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

LINDSAY A.,

Plaintiff, v. Civil Action No. 5:20-CV-0433 (DEP)

ANDREW SAUL, Commissioner of Social Security, Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

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

FOR DEFENDANT

SOCIAL SECURITY ADMIN. CANDACE LAWRENCE, ESQ. 625 JFK Building 15 New Sudbury St Boston, MA 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

(g). are cross-motions for judgment on the pleadings.1 Oral argument

was conducted in connection with those motions on May 26, 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) 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.

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. 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: June 1, 2021 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x LINDSAY A.,

Plaintiff,

vs. 5:20-CV-433

ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on May 26, 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: LACHMAN, GORTON LAW FIRM Attorneys at Law P. O. Box 89,1500 East Main Street Endicott, New York 13761 BY: PETER A. GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel J.F.K. Federal Building Room 625 Boston, Massachusetts 02203 BY: CANDACE LAWRENCE, 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: I appreciate both of you and your 4 excellent presentations and have enjoyed working with you on 5 this case. 6 Plaintiff has commenced this action pursuant to 42

(g) to challenge an adverse 8 determination by the Commissioner of Social Security finding 9 that she was not disabled at the relevant times and therefore 10 ineligible for the benefits she sought. 11 The background is as follows: Plaintiff was born 12 in June of 1984. She's currently 37 years of age. She was 13 31 years old at the alleged onset of her disability in 14 October of 2015. And I would ask you both to mute your 15 phones, please. Plaintiff stands five foot, four-and-a-half 16 or five inches in height and weighs between 258 and 17 276 pounds, depending on the point in the record that it 18 appears. At one point it was noted that she experienced a 19 75-pound weight gain. Plaintiff is married with three 20 daughters. In January of 2019, they were ages three years, 21 two years, and four months. She lives in Port Crane, 22 New York. Plaintiff has a college degree, master's of 23 psychology. She is right-handed. She has a driver's license 24 and drives occasionally. 25 Plaintiff stopped working in or about October of 1 2015 or 2014, again, depending on where in the record you 2 look, it seems more likely that it was 2014, and she stated 3 that it was due to a medical issue. She suffered a 4 subchorionic hematoma. Plaintiff's past work includes as a 5 school attendance officer, a substitute teacher, a loan 6 officer for a financial company, and a family services 7 caseworker. That was her last position. She was also a 8 server while in college. She possesses or possessed a 9 teaching assistant license which is now expired. 10 Mentally plaintiff suffers from depression and 11 anxiety in various forms including -- has been diagnosed as 12 general anxiety disorder, panic disorder with the beginnings 13 of agoraphobia, major depressive disorder, and social 14 anxiety. She also experiences paranoia. There is a reported 15 suicide attempt at age 30, that appears at page 253 of the 16 administrative transcript, but there are no records 17 concerning that attempt. 18 Plaintiff's primary physician is Dr. Shalini 19 Bichala. She has also seen a psychologist Dr. Cheryl 20 Scott-Richard in Oakdale Psychology since April of 2015. 21 In terms of medications, plaintiff has in the past 22 been prescribed Paxil, Zoloft, trazodone, citalopram, 23 sertraline, meloxicam, and pantoprazole for a gastric issue, 24 although she was off medications, she testified, while 25 nursing her baby. 1 In terms of activities of daily living, plaintiff 2 is able to dress, bathe, groom, do some cooking, some 3 cleaning, laundry, shop one time per month, care for her 4 three daughters, and watch television. Plaintiff smokes 5 three to four times per week. 6 Procedurally, plaintiff applied for Title II 7 disability benefits on November 14, 2016, alleging an onset 8 date of October 10, 2015. In her function report she claims 9 disability based upon persistent depressive disorder, social 10 anxiety disorder, panic disorder, perinatal depression, and 11 psychotic depression. A hearing was conducted on January 31, 12 2019 by Administrative Law Judge Jude Mulvey to address 13 plaintiff's application for benefits. On February 20, 2019, 14 ALJ Mulvey issued an adverse determination which became a 15 final determination of the agency on March 2, 2020, when the 16 Social Security Administration Appeals Council denied 17 plaintiff's request for review. This action was commenced on 18 October 15 -- I'm sorry, April 15, 2020 and it is timely. 19 In her decision, ALJ Mulvey applied the familiar 20 five-step sequential test for determining disability. She 21 first noted that plaintiff was last insured on December 31, 22 2019. 23 She then proceeded to step one where she found that 24 plaintiff had not engaged in substantial gainful activity 25 since the alleged onset date of October 10, 2015. 1 At step two, she found that plaintiff suffers from 2 severe impairments that impose more than minimal limitations 3 on her ability to perform work-related functions including 4 mental health issues involving anxiety and depression, as 5 well as obesity. 6 At step three, ALJ Mulvey concluded that 7 plaintiff's impairments do not meet or medically equal any of 8 the listed presumptively disabling conditions set forth in 9 the Commissioner's regulations, specifically considering 10 Listings 12.04 and 12.06. 11 ALJ Mulvey next concluded that plaintiff retains 12 the ability to perform a full range of medium work with 13 exceptions, including a physical component and a mental 14 component. Applying that residual functional capacity, 15 plaintiff, according to ALJ Mulvey, is incapable of 16 performing any of her past relevant work. 17 At step five, where the burden of proof of course 18 shifts to the Commissioner, ALJ Mulvey noted first that if 19 plaintiff could perform a full range of medium work, a 20 finding of no disability would be required by the 21 Medical-Vocational Guidelines set forth in the regulations, 22 and specifically Rule 203.29. Relying on the testimony of a 23 vocational expert in light of the additional physical and 24 mental impairments noted, limitations noted in the RFC 25 finding, the administrative law judge concluded that 1 plaintiff is capable of performing work that is available in 2 the national economy, representative occupations being retail 3 stocker and linen room attendant, and thus concluded that 4 plaintiff was not disabled or was not disabled at the 5 relevant times. 6 The court's function, as you know, is to determine 7 whether correct legal principles were applied and the 8 resulting determination supported by substantial evidence, 9 being defined as such relevant evidence as a reasonable mind 10 would accept as sufficient to support a finding or 11 conclusion. It is a highly deferential standard. 12 The plaintiff raises four essential arguments, some 13 of which are interrelated. 14 The first relates to the consideration of the 15 treating source opinion of Dr. Scott-Richard and subsumed 16 within that is the contention that the ALJ arbitrarily 17 substituted her judgment for undisputed records without an 18 overwhelmingly convincing basis and that the residual 19 functional capacity was crafted by the ALJ from their medical 20 records. 21 The second argument is that there's no support for 22 the distinction in the RFC finding that plaintiff can have 23 occasional interaction with supervisors and coworkers but 24 none with respect to the public. 25 The third is that because the residual functional 1 capacity is not supported, the step five determination is 2 also flawed. 3 And the fourth is that the administrative law judge 4 should have at least considered a closed period. 5 Dr. Scott-Richard of course qualifies as a treating 6 source. This case is being addressed under the regulations 7 which applied prior to March of 2017. As a treating source, 8 Dr. Scott-Richard's opinions were entitled to controlling 9 weight provided that those opinions were supported by 10 medically acceptable clinical and laboratory diagnostic 11 techniques, and the opinions are not inconsistent with other 12 substantial evidence. 13 The opinions of a treating source are not 14 controlling if they are contrary to other substantial 15 evidence in the record, including the opinions of other 16 medical experts. Where there's conflicts in the form of 17 contradictory medical evidence, the resolution is properly 18 entrusted to the Commissioner. The ALJ, when considering a 19 medical opinion and deciding whether controlling weight 20 should be given to a treating source's opinion, must apply 21 several factors which we refer to in this circuit as Burgess 22 factors to determine whether controlling weight should be 23 given, and if not, what, if any, weight should be assigned to 24 the opinion of a treating source. Those are listed in 20 25 C.F.R. Section 404.1527. When the ALJ repudiates a treating 1 source opinion, good reasons must be provided for the 2 rejection. The Second Circuit of course has noted that when 3 there is no rote consideration of Burgess factors, the court 4 can make a searching review of the record and can determine 5 that the treating source rule was not violated. Estrella v. 6 Berryhill,

from May 29, 2019. 7 In this case, Dr. Scott-Richard was a treating 8 source, saw the plaintiff 31 times between 2015 when 9 treatment began through November 13, 2018. Dr. Scott-Richard 10 is a specialist. The doctor provided a medical source 11 statement on December 7, 2018 that appears at 297 and 298 of 12 the administrative transcript and it notes marked limitations 13 in virtually every area noted except between marked and 14 extreme in area of ability to respond appropriately to 15 ordinary stressors in a work setting with simple tasks. It 16 also opines that plaintiff would be off task more than 17 20 percent of the time and absent three or more days per 18 month. The opinion was mentioned at page 19, although in 19 that mention, that was during the step three analysis, she's 20 referred to only as a psychologist and not by name. She is 21 referred to by name as the Commissioner rightly argued later 22 on in the opinion, including at page 21 and 22. And then her 23 opinion is summarily given only partial weight, stating that 24 the limitations identified are not supported by psychiatric 25 treatment records. 1 I guess I would have to say there's no explicit 2 consideration of the Burgess factors as we find in many of 3 these decisions. I'm not sure that it is accurate to say 4 that the treatment notes don't support the finding. The 5 administrative law judge, when making that kind of a 6 determination, must set forth rationale and explain it 7 sufficiently to permit meaningful judicial review. As the 8 plaintiff has argued, Second Circuit noted as much in Ferraro 9 v. Saul,

, Second Circuit summary order from 10 March 12, 2020, and Byrne v. Berryhill,

, a 11 memorandum opinion from February 8, 2019. It is also noted 12 in Drake v. Saul,

from December 11, 2020. 13 I believe Judge Mulvey should have made a more 14 fulsome analysis and when she said that the treatment records 15 didn't support it, she should have put forth a more fulsome 16 explanation. Obviously a lot of what was reported to 17 Dr. Scott-Richard was based on plaintiff's subjective 18 statements, but of course in a mental health case, very often 19 those statements, as well as the interpretation of those 20 statements, is critical. I also note that many of the 21 treatment records that I reviewed show that plaintiff was 22 depressed, anxious, page 248, clearly in distress, tearful, 23 has a depressed affect, several of them. So I believe the 24 treating source rule was violated. 25 The bigger issue, as plaintiff's counsel has 1 argued, is on the issue of absenteeism and off task. 2 Dr. Scott-Richard, the treating source, identified extreme 3 limitations that are work preclusive. Dr. Moore, the 4 consultative examiner who issued an opinion that appears at 5 256 through 262 of the administrative transcript, January 19, 6 2017, found that marked limitation in the ability to maintain 7 a regular work schedule. The only opinion, other opinion to 8 somewhat indirectly address the issue is from Dr. E. Kamin, 9 January 26, 2017. In his worksheet, he found a moderate 10 limitation in the ability to complete a normal workday and 11 workweek without interruptions from psychologically-based 12 symptoms and to perform at a consistent pace without an 13 unreasonable number and length of rest periods. That appears 14 at 96 of the administrative transcript. 15 Unfortunately, although the mental residual 16 functional capacity is supposed to elaborate and describe the 17 extent of that moderate limitation, it is not done and in 18 fact there's no statement in the -- that I could find in the 19 mental residual functional capacity that plaintiff is capable 20 of performing simple work on a regular basis. So I believe 21 that the finding that plaintiff is -- the residual functional 22 capacity finding, which does not include any limitation 23 related to schedule and off task, is flawed and therefore the 24 step five determination which hinges on the residual 25 functional capacity finding is also flawed. 1 So I will grant judgment on the pleadings to the 2 plaintiff. I don't find persuasive evidence of disability, I 3 think this is a matter that should be remanded for further 4 consideration by this or another administrative law judge. 5 Thank you both for excellent presentations, I hope you have a 6 good afternoon. 7 MR. GORTON: Thank you, your Honor. 8 MS. LAWRENCE: Thank you. 9 (Proceedings Adjourned, 2:34 p.m.) 10 11 12 13 14 15 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 27th day of May, 2021. 18 19 20 /S/ JODI L. HIBBARD

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