 failure to consider COPD as severe; she challenges the ALJ's 5 evaluation of the medical opinions in the record, and 6 specifically including Dr. Cole's opinion regarding irritants

7 and the opinions regarding plaintiff's mental limitations; she 8 challenges the ALJ's analysis of plaintiff's subjective 9 complaints, what we used to call the credibility two-step 10 analysis; and lastly, she contends at step five that the 11 Commissioner improperly resorted to the Medical-Vocational 12 Guidelines rather than eliciting testimony and opinion evidence 13 from a vocational expert. As you know, the burden of proof in 14 this case rests with the claimant through step four. It is the 15 claimant's burden to establish, among other things, her 16 impairments and the resulting limitations on the ability to 17 perform work functions. 18 Addressing the first argument, the governing 19 regulations provide that an impairment, or combination of 20 impairments, is not severe if it does not significantly limit a 21 claimant's physical or mental ability to do basic work

22 activities, 20 CFR Section 404.1521(a), and there's a 23 corresponding regulation in the 416 series governing SSI 24 applications. It is true that the second step requirement is de 25 minimis and intended only to screen out the truly weakest of 1 impairments, Dixon v. Shalala,

, a Second Circuit 2 case from 1995. Importantly, however, the mere presence of a 3 diagnosed disease or impairment does not in and of itself prove 4 the limitation on ability to perform work-related functions. 5 I agree with the Commissioner's argument that any 6 error at step two is likely harmless because the ALJ did proceed

7 to the third step in the sequential analysis based on the 8 finding of other impairments, and at page 27 did, again, come 9 back and consider the potential effects of COPD on the ability 10 to perform work functions, but I further find that there's no 11 error at step two. The ALJ explained his rejection of COPD as 12 severe at both pages 17 and page 27 of the Administrative 13 Transcript. The records of plaintiff's treatment concerning 14 COPD show, at times, only a mild case and, at other times, show 15 that she is symptom free or asymptomatic, including at pages 16 443, 448, 1283, 1288, 1278, and 1581 of the Administrative 17 Transcript. 18 I recognize that Dr. Cole says that the plaintiff, 19 quote, should avoid irritants, but it is also noteworthy that 20 plaintiff is a longstanding smoker. In any event, I find no 21 error and I find that the rejection of COPD as severe is

22 appropriately stated and defended by the Commissioner. 23 In terms of weighing the medical opinions, for a 24 similar reason I find that Dr. Cole's opinion concerning 25 irritants was not adopted. It is for the Administrative Law 1 Judge to weigh medical opinion and evidence under Veino. I find 2 that the Commissioner's decision concerning the irritant issue 3 is well explained and supported by substantial evidence as 4 indicated. I'm not sure I agree with the Commissioner that if 5 there was a limitation on the exposure to irritants it would not 6 effect the analysis at step five. SSR 85-15 speaks to irritants

7 and environmental restrictions and indicates that where an 8 environmental restriction falls between very little and 9 excessive, resolution of the issue will generally require 10 consultation of occupational reference materials or the services 11 of a vocational expert. Again, I find no error in the failure 12 to include any limitation concerning exposure to irritants in 13 the residual functional capacity finding. 14 Turning to the issue of mental impairments, with the 15 specific issue of the ability to deal with supervisors and 16 coworkers, there are several opinions that address that in the 17 record. Dr. Pzetzo -- I won't venture to try to pronounce that 18 name -- he is a non-examining consultant. He found a moderate 19 limitation in that area at pages 78 and 73. The opinion was 20 given some weight by the Administrative Law Judge. Dr. Santoro, 21 an examining consultant, found a moderate difficulty in relating

22 to others at page 502. The plaintiff's therapist, Chrystal 23 Fox-McCormick, found a marked limitation in this area at page 24 681. That, however, was rejected for two reasons: Number one, 25 under the regulations that were in place at the time, 1 plaintiff's claim was adjudicated, she was not an acceptable 2 medical source and she had limited treatment at the time this 3 opinion was rendered since she had only begun treating plaintiff 4 in December of 2016. What the ALJ noted was that another 5 non-examining physician, Dr. De Paz-Ortiz, found no significant 6 limitation in this area at page 737. That opinion was given the

7 most weight at page 27 of the Administrative Transcript. 8 Again, under Veino, it was for the Administrative Law 9 Judge to weigh these countering opinions and it would be 10 improper for the Court to reweigh them. I note that there is no 11 opinion from an acceptable treating source to the contrary of 12 Dr. De Paz-Ortiz's opinion and that might change the analysis. 13 I also note that at page 200 of the Administrative Transcript, 14 on April 4, 2016, the plaintiff stated she has no difficulty in 15 getting along with bosses, police, landlords or other people 16 with authority and has never lost a job because of problems 17 getting along with people. So I find no error in the weighing 18 of the opinions, it was for the Administrative Law Judge to 19 weigh them and to explain how each was evaluated, and that 20 explanation was made. 21 The credibility analysis, I'll call it the weighing

22 of plaintiff's subjective complaints, is governed by SSR 16-3p. 23 The Administrative Law Judge did not merely state without 24 explanation why he found plaintiff's claims not to be fully 25 credible. There was some extensive discussion between pages 20 1 and 29 of the Administrative Transcript. He concluded that they 2 were not fully credible at page 26, but the opinion, of course, 3 must be read as a whole. Plaintiff's physical conditions and 4 claims were evaluated at page 20 to 25 and some of the factors 5 deemed appropriate and appropriately considered by the 6 Administrative Law Judge included the fact that she was not

7 taking any prescription pain medications and her treatment had 8 been fairly conservative after the surgeries and relatively 9 benign findings are reflected in the medical records. 10 The mental condition and claims were evaluated at 11 pages 25 and 26. Once again, the Administrative Law Judge 12 considered those claims, but against the inconsistent treatment 13 that plaintiff was receiving and the attendance issues, which 14 are reflected in the records, it is for the Administrative Law 15 Judge to weigh plaintiff's subjective claims and his 16 determination is entitled to considerable deference. When the 17 record is considered as a whole, I find no error in the 18 evaluation of plaintiff's subjective complaints. 19 The last issue is one that I found intriguing and a 20 somewhat close case. The Commissioner, of course, bears the 21 burden at step five. When the Administrative Law Judge noted

22 that although some of the exertional limitations would support a 23 finding of light work, because of plaintiff's inability to walk 24 and stand the required amount of time under light work, he 25 considered the Medical-Vocational Guidelines relating to 1 sedentary work. He concluded that the grids could be relied on 2 and that Grid Rule 201.27 would direct a finding of no 3 disability. 4 A case where there are both exertional and 5 nonexertional limitations is controlled at step five by SSR 6 83-14. In this case, the Administrative Law Judge did consider

7 that grid rule. He found that the climbing limitation would 8 have no significant effect on the ability to perform work 9 functions and he turned to SSR 85-15 for guidance. He also 10 found that the ability to frequently balance, stoop, kneel, 11 crouch, and crawl would have no significant impact on the job 12 base under SSR 96-9p, and that is supported by SSR 85-15. 13 I know that one of my former colleagues, Magistrate 14 Judge Andrew Peck, in Prince was critical -- Prince v. Colvin, 15

, was critical of resort to SSR 85-15 when there 16 were both exertional and non-exertional limitations, but I think 17 that it can inform and provide guidance as to what impact 18 certain limitations would have on the erosion of the job base on 19 which the grids are predicated. 20 Mentally, the Administrative Law Judge concluded that 21 plaintiff is capable of performing simple routine and repetitive

22 tasks, performing low stress work, which is defined as requiring 23 only occasional decisionmaking, occasional changes in the work 24 setting, and occasional judgment, and occasionally interacting 25 with the public. That does not erode the job base. SSR 85-15 1 provides that, quote, the basic mental demands of competitive, 2 remunerative, unskilled work include the abilities (on a 3 sustained basis) to understand, carry out, and remember simple 4 instructions; to respond appropriately to supervision, 5 coworkers, and usual work situations; and to deal with changes 6 in a routine work setting. A substantial loss of the ability to

7 meet any of these basic work activities would severely limit the 8 potential job base. 9 As the Administrative Law Judge found, the RFC 10 indicates that the plaintiff does retain the ability to meet the 11 basic requirements of work under SSR 85-15, so I find that the 12 Commissioner's decision at step five was appropriate and that 13 the Commissioner carried its burden at step five to show that 14 plaintiff is not disabled based on the application of the 15 Medical-Vocational Guidelines. 16 So in conclusion, I find no error and that the 17 determination is supported by substantial evidence. I will 18 grant judgment on the pleadings to the defendant and direct 19 dismissal of the plaintiff's complaint. 20 Again, thank you both for excellent presentations. I 21 hope you stay safe in this interesting environment.

22 MR. PERE: Thank you very much, your Honor. 23 MS. KRUPER: Thank you, your Honor. Everybody, stay 24 safe. 25 THE COURTROOM DEPUTY: Thank you. 1 THE COURT: Thank you. 2 (Time noted: 11:57 a.m.) 3 4 5 6

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

23 24 25 2 CERTIFICATE OF OFFICIAL REPORTER 5 I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, 6 NYRCR, Official U.S. Court Reporter, in and for the United 7 States District Court for the Northern District of New York, DO 8 HEREBY CERTIFY that pursuant to Section 753, Title 28, United 9 States Code, that the foregoing is a true and correct transcrip 10 of the stenographically reported proceedings held in the 11 above-entitled matter and that the transcript page format is in 12 conformance with the regulations of the Judicial Conference of 13 ]| the United States. 14 15 Dated this 7th day of May, 2020. 16 17 x Nannat. F. ( avanagh 18 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR 19 Official U.S. Court Reporter 20 21 22 23 24 25