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

PATRICIA A. S.,

Plaintiff, v. Civil Action No. 8:20-CV-0434 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

__________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

CONBOY McKAY LAW FIRM LAWRENCE D. HASSELER, ESQ. 307 State Street Carthage, NY 13619

FOR DEFENDANT

SOCIAL SECURITY ADMIN. MICHAEL L. HENRY, 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) and 1383(3)(c), are cross-motions for judgment on the

pleadings.1 Oral argument was heard in connection with those motions on July 7, 2021, 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 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.

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. 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) The clerk is respectfully directed to enter judgment, based

upon this determination, DISMISSING plaintiff's complaint in its entirety.

U.S. Magistrate Judge Dated: July 12, 2021 Syracuse, NY

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

Plaintiff,

vs. 8:20-CV-434

COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Digitally-Recorded Telephone Conference on July 7, 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: CONBOY, McKAY LAW FIRM Attorneys at Law 307 State Street Carthage, New York 13619 BY: LAWRENCE D. HASSELER, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel J.F.K. Federal Building Room 625 Boston, Massachusetts 02203 BY: MICHAEL L. HENRY, 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, 11:11 a.m.) 3 THE COURT: I appreciate the excellent 4 presentations of both counsel, both through their written 5 briefs and orally. 6 I have before me a challenge to an adverse 7 determination by the Commissioner of Social Security finding 8 that plaintiff was not disabled at the relevant times and 9 therefore ineligible for the benefits which she sought. The 10 challenge is raised pursuant to 42 United States Code 11 Sections 405(g) and 1383(c)(3). 12 The background is as follows: Plaintiff was born 13 in March of 1975 and is currently 46 years of age. She was 14 41 years old at the time of the alleged amended onset date of 15 September 14, 2016, and 43 at the time of the administrative 16 hearing in this matter. She stands approximately 5 foot 17 5 inches in height. Her weight has fluctuated as much as 30 18 to 50 pounds. At the time she prepared her functional 19 report, she weighed 124 pounds. At the time of the hearing 20 she weighed 158 pounds. Plaintiff underwent bariatric bypass 21 surgery in 2016 and has had medically induced anorexia. 22 Plaintiff is married and lives with her husband in a mobile 23 home in Waddington, New York. She has two children who at 24 the time of the hearing in August 2018 were 17 and 23 years 25 of age. Neither of those children resides with the 1 plaintiff. Plaintiff has a high school degree and two years 2 of college education. While in school she attended regular 3 classes. Plaintiff is right-handed. She has a driver's 4 license but no car, her vehicle apparently was repossessed. 5 Plaintiff worked until September 2016 in various 6 positions, most of short duration, including as a cashier, a 7 merchandiser, a stocker, a team leader, a dairy 8 representative and dairy inspector, and a sales associate in 9 an appliance store. 10 Plaintiff suffers from physical and mental 11 diagnosed conditions. Mentally her conditions have been 12 variously diagnosed as bipolar II disorder, depressive 13 disorder with atypical features, post-traumatic stress 14 disorder, anxiety, and an adjustment disorder with 15 depression. She is not currently undergoing any specialized 16 treatment for her psychiatric condition except through her 17 general practitioner who prescribes medication. She did in 18 the past see the Canton-Potsdam Behavioral Health Services 19 facility as well as to obtain services from the Mosaic 20 Behavior Health Services. 21 Physically, plaintiff has been diagnosed as 22 suffering from fibromyalgia, psoriatic arthritis of long 23 standing, GERD, and a left shoulder issue. Plaintiff's 24 primary provider is Dr. Emily Wood who she has seen since 25 September of 2000 -- I'm sorry, November of 2016. She sees 1 Dr. Wood approximately every six to eight weeks. She has 2 also consulted with Dr. Juan-Diego Harris, a pain specialist, 3 Dr. Lai Kuang, another pain provider, and Dr. Eyal Kedar, a 4 rheumatologist. She has also seen various other physician's 5 assistants and nurse practitioners. 6 Plaintiff has been prescribed various medications 7 over time including Humira, Prozac, Savella, a Butrans patch, 8 oxycodone, Soma, Stelara, Percocet, Prilosec, and omeprazole. 9 She uses a cane, although Dr. Wood, her primary provider, 10 indicated at page 730 of the administrative transcript that 11 it is not required. She has also undergone radiofrequency 12 ablation, injections, she uses a TENS unit, she has tried 13 acupuncture and physical therapy. Plaintiff does not smoke. 14 She does occasionally use marijuana for her pain, she has not 15 been prescribed medical marijuana. Plaintiff does and has 16 consumed in the past alcohol and has had some issues with 17 regard to alcohol and has undergone some AA treatment. 18 In terms of activities of daily living over time, 19 she is able to shower and bathe, she can groom, she does some 20 driving, some laundry, cleans, she does some cooking, she 21 does dishes, she does not shop, she watches television, 22 reads, she plays with her two small dogs, she did at one 23 point attend her daughter's volleyball games, she has been to 24 one or more casinos in the past, and she walks. 25 Procedurally, plaintiff applied for Title II and 1 Title XVI benefits on September 15, 2016, alleging an onset 2 date of May 24, 2016. That was later amended to 3 September 14, 2016, the date on which plaintiff left her last 4 work. In support of her application, she claims disability 5 based on stomach pain and scar tissue from multiple 6 surgeries, gastric bypass side effects, depression, 7 arthritis, and fibromyalgia. A hearing was conducted on 8 August 28, 2018 by Administrative Law Judge Robyn L. Hoffman 9 to address plaintiff's application. Administrative Law Judge 10 Hoffman issued an adverse decision on February 21, 2019. 11 That became a final determination of the agency on March 4, 12 2020 when the Social Security Administration Appeals Council 13 denied plaintiff's application for review. This action was 14 commenced on April 15, 2020 and is timely. 15 In her decision, ALJ Hoffman applied the familiar 16 five-step sequential test for determining disability. She 17 noted initially that plaintiff was last insured on June 30, 18 2 -- or will be, 2022. 19 At step one, ALJ Hoffman concluded plaintiff had 20 not engaged in substantial gainful activity since 21 September 14, 2016. She did do some work subsequent to that 22 date but did not rise to a level of substantial gainful 23 activity. The administrative law judge noted, however, that 24 she did consider plaintiff's ability to work in an appliance 25 store when formulating the residual functional capacity. She 1 testified that there was some lifting involved as I recall. 2 At step two, ALJ Hoffman found that plaintiff does 3 suffer from severe impairments that impose more than minimal 4 limitations on her ability to perform work functions, 5 including fibromyalgia, lumbar facet arthropathy, psoriatic 6 arthritis, status post gastric bypass, and degenerative tear 7 of the acetabular labrum of the right hip. 8 At step three, ALJ Hoffman concluded that 9 plaintiff's conditions do not meet or medically equal any of 10 the listed presumptively disabling conditions set forth in 11 the Commissioner's regulations, specifically considering 12 Listings 1.02 and 1.04. 13 ALJ Hoffman next concluded that despite her 14 conditions, plaintiff retains the residual functional 15 capacity, or RFC, to perform less than a full range of light 16 work, imposing some limitations that are inconsistent with a 17 full range of light work, finding that she can occasionally 18 lift and carry 20 pounds, frequently lift and carry 19 10 pounds, sit for up to six hours and stand or walk for 20 approximately six hours in an eight-hour day with normal 21 breaks. She is limited to frequent reaching in all 22 directions, and the claimant should avoid concentrated 23 exposure to excessive amounts of respiratory irritants such 24 as dust, odors, fumes, gases, and hot and cold temperature 25 extremes. 1 Applying that residual functional capacity at step 2 four, the administrative law judge essentially bypassed the 3 step in light of the paucity of information concerning 4 plaintiff's past relevant work. 5 At step five, ALJ Hoffman concluded that if she 6 were able to perform a full range of light work, plaintiff 7 would be not disabled pursuant to Rule 202.21 of the 8 Medical-Vocational Guidelines set forth in the Commissioner's 9 regulations, the so-called Grids. She concluded that the 10 limitation to frequent reaching was not significant and that 11 plaintiff is able to use both hands to handle, finger, feel 12 and therefore can grasp, hold, and turn objects. She also 13 concluded that the limitation associated with the 14 environmental conditions does not significantly impact her 15 ability to work, citing Social Security Rulings 83-14 and 16 85-15. She therefore concluded that those additional 17 limitations did not sufficiently erode the job base on which 18 the Grids are predicated to make it necessary to secure the 19 testimony of a vocational expert and found that plaintiff was 20 not disabled at the relevant times. 21 As you know, the court's function is to determine 22 whether correct legal principles were applied and the result 23 is supported by substantial evidence, defined as such 24 relevant evidence as a reasonable mind would find sufficient 25 to support a conclusion. As the Second Circuit Court of 1 Appeals noted in Brault v. Social Security Administration 2 Commissioner,

from 2012, this is an extremely 3 deferential standard. The standard is more stringent than 4 the clearly erroneous standard that we, as lawyers, are 5 familiar with. The Second Circuit noted that under the 6 substantial evidence standard, once an ALJ finds a fact, the 7 fact can be rejected only if a reasonable fact finder would 8 have to conclude otherwise. 9 The plaintiff, in support of her challenge, raises 10 four interrelated contentions. 11 The first is that, and the key focus, quite 12 honestly, is, surrounds the administrative law judge's 13 handling and treatment of the three forms completed by 14 plaintiff's treating physician Dr. Emily Wood. The argument 15 is that as a treating source, those opinions were entitled to 16 controlling weight, and that it was improper to elevate the 17 opinions of nontreating sources such as Dr. Hennessey and 18 Dr. Long and Occupational Therapist Graveline and 19 Dr. Lorensen over the opinions of Dr. Wood. 20 The second hinges on the first. It alleges that 21 the residual functional capacity is not supported by 22 substantial evidence because the opinions of Dr. Wood and 23 also Nurse Practitioner Couperus-Mashewske were improperly 24 rejected or discounted. 25 The third is, the third contention is that the ALJ 1 should have obtained the testimony of a vocational expert. 2 Again, it's dependent on the additional limitations set forth 3 in Dr. Wood's medical source opinions. 4 And the fourth is that substantial evidence does 5 not support the administrative law judge's rejection of 6 Dr. Lorensen's additional limitations of moderate to marked 7 limitation in bending, lifting, and reaching. 8 In terms of the treating source, Dr. Emily Wood in 9 August of 2018 completed three forms, primarily check-box 10 forms. Those appear at pages 720 of the record through 11 733 -- I'm sorry, 734, and they're extremely limiting. In 12 the first of those, the administrative law judge concluded 13 that plaintiff can walk for 10 minutes before needing a 14 break. The opinion also finds that plaintiff would be off 15 task 25 percent or more of the time and absent more than four 16 times per month and that plaintiff is incapable of even low 17 stress work, that's at page 724. 18 The second form, which focuses on plaintiff's 19 mental condition, is extremely limiting, finding marked 20 limitations in many areas and an extreme limitation in 21 plaintiff's ability to respond appropriately to usual work 22 situations and to changes in a routine work setting. 23 The third form focuses on plaintiff's physical 24 capabilities, finding that she can only occasionally lift up 25 to, and carry up to 10 pounds and can never lift or carry 1 more than 10 pounds. It finds that she can sit for only two 2 hours and stand for one hour and walk for one hour in an 3 eight-hour day. It concludes that she can never reach 4 overhead with left or right hand, can never push or pull with 5 the left or right hand. It finds also that she can never 6 climb ladders, scaffolds, balance, stoop, kneel, crouch, or 7 crawl. Environmentally it also concludes that she can never 8 be subject to unprotected heights, moving mechanical parts, 9 dust, odors, fumes, pulmonary irritants, extreme cold, 10 extreme heat, and vibrations. 11 The forms, as I indicated, were check-box forms 12 with little or no explanation. 13 The administrative law judge discussed and 14 summarized those reports at page 41, also discussed them at 15 page 36, and 41 and 42. It is true, as plaintiff argues, 16 that ordinarily as a treating source, Dr. Wood's opinions 17 regarding the nature and severity of plaintiff's impairments 18 would be entitled to considerable deference, provided they 19 are supported by medically acceptable clinical and laboratory 20 diagnostic techniques and not inconsistent with other 21 substantial evidence. Such opinions as those of Dr. Wood, 22 however, are not entitled to controlling weight if they're 23 contrary to other substantial evidence in the record, 24 including the opinions of other medical experts. And of 25 course it is for the administrative law judge to resolve 1 conflicts in the form of contradictory medical evidence under 2 Veino v. Barnhart,

, pin cite 588, and it's from 3 the Second Circuit 2002. If an ALJ doesn't give controlling 4 weight to a treating source's opinion, the ALJ must apply 5 various factors specified in 20 C.F.R. Sections 404.1527 and 6 416.927 to illuminate how much, if any, weight was given to 7 the treating source's opinion. In the Second Circuit, 8 they're called, so-called the Burgess factors. The failure 9 to apply the proper legal standards for considering treating 10 source opinions can provide a basis for reversal of an ALJ's 11 determination. The Second Circuit has somewhat tempered that 12 rule in Estrella v. Berryhill,

, Second Circuit 13 2019, and the cases that have come before and after Estrella, 14 noting that if the court is satisfied after reviewing the 15 administrative law judge's decision as a whole, the treating 16 source rule was not violated. 17 In this case, Administrative Law Judge Hoffman does 18 cite several reasons for discounting Dr. Wood's opinions. 19 She notes that they're not supported by treatment notes and 20 overall, the overall record, and that's at page 36 when it 21 comes to the mental conditions experienced by the plaintiff 22 and at page 42 when it comes to the physical, and some 23 examples are cited. And let me step back, I know that 24 plaintiff has argued that the administrative law judge, by 25 saying that certain opinions are not supported, medical 1 opinions that is, by treatment notes and records is playing 2 doctor, but it is also true under the regulations that an 3 opinion is entitled to controlling weight, for example, 4 treating source opinion, only if it is supported by 5 substantial evidence, including medical evidence, so it is 6 perfectly legitimate and proper for the administrative law 7 judge to make that analysis. The administrative law judge 8 did not, it is clear, rotely discuss the Burgess factors in 9 her decision, but she did point to some significant reasons 10 why she rejected Dr. Wood's opinions. They're internally 11 inconsistent when you look at them and focus on the walking, 12 how long plaintiff can walk before needing a break, two 13 different answers appear. Manipulation, again, inconsistent. 14 The off task, the 25 percent opinion that plaintiff would be 15 off task is speculative, there's no explanation given as to 16 the basis for that opinion. 17 The issue really is not, as most plaintiffs would 18 like to focus on, whether the court or plaintiff would deem 19 Dr. Wood's opinion controlling. The focus is on, is the 20 ALJ's determination supported by substantial evidence, or 21 would a reasonable fact finder have to conclude otherwise 22 than the administrative law judge did. And also, of course, 23 the court must be satisfied that the treating source rule was 24 not violated under Estrella. I note that these forms from 25 Dr. Wood are check-box forms with minimal explanation. Such 1 forms are notoriously not persuasive. Many courts have found 2 that such forms, without explanation, should be given 3 minimal, if any, weight. 4 This case is somewhat similar to another 5 fibromyalgia case in which the opinions of Dr. Lorensen, as a 6 matter of fact, were discounted, Thomas Roy v. Commissioner 7 of Social Security,

, from the Northern 8 District of New York, Senior District Judge Gary L. Sharpe. 9 Again, it is clear in this case that there are contradictory 10 medical opinions and the weighing of those opinions is 11 entrusted in the administrative law judge under Veino. And 12 the administrative law judge, it's well accepted, can elevate 13 the opinions of other nontreating sources including Dr. Long, 14 Dr. Lorensen, over Dr. Wood, even though Dr. Wood is a 15 treating source, if they're more consistent with the notes of 16 exams and so forth. 17 I also note that there is an opinion, as counsel 18 noted, from an Occupational Therapist Ashleigh Graveline from 19 December 1, 2016, it appears at pages 589 through 621 of the 20 administrative transcript, based upon her examination of the 21 plaintiff and testing. She concludes at page 593 that the 22 plaintiff performed within the light work demand level as 23 defined and outlined in the Dictionary of Occupational 24 Titles. And although plaintiff argues that that was not 25 entitled to consideration since, as an occupational 1 therapist, Ms. Graveline is not an acceptable medical source, 2 the regulations are clear that such opinions can be 3 considered by an administrative law judge under 20 C.F.R. 4 Sections 404.1527(f)(1) and 416.927(f)(1). The next -- and 5 so I find that the treatment of Dr. Wood's opinions did not 6 run afoul of the treating source rule and was properly 7 explained. 8 The next argument is residual functional capacity 9 argument. Residual functional capacity represents a finding 10 of the range of tasks a plaintiff is capable of performing 11 notwithstanding her impairments. Ordinarily, the RFC 12 represents a claimant's maximum ability to perform sustained 13 work activities in an ordinary setting on a regular and 14 continuing basis, meaning eight hours a day for five days a 15 week or an equivalent schedule. An RFC determination must be 16 informed by consideration of all relevant medical and other 17 evidence. 18 In this case, the issue is not, again, whether some 19 evidence supports plaintiff's position but whether 20 substantial evidence supports the administrative law judge. 21 In other words, in many of these cases there can be two right 22 answers, substantial evidence can support a plaintiff's 23 argument and can also support an administrative law judge's 24 determination which is contrary to that argument. It is also 25 true that in formulating an RFC, an ALJ need not discuss 1 literally every shred of evidence. There are some facts 2 supporting plaintiff's position and she acknowledged as such, 3 but the administrative law judge, in formulating her RFC, 4 properly included plaintiff's rather fulsome activities of 5 daily living at page 39, records, medical records showing 6 that medications have controlled many of plaintiff's 7 conditions, including her psoriatic arthritis and her pain at 8 page 39. She cites relatively benign x-ray and MRI evidence 9 at pages 39 to 40. She cites medical exams showing 10 relatively benign findings at page 40. She relied on 11 Occupational Therapist Graveline's evaluation and 12 Dr. Lorensen's consultative opinions. Dr. Lorensen in her 13 consultative report, which appears at pages 411 to 415 of the 14 administrative transcript, she concludes that plaintiff 15 suffers from no gross limitations in sitting, standing, 16 walking, and handling small objects with the hands. She does 17 experience moderate to marked limitations for bending, 18 lifting, and reaching. The administrative law judge of 19 course did, and I'll get to that in a moment, not accept 20 Dr. Lorensen's opinion in whole which of course she's 21 certainly entitled to do. She's entitled to accept some 22 parts but not a whole of a medical opinion. The third 23 argument -- And so I don't -- I do find that the residual 24 functional capacity finding of the administrative law judge 25 is supported by substantial evidence. 1 The third argument is that a vocational expert 2 should have been called to fill in the void created by the 3 additional exertional and nonexertional limitations 4 experienced by the plaintiff. That argument really hinges 5 upon Dr. Wood's additional limitations and so the argument 6 fails since I have already found that her opinions were 7 properly discounted. 8 The last issue pertains to the treatment of 9 Dr. Lorensen's opinion and specifically surrounds the 10 limitation, the moderate to marked limitation in bending, 11 lifting, reaching. The administrative law judge acknowledged 12 it but found it is not supported at page 41, and in doing so, 13 she relied upon Occupational Therapist Graveline's opinion 14 and plaintiff's activities of daily living. She explained 15 the rejection of the moderate limitation in reaching. 16 The case is very similar to, as Commissioner 17 argued, Dierdre R. v. Commissioner of Social Security, 2018

from Administrative Law Judge -- I'm sorry, from 19 Magistrate Judge Thérèse Wiley Dancks. In note 7 of her 20 decision, Judge Dancks also notes that moderate to marked 21 limitations does not necessarily preclude the performance of 22 light work. So if, and I say only if because I do think that 23 rejection was properly explained and supported by substantial 24 evidence, but if Dr. Lorensen's limitation on reaching were 25 to have been accepted, or should have been accepted, it would 1 be a harmless error since under Dierdre, as well as Babcock 2 v. Berryhill,

, note 13, in that case it was a 3 moderate restriction in bending and lifting, does not 4 preclude light work. It's also supported by Moxham v. 5 Commissioner of Social Security, that's

, at 6 *8. In that case, the consultative expert, Dr. Magurno, 7 opined that plaintiff had marked limitations in squatting, 8 lifting, carrying, and mild limitations for walking, 9 standing, sitting, and bending, and the judge in that case, 10 Magistrate Judge Daniel J. Stewart, concluded that plaintiff 11 had failed to illustrate how those marked limitations in 12 those areas would be inconsistent with light work. So, and I 13 guess as a backdrop, we have to bear in mind that it is 14 always the plaintiff's burden at least through step four to 15 establish additional limitations that were not accounted for 16 in the residual functional capacity. In this case, I find 17 that burden was not met. 18 So in conclusion, I find that the administrative 19 law judge's decision resulted from the application of proper 20 legal principles and is supported by substantial evidence. I 21 will grant judgment on the pleadings to the defendant and 22 order dismissal of plaintiff's complaint. Again, thank you, 23 both counsel, I hope you enjoy your summer. 24 MR. HASSELER: Thank you, your Honor. 25 MR. HENRY: Thank you, your Honor. 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the digitally-recorded proceedings 11 held in the above-entitled matter and that the 12 transcript page format is in conformance with the 13 regulations of the Judicial Conference of the United 14 States. 15 16 Dated this 9th day of July, 2021. 17 18 19 /S/ JODI L. HIBBARD

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