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

SHANE G. S.,

Plaintiff, v. Civil Action No. 5:20-CV-0193 (DEP)

ANDREW SAUL, Commissioner Social Security Administration,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

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

FOR DEFENDANT

SOCIAL SECURITY ADMINISTRATION NATASHA OELTJEN, ESQ. Office of General Counsel J.F.K. Federal Building Room 625 Boston, Massachusetts 02203

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)(3), are cross-motions for judgment on the

pleadings.1 Oral argument was conducted in connection with those motions on March 2, 2021, 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 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. 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: March 3, 2021 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x SHANE G. S.,

Plaintiff,

vs. 5:20-CV-193

ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on March 2, 2021, 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: LEGAL AID SOCIETY OF MID-NEW YORK INC. 221 South Warren Street, Suite 310 Syracuse, New York 13202 BY: ELIZABETH V. LOMBARDI, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel J.F.K. Federal Building Room 625 Boston, Massachusetts 02203 BY: NATASHA OELTJEN, 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: Thank you. Let me begin by thanking 4 both counsel for excellent presentations, I've enjoyed 5 working with you. 6 Plaintiff has commenced this proceeding pursuant to 7

(g) and 1383(c)(3) to 8 challenge the finding by the Commissioner of Social Security 9 that plaintiff was not disabled at the relevant times and 10 therefore is ineligible for the benefits which he sought. 11 The background is as follows: Plaintiff was born 12 in August of 1957, he is currently 63 years old. He was 58 13 years of age at the time of the onset of his alleged 14 disability in May of 2016. Plaintiff stands between 15 five-foot-five and five-foot-six inches in height and at 16 various times has weighed between 238 pounds and 272 pounds, 17 the latter figure was cited during the hearing testimony of 18 the plaintiff. Plaintiff is single and has no children. He 19 lives alone in an apartment in Syracuse, New York. Plaintiff 20 has a high school diploma and has achieved both a bachelor's 21 degree in music performance and a master's degree in music 22 education from Syracuse University. Plaintiff has a driver's 23 license but no car. He does take public transportation. 24 Plaintiff is right-handed. 25 The evidence is equivocal as to when plaintiff 1 stopped working. In the function report that was submitted 2 he indicated that occurred on April 28, 2016 but in his 3 hearing testimony, he stated that it occurred on May 18, 4 2016. 5 As an aside, hopefully -- I'm going to ask both of 6 you to mute your phones if you have not done so already. 7 Plaintiff worked from September 1981 to May of 2010 8 in various positions as a library technician. He worked from 9 April 2012 to April of 2016 part time as a receptionist in a 10 nonprofit setting. He left there, taking medical leave as a 11 result of his incontinence issues and odors associated with 12 that issue. 13 Plaintiff suffers physically from fecal and urinary 14 incontinence, bilateral knee issues that have been diagnosed 15 by Dr. Seth Greenky as medial meniscus tears, he has a back 16 condition, he suffers from diabetes, sleep apnea, asthma, and 17 hypertension. He has not undergone any magnetic resonance 18 imaging or MRI testing of his back or knees because he has an 19 implant that precludes MRI testing. An InterStim bowel 20 control device was implanted in the plaintiff in August of 21 2013, that appears at 407 and 408 as well as 415 of the 22 administrative transcript. He also underwent Botox 23 injections in August 2015 to address his urinary incontinence 24 issue, that appears at page 770 of the administrative 25 transcript. 1 Plaintiff's lumbar back was x-rayed on November 5, 2 2018. The resulting impression was, there are six 3 non-rib-bearing vertebrae, mild to moderate degenerative 4 disease is seen, no acute bony changes noted. In the 5 findings, it was indicated that vertebral body height and 6 alignment overall is maintained, some osteophyte formation 7 and facet arthropathy seen at several levels consistent with 8 degenerative disease. No acute fracture is noted. 9 Sacroiliac joints are intact. A stimulator and power pack is 10 noted. That appears at page 1850 of the administrative 11 transcript. 12 Mentally, plaintiff suffers from a condition that 13 has been variously diagnosed as bipolar disorder, depression, 14 generalized anxiety disorder, affective disorder. It is 15 indicated, but the evidence is equivocal, that he may have 16 autism spectrum disorder, although plaintiff says no at page 17 907, but there's an indication at page 1103 of the 18 administrative transcript that he does. 19 Plaintiff's primary care provider is Dr. Laura 20 Martin with Family Medical Care Group. He has also seen 21 Dr. Borys Buniak of Gastroenterology and Hepatology of 22 Central New York, Dr. Shawn Springer, Nurse Practitioner 23 Tammy Balamut, and Clinical Social Worker Adam Schwartz at 24 Circare, Dr. Margaret Plocek of Colon Rectal Associates of 25 Central New York, Dr. Andres Madissoo of AMP Urology, 1 Dr. Brett Greenky of Syracuse Orthopedic Specialists, 2 mentally Dr. Masud Iqbal of Upstate Psychiatric Care, also 3 seen Dr. Bala Murthy of Nephrology Associates of Syracuse and 4 various other providers including nurse practitioners and 5 registered nurses. 6 Plaintiff has a fairly wide range of activities of 7 daily living and interests. He's able to dress, bathe, 8 groom, cook, wash dishes, clean, do laundry, shop, take out 9 trash, drive, take public transportation, socialize with 10 friends and family, mall walk, watch television, listen to 11 radio, and attend Alcoholics Anonymous meetings five times 12 per week. Plaintiff does not smoke. He did apparently 13 suffer from alcohol and marijuana abuse from 1975 to 1989. 14 Procedurally, October 26, 2016, plaintiff applied 15 for Title II and Title XVI benefits, alleging an onset date 16 of May 18, 2016. At page 295, he claimed disability based on 17 incontinence, autism, sleep apnea, generalized anxiety 18 disorder, hypertension, high cholesterol, bladder outlet 19 obstruction, enlarged prostate, and chronic nocturnal 20 enuresis. I note that there were apparently prior 21 applications that were denied, last being on July 25, 2016. 22 On November 26, 2018, a hearing was held by 23 Administrative Law Judge Charles Woode. On January 29th, 24 2019, Judge Woode issued an unfavorable decision, finding 25 that plaintiff was not disabled at the relevant times. That 1 became a final determination of the agency on January 17, 2 2020 when the Social Security Administration Appeals Council 3 denied plaintiff's application for review. This action was 4 commenced on February 21, 2020, and is timely. 5 In his decision, ALJ Woode applied the familiar 6 five-step sequential test for determining disability. He 7 first found that plaintiff's last date of insured status was 8 December 31, 2018. 9 At step one he concluded plaintiff had not engaged 10 in substantial gainful activity since May 18, 2016. 11 At step two, ALJ Woode concluded that plaintiff 12 suffered from medically determinable impairments, including 13 fecal and urinary incontinence, left sacroiliitis, lumbar 14 degenerative disk disease, knee pain, obesity, generalized 15 anxiety disorder, and autism spectrum disorder. He 16 concluded, however, that none of those impairments were 17 severe in that none of them precluded plaintiff's ability to 18 perform the basic functions of work and therefore ended the 19 analysis. 20 The court's function of course is to determine 21 whether correct legal principles were applied and the 22 resulting determination is supported by substantial evidence. 23 Substantial evidence is defined as such relevant evidence as 24 a reasonable mind would accept as sufficient to support a 25 conclusion. 1 In this case plaintiff raises three basic 2 contentions. First, he contends that the failure to find any 3 severe impairments at step two was error, pointing to 4 incontinence, back pain, knee pain, mental condition, and 5 obesity. 6 Secondly, he contends that the administrative law 7 judge erred in failing to address and give weight or indicate 8 what weight is being given to medical opinions in the record 9 including from Dr. Laura Martin, a treating source, 10 Dr. Margaret Plocek, treating source, and Clinical Social 11 Worker Adam Schwartz, who also treated the plaintiff. 12 And thirdly, he contends that the administrative 13 law judge improperly rejected his subjective complaints 14 regarding his symptoms without proper explanation, an 15 argument that we used to refer to as credibility under the 16 old regulations and case law. 17 In response, defendant argues that plaintiff failed 18 to carry his burden of demonstrating a severe impairment at 19 step two limiting his ability to perform basic work 20 functions. 21 Secondly, it was admitted error not to weigh the 22 medical opinions in the record but the error was harmless and 23 if the administrative law judge had applied the proper 24 standard, they would not have been given controlling weight. 25 And thirdly, the administrative law judge explained 1 his reasoning for the evaluation that he gave to plaintiff's 2 complaints. 3 Turning first to the step two argument, under the 4 governing regulations, an impairment or combination of 5 impairments is not severe if it does not significantly limit 6 a claimant's physical or mental ability to perform basic work 7 activity. 20 C.F.R. Section 404.1521(a). The section goes 8 on to describe what is meant by the phrase basic work 9 activities, defining that term to include both the abilities 10 and aptitudes necessary to do most jobs. 11 The second step requirement is notoriously de 12 minimus. It is intended only to screen out the truly weakest 13 of cases. Dixon v. Shalala,

, Second 14 Circuit 1995. However, the mere presence of a disease or 15 impairment or establishing that a person has been diagnosed 16 or treated for a disease or an impairment is not by itself 17 sufficient to satisfy the step two test and establish a 18 condition as severe. Coleman v. Shalala,

at 19 53, Southern District of New York 1995. 20 In this case, if the Commissioner erred at step 21 two, the error is not harmless. Many cases that we see where 22 an administrative law judge has proceeded to step three of 23 the sequential analysis, we may find, or may not, that the 24 error is harmless if the condition was properly considered 25 when the residual functional capacity or RFC was formulated. 1 In this case, clearly the error is harmless -- harmful if 2 there was an error because it ended the inquiry. 3 Turning to the back and knee, one thing that the 4 Commissioner argued -- that the plaintiff argued was focused 5 on the durational requirement. It was addressed at page -- 6 the knee and back issue was addressed at page 18 to 19. The 7 Commissioner I think argued and I think cited Perez v. Astrue 8 for the proposition that the condition must last 12 months. 9 The actual regulation which is supported as well by the 10 statute which is

(d)(1)(A) 11 and the regulation is 20 C.F.R. Section 404.1509, requires in 12 terms of duration that it either has lasted or the condition 13 can be expected to last for a continuous period of not less 14 than 12 months. Gladle v. Colvin,

, from the 15 Northern District of New York, September 30, 2013. However, 16 I've reviewed carefully the administrative law judge's 17 decision, it does not appear to turn on the durational 18 requirement but instead focuses on the severity prong of the 19 appropriate test. The administrative law judge cites such 20 things as conservative treatment, the limited treatment of 21 plaintiff's knee and back conditions, the fact that 22 Dr. Greenky was only consulted once with regard to the right 23 knee and once or twice or limited number with regard to the 24 left. The problem is that the administrative law judge 25 doesn't indicate whether he considered the opinion of 1 Dr. Martin which, although it doesn't specify that it relates 2 the limitations presented to the back and knee, strongly 3 suggests that it might have been. And given the de minimus 4 standard at step two, I think it was error not to conclude at 5 step two that the back and knee conditions were severe. 6 Turning to obesity, the administrative law judge 7 addressed obesity briefly in one paragraph of his decision 8 that appears at page 19 and he finds that it is not severe. 9 He claims that he has considered the obesity as required 10 under Social Security Ruling 02-1p. That ruling gives 11 guidance as to how obesity is to be addressed and how to 12 address the interplay between obesity and its potential 13 impact on disability and on other conditions such as, for 14 example in this case, the back and knee conditions. The 15 paragraph that addresses obesity is very scant. It states 16 that the ruling has been complied with and, "The cumulative 17 effects of the plaintiff's obesity have been fully considered 18 in the same manner as all other medically determinable 19 impairments. The claimant's obesity is medically 20 determinable but since it does not cause or contribute to any 21 significant limitations on the claimant's ability to perform 22 basic work activities, it is not severe." I agree with the 23 plaintiff that I think this explanation is -- does not fully 24 articulate the reasoning and does not comport with the SSR 25 02-01p, Marthe v. Colvin,

from the Western 1 District of New York, June 28, 2016. 2 The mental, I'm less convinced that the 3 Commissioner erred with regard to the mental limitations and 4 conditions experienced by the plaintiff. Those are discussed 5 at 20 to 21 of the administrative transcript. At the hearing 6 plaintiff stated that he had no problem with his memory, 7 attention and concentration, understanding and ability to 8 perform, understand and follow instructions, that's at page 9 40. The administrative law judge considered the four 10 relevant functional areas and found mild limitations in three 11 and none in the fourth. I think the findings are supported 12 and well stated. 13 Finally, in connection with incontinence, the 14 relevant period is May 18, 2016 to January 29, 2019. Many of 15 the records cited by the plaintiff predate that, and there is 16 indication that there was improvement, particularly with 17 regard to the bowel incontinence. However, in Dr. Plocek's 18 medical opinion, which appears at 1688 through 1692 of the 19 administrative transcript, it's clearly indicated that there 20 are continued issues both with regard to urinary incontinence 21 and bowel incontinence and control, and at 1689, it is a 22 condition that is characterized as permanent for life. The 23 plaintiff did testify to effects of his incontinence on odor 24 and job loss, evictions. Unfortunately it was not well 25 developed at the hearing as to what requirements he would 1 have in terms of access to bathroom facilities, how often and 2 how long, but those are things that should have been 3 considered, put into the residual functional capacity finding 4 if there had been one. I think that the incontinence should 5 have been considered severe at step two. Crowley v. Apfel, 6

from the Fifth Circuit Court of Appeals, 1999. 7 The next issue -- so I find error at step two. 8 I also find error in the failure to consider the 9 medical source opinions in the record. There are medical 10 opinions from Dr. Margaret Plocek, a treating source, 1688 to 11 1692. There are medical source opinions from Dr. Laura 12 Martin, another treating source, from October 19, 2018, and 13 that appears at page 1651 to page 1657. There's a medical 14 opinion from Dr. R. Nobel, PhD, from December 21, 2016, an 15 agency consulting psychologist, nonexamining. There's an 16 opinion from Dr. Jeanne A. Shapiro, December 15, 2016, 17 page 905 to 909, and an opinion from Clinical Social Worker 18 Adam Schwartz from May 5, 2017, not an acceptable medical 19 source but someone that has treated the plaintiff for his 20 medical conditions. 21 Under the treating source rule, the opinion of a 22 treating physician regarding the nature and severity of an 23 impairment is entitled to considerable deference, provided 24 that it is supported by medically acceptable clinical and 25 laboratory diagnostic techniques and is not inconsistent with 1 other substantial evidence. Veino v. Barnhart,

, 2 Second Circuit 2012. Where there are conflicts in the 3 medical opinions in the record, it is for the administrative 4 law judge to weigh and resolve those conflicts. Veino, 312 5 F.3d at 588. 6 Clearly, there is error in this case in that the 7 plaintiff -- in that the administrative law judge does not 8 address the medical opinions in the record. Under 20 C.F.R. 9 Section 404.1527 and Section 416.927, it is the duty of the 10 administrative law judge, not the court, to weigh medical 11 opinions. I reject in this case post hoc rationale and an 12 invitation that the court perform that function. It is for 13 the administrative law judge. When the relevant factors 14 concerning the weight to be given to a medical opinion, the 15 so-called Burgess factors, are not considered, the court may 16 nevertheless find it is harmless error if, and it's based on 17 a searching review of the record, that the treating source 18 rule has not been violated. Estrella v. Berryhill,

90, Second Circuit 2019. I'm unable to say that, however, in 20 this case, because there was no analysis whatsoever of the 21 opinions, including two from competent treating sources and a 22 third from a treating source although not a medical, 23 acceptable medical source. So I find error at step two, and 24 I find that it is harmful error and a basis to remand the 25 matter to the Commissioner. 1 I am therefore not going to address the third 2 argument concerning the analysis of plaintiff's subjective 3 complaints. 4 I will, however, grant judgment on the pleadings to 5 the plaintiff and remand the matter to the agency for further 6 consideration with respect to the step two determination and 7 the medical opinions in the record and, if appropriate, to 8 continue through to step five of the sequential analysis. I 9 don't find any persuasive evidence of disability so I'm not 10 going to direct a finding in that regard. 11 Thank you both for excellent presentations, please 12 stay safe. 13 MS. LOMBARDI: Thank you, your Honor. 14 MS. OELTJEN: Thank you. 15 (Proceedings Adjourned, 2:46 p.m.) 16 17 18 19 20 21 22 23 24 25 1 2 CERTIFICATE OF OFFICIAL REPORTER 3 4 5 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 6 Official Realtime Court Reporter, in and for the 7 United States District Court for the Northern 8 District of New York, DO HEREBY CERTIFY that 9 pursuant to Section 753, Title 28, United States 10 Code, that the foregoing is a true and correct 11 transcript of the stenographically reported 12 proceedings held in the above-entitled matter and 13 that the transcript page format is in conformance 14 with the regulations of the Judicial Conference of 15 the United States. 16 17 Dated this 3rd day of March, 2021. 18 19 20 /S/ JODI L. HIBBARD

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