Hardee v. Saul

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

DONNETTE H., Plaintiff, v. Civil Action No. 3:19-CV-0755 (DEP) ANDREW M. SAUL, Commissioner of Social Security, Defendant.

APPEARANCES: OF COUNSEL: FOR PLAINTIFF LACHMAN, GORTON LAW FIRM PETER A. GORTON, ESQ.

Attorneys at Law 1500 East Main Street Endicott, NY 13761 FOR DEFENDANT HON. GRANT C. JAQUITH CHRISTOPHER L. POTTER, ESQ.

United States Attorney for the Special Assistant U.S. Attorney Northern District of New York P.O. Box 7198 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, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross- motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on August 19, 2020, 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 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 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.

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.

hu. Alta David E. Peebles U.S. Magistrate Judge Dated: August 27, 2020 Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x DONNETTE H., Plaintiff, -v- 3:19-CV-755 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES August 19, 2020 South Clinton Street, Syracuse, New York For the Plaintiff: (Appearance by telephone) LACHMAN & GORTON LAW OFFICE P.O. Box 89 1500 East Main Street Endicott, New York 13761 BY: PETER A. GORTON, ESQ.

For the Defendant: (Appearance by telephone) SOCIAL SECURITY ADMINISTRATION J.F.K. Federal Building, Room 625 New Sudbury Street Boston, Massachusetts 02203 BY: CHRISTOPHER LEWIS POTTER, ESQ.

Hannah F. Cavanaugh, RPR, CRR, CSR, NYACR, NYRCR Official United States Court Reporter South Clinton Street Syracuse, New York 13261-7367 (315) 234-8545 1 (The Court and all parties present by telephone.

2 Time noted: 11:22 a.m.)

3 THE COURT: Plaintiff commenced this proceeding pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3) to challenge an adverse determination by the Commissioner of Social Security finding that plaintiff was not disabled at the relevant times and therefore ineligible for the benefits sought.

9 The background is as follows: Plaintiff was born in September of 1981. She is currently 38 years old. She was 34 years of age at the alleged onset of her disability in January of 2016. Plaintiff stands between 4'8" and 4'10" inches in height and weighs between 126 and 140 pounds depending on the point in the record that you look.

15 Plaintiff lives in Binghamton in a mobile home with her boyfriend and two children who were nine and four years old at the time of the hearing in July of 2018. She also has an older daughter. Plaintiff is right-handed. She secured a GED in 2010. While she was in school, she was in regular classes.

20 She also has a CNA certification, which she obtained in 2007.

21 Plaintiff has a driver's license and does drive.

22 Plaintiff stopped working on January 2, 2016. When she was employed, she was in various positions; 2001 to 2005, as a laborer through a temporary agency; from March of 2007 to December of 2007, she was a CNA/certified nurse assistant; she also worked from May of 2006 to October 2010 as a cashier and a prep person in a grocery store; and from May 2015 to January 2016 as a cashier.

4 Plaintiff suffers from several physical conditions, including disc bulges at multiple levels, multilevel degenerative disc disease with mild central canal stenosis, and she's been diagnosed as having fibromyalgia. She has bilateral carpal tunnel syndrome, which she treats through the use of splints, and headaches. In February of 2013, she underwent a microdiskectomy at the T11-T12 level. In February of 2018, she underwent magnetic resonance imaging testing. That is reported at pages 485 through 487 of the Administrative Transcript.

13 At T10-T11, there was a finding of an intervertebral disc desiccation, a bulging intervertebral disc, mild central canal stenosis, but no significant neuroforaminal stenosis. At T11 and T12, it was also noted to be a mild bulging intervertebral disc, no significant central canal stenosis, and no significant neuroforaminal stenosis. At L4-L5, there was a mild disc bulge with facet joint arthropathy and ligamentum flavum hypertrophy, but with no significant central canal stenosis, and mild bilateral neuroforaminal stenosis. At L5-S1, there was a finding of a Grade 1 anterolisthesis of L5 on S1 with an intervertebral disc desiccation and bulging intervertebral disc with posterior central herniation indenting the ventral thecal sac. Also, there was facet joint arthropathy and mild central canal stenosis, as well as mild bilateral neuroforaminal stenosis. The plaintiff also underwent earlier MRI testing, it's reported at page 500, and there was disc herniation located at T7-T8 and T9 and T10.

5 Mentally, plaintiff suffers from depression, anxiety, and an adjustment disorder. For treatment, plaintiff sees Nurse Practitioner Emily Crouse at Lourdes Center for Pain and Wellness. She has also seen Dr. Aamir Rasheed, a neurologist, and she sees Dr. Jane Hudson for her general treatment. In terms of mental health, plaintiff did appear at UHS Outpatient Mental Health from May of 2016 to April of 2017 when she was discharged. She now sees Lourdes Mental Health for treatment.

13 The plaintiff has been prescribed many medications over time for her mental health and physical health conditions, including Gabapentin, Naproxen, Methocarbamol, Lidocaine ointment, Lidocaine patches, Duloxetine for depression, Escitalopram for depression, Baclofen, Cymbalta, Lexapro, allergy medications, and Tylenol, as well as Zantac.

19 Plaintiff's activities of daily living include the ability to groom herself, cook, clean, do laundry, shop, take care of childcare, take care of dogs and cats, she plays music, and plays the guitar. Plaintiff smokes between one half and one pack of cigarettes per day, as well as medical marijuana that has been prescribed by Nurse Practitioner Crouse.

25 Procedurally, plaintiff applied earlier for disability benefits. Those benefits were denied by the Administrative Law Judge's decision in March of 2014. Plaintiff again applied for Supplemental Security Income or Title XVI benefits on March 31, 2016, alleging an onset date of January 2, 2016. In support of her application, she claimed to suffer from back problems-disc issues, depression, leg problems-numbness and weakness, neck problems-nerve pain, and major headaches.

8 A hearing was conducted on July 5, 2018, by Administrative Law Judge Thomas Cheffins with a vocational expert. On August 23, 2018, ALJ Cheffins issued an unfavorable decision which became a final determination of the agency on April 30, 2019, when the Social Security Administration Appeals Council denied plaintiff's request for a review. In doing that, the Appeals Council reviewed new evidence in the form of the medical questionnaire prepared by Nurse Practitioner Emily Crouse on August 29, 2018, that appears at page 8 and 9 of the Administrative Transcript, but found that it would not have altered the outcome. This action was commenced on June 25, 2010, and is timely.

20 In his decision, the ALJ applied the familiar five-step sequential test for determining disability. At step one, ALJ Cheffins concluded that plaintiff did not engage in substantial gainful activity since the date of application on March 31, 2016.

25 At step two, he concluded that plaintiff does suffer from severe impairments that impose more than minimal limitations on her ability to perform basic work functions, including degenerative disc disease of the lumbar and thoracic spine, status post discectomy T11-T12, cervicalgia, fibromyalgia, and right carpal tunnel syndrome.

6 At step three, the Administrative Law Judge concluded that the conditions do not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering listings 1.02, 1.04, and 1.01/14.06 in connection with fibromyalgia. The Administrative Law Judge next concluded that plaintiff retains the residual functional capacity to perform light work with exceptions that she can never climb ladders, ropes, or scaffolds, she can occasionally stoop and crouch, and she can frequently handle and finger the right upper extremity.

16 At step four, the Administrative Law Judge concluded that with that residual functional capacity, plaintiff is unable to perform any of her past relevant work.

19 Proceeding to step five, Administrative Law Judge Cheffins noted first that if plaintiff were capable of performing a full range of light work, the Medical-Vocational Guidelines in the regulations, and specifically Grid Rule 202.21, would direct a finding of no disability.

24 With the assistance of a vocational expert and a hypothetical posed to that vocational expert that mirrored the residual functional capacity finding, it was determined that plaintiff, at the light work level, could perform as a counter clerk and a bakery line worker, and although it was testified that the Dictionary of Occupational Titles did not address the stooping requirement associated with those two positions, the vocational expert testified based on his expertise she would be capable of performing in those positions notwithstanding the stooping limitation.

9 As you know, the Court's task is limited and applies a very deferential standard to the agency's determination. I must decide whether correct legal principles were applied and the resulting determination is supported by substantial evidence. As the Second Circuit noted in Brault v. Social Security Administration Commissioner at 683 F.3d 443 from 2012, the substantial evidence standard is stringent. Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It is akin to and even more stringent than the clearly erroneous standard which we as lawyers are familiar with. As the Second Circuit noted, the substantial evidence standard means once an ALJ finds a fact, that fact can be rejected only if a reasonable factfinder would have to have conclude otherwise.

23 The plaintiff has raised three basic contentions.

24 First, that the residual functional capacity, and specifically the physical components of it, are not supported by any medical opinions. Secondly, the plaintiff complains of the Appeals Council's finding that Nurse Practitioner Crouse's questionnaire would not alter the determination of the Administrative Law Judge. And third, the step five determination is challenged as not supported because the vocational expert presumably used job numbers that were associated with OES categories that included multiple jobs, some of which plaintiff may not be able to perform, and that it's based on a flawed hypothetical because the residual functional capacity finding is not supported.

10 Turning first to the step five argument, it appears to me that the vocational expert did rely on OES category numbers. This is a step at which the Commissioner bears the burden of proof. The burden can, of course, be carried through the testimony of a vocational expert. There were two jobs identified in the light category in response to a hypothetical, which did mirror the residual functional capacity finding, and the vocational expert identified 115,000 jobs available in one category and 290,000 in another at pages 87 to 88. The vocational expert testified as to the source of the information and job numbers, including employment quarterly reports, Census Bureau information, and training, education, and experience, which, of course, are proper bases for the vocational expert's opinion. But, again, he was asked if the numbers correlated to OES categories and he responded yes.

25 I think the matter could and should have been clarified. I'm not sure I agree that it is malpractice to inquire into or attempt to clarify, but even if the argument was not waived, I find that it is harmless error. The number of jobs cited are greatly in excess of the numbers of jobs that would be required in the 6,000 to 10,000 range to support a finding of the ability to perform work in the national economy.

7 Michelle M v. Commissioner of Social Security, it is found at 2020 WL 495170, a Northern District of New York decision from January 30, 2020, a similar situation where an ALJ's reliance on a vocational expert's identification of over 100,000 positions nationally, even if they came from OES job groups, because it was in excess of 10,000, it was deemed to be harmless error.

14 My greater concern is the physical components of the residual functional capacity finding in this case. Pivotal to any determination of disability is a finding of a claimant's residual functional capacity, which represents the range of tasks she is capable of performing notwithstanding the impairments at issue. An RFC determination is informed by consideration of all of the relevant medical and other evidence.

21 To properly ascertain a claimant's RFC, an ALJ must assess plaintiff's exertional capacities such as her ability to sit, stand, walk, lift, carry, push, and pull. The ALJ must also consider any nonexertional limitations or impairments, including those that result in postural and manipulative limitations.

1 When rendering an RFC determination, the ALJ must specify those functions that the claimant is capable of performing.

3 Conclusory statements concerning her capabilities will not suffice. And, of course, ultimately, any RFC determination must be supported by substantial evidence.

6 In this case, the plaintiff was deemed by the Administrative Law Judge to have the capability of performing light work with some alterations. Light work is defined under 20 C.F.R. Section 404.1567(b) as follows: Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

21 There's no question that there is not a single medical opinion other than Nurse Practitioner Crouse's, which we'll deal with in a moment, in the record that relates to plaintiff's ability to perform functions such as standing, walking, sitting, lifting, and carrying. The only position in the record or opinion in the record that speaks to those characteristics is Exhibit 3A, and the physical portion of that exhibit is signed by a single decisionmaker whose opinion is not entitled to any weight.

5 I recognize that in a simple case, it is clear that an Administrative Law Judge may make a residual functional capacity determination without support from a medical source.

8 This, however, in my view, is not a simple case. Plaintiff suffers from mutli-level degenerative disc disease, which is well supported, including by MRI testing, and also has a diagnosis of fibromyalgia. It's undeniable that fibromyalgia is an illusive disease which may or may not result in a finding of disability. The diagnosis does not translate into an automatic finding of disability. After all, it is not the presence of a medical condition, but rather its resulting limitations that inform the question of whether a plaintiff is under a disability.

18 Undeniably, fibromyalgia is recognized as a potentially severe impairment that may support a claim of disability under the act, in Green-Younger v. Barnhart, 335 F.3d 21 99 at 108, a Second Circuit decision from 2003. It is also true that by its very nature, fibromyalgia is not always readily susceptible to detection or verification through clinical testing or other objective means, as the Second Circuit noted in Green-Younger. Despite its illusiveness and potentially debilitating effects, fibromyalgia, like many medical conditions, is one which may be, but is not necessarily, so limiting as to qualify as disabling under the act, Coyle v. Apfel, 66 F. Supp. 2d 368 at 376-77, a decision from Judge Hurd in the Northern District of New York in 1999.

6 In this case, I recognize the Commissioner's argument that it is plaintiff's burden to establish her limitations, and she can carry that burden in a variety of ways, including through her testimony. She testified about her inability to stand or sit for more than ten minutes. There is also evidence in the record that supports her degenerative disc disease complaints. Clearly, if Nurse Practitioner Crouse's medical source statement was considered, it would support or buttress plaintiff's claims concerning her inability to lift, her need to change positions, her inability to stand or walk for long periods of time, and her limitations on lifting.

17 In my view, this is a case where the Administrative Law Judge manufactured an RFC finding out of whole cloth, playing doctor, and not relying on any medical opinions. This case is extremely similar to the decision issued by Chief Judge Suddaby in Charland v. Commissioner of Social Security, 2016 WL 1117515 from March of 2016, where, citing Second Circuit authority, Chief Judge Suddaby noted that an ALJ is not permitted to substitute his own expertise or view of the medical proof for the treating physician's opinion or for any competent medical opinion. Moreover, an ALJ cannot assess a plaintiff's RFC based on the ALJ's own interpretation of the medical evidence. Judge Suddaby did go on to recognize that where medical evidence shows relatively little physical impairment, an ALJ can permissively render a common sense judgment about functional capacity even without a physician's assessment.

7 In this case, however, the ALJ recognized plaintiff's degenerative disc disease at multiple levels and fibromyalgia as severe at step two. This is not a simple case and there was simply no basis for the ALJ to assess plaintiff's ability to lift, stand, need to change positions, work pace, or attendance.

12 So in conclusion, I find that the residual functional capacity finding in this case is not supported and, therefore, the step five determination which relied on a hypothetical that was based on the RFC finding cannot stand, and, therefore, the step five determination is not supported by substantial evidence. I don't find it necessary to reach the new evidence issue because of my determination. I don't find persuasive evidence of disability. I think this is a situation where a remand is required in order to obtain some medical opinions concerning plaintiff's physical capabilities, so I will grant judgment on the pleadings and order remand of the matter without a directed finding of disability.

24 Thank you both for excellent presentations. I hope you stay safe in these interesting times.

1 MR. GORTON: Thank you, your Honor.

2 MR. POTTER: Thank you, your Honor.

3 (Time noted: 11:48 a.m.)

2 CERTIFICATE OF OFFICIAL REPORTER 5 I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR, Official U.S. Court Reporter, in and for the United States District Court for the Northern District of New York, DO HEREBY CERTIFY that pursuant to Section 753, Title 28, United 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 ]| the United States.

15 Dated this 27th day of August, 2020.

17 X Mannah. Fu | asteaiphe 18 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR 19 Official U.S. Court Reporter