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

CHRISTINE M.,

Plaintiff, v. Civil Action No. 8:20-CV-1494 (DEP)

KILOLO KIJAKAZI, Acting Commissioner of Social Security,1

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

ANDERSON LAMB & ASSOCIATES ARTHUR P. ANDERSON, ESQ. P.O. Box 1624 Burlington, VT 05402-1624

FOR DEFENDANT

SOCIAL SECURITY ADMIN. JAMES J. NAGELBERG, ESQ. 625 JFK Building 15 New Sudbury St Boston, MA 02203

1 Plaintiff’s complaint named Andrew M. Saul, in his official capacity as the Commissioner of Social Security, as the defendant. On July 12, 2021, Kilolo Kijakazi took office as the Acting Social Security Commissioner. She 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

(g). 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), are cross-motions for judgment on the pleadings.2 Oral

argument was conducted in connection with those motions on February 17, 2022, 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

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. 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. 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: February 22, 2022 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x CHRISTINE M.,

Plaintiff,

vs. 8:20-CV-1494

KILOLO KIJAKAZI, in her capacity as Acting Commissioner of the Social Security Administration,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on February 17, 2022, 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: ANDERSON LAMB & ASSOCIATES Attorneys at Law P.O. Box 1624 Burlington, Vermont 05402-1624 BY: ARTHUR P. ANDERSON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel J.F.K. Federal Building Room 625 Boston, Massachusetts 02203 BY: JAMES J. NAGELBERG, 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: Let me begin by thanking both counsel 4 for excellent written and verbal presentations. I found this 5 to be an interesting case and a close case, quite honestly. 6 Plaintiff has commenced this proceeding pursuant to 7

(g) to challenge a 8 determination by the Acting Commissioner of Social Security 9 finding that she was not entitled to the disability benefits 10 for which she applied. 11 The background is as follows: Plaintiff was born 12 in March of 1973 and is currently 49 years of age. She was 13 43 years old at the time of the alleged onset of her 14 disability on July 8, 2016. Plaintiff stands 5 foot 1 inch 15 in height, weighs approximately 115 pounds. Plaintiff lives 16 in Peru, New York alone in some sort of duplex residence. 17 She is separated from her husband. She also has one adult 18 daughter. Plaintiff attended high school and has what I 19 would assume are associate degrees following two years of 20 college studying math and science, business and nursing. 21 Plaintiff is right-handed. Plaintiff has no driver's license 22 because of multiple driving while intoxicated charges. She 23 intends to reapply for her driver's license. Plaintiff 24 stopped working in July of 2016. Her work history is 25 primarily that of a registered nurse in various hospital, 1 nursing homes, and hospice settings. 2 Plaintiff suffers from mental impairments including 3 bipolar disorder which has been described as rapidly cycling, 4 attention deficit and hyperactivity disorder, and generalized 5 anxiety disorder. She experiences visual and audio 6 hallucinations including believing she sees bugs on the floor 7 and hears voices. Plaintiff was hospitalized involuntarily 8 for two days in 2014 for various reasons, including alcohol 9 use and overdose. She was also taken to the emergency room 10 of a hospital in August of 2015 due to alcohol intoxication. 11 Physically, plaintiff has a history of back pain 12 but that does not appear to be the focus of plaintiff's claim 13 for disability benefits. 14 Plaintiff has undergone treatment from various 15 sources, including Nurse Practitioner Sarah Howell who she 16 began seeing in November 2018, RPA Robin Hinson, Dr. Taher 17 Zandi from January '18 forward. Dr. Zandi tested, he is a 18 neuropsychologist and tested plaintiff on three occasions. 19 The plaintiff also has seen a behavior medicine specialist 20 NPP Jennifer Kanaly who she saw four times from January 21 through March of 2018, and LMSW Leticia Ferby who she saw 22 three times. She receives some sort of home counseling 23 weekly. 24 Plaintiff has been prescribed various medications 25 including Adderall, Depakote, Klonopin, trazodone, Vraylar, 1 and medicines have been described as helping her conditions 2 somewhat. 3 Activities of daily living of the plaintiff include 4 the ability to dress, bathe, groom, do household chores, 5 watch television, walk her dog, she works in the garden, and 6 she can use the microwave. 7 Plaintiff had drug and alcohol problems in the 8 past. She last consumed alcohol, according to her, in May of 9 2016. 10 Procedurally, plaintiff made an earlier application 11 in April of 2018. That application was denied and a request 12 to reopen that earlier application was denied by the 13 administrative law judge in this case. On October 2, 2018, 14 plaintiff applied again under Title II for disability 15 benefits, alleging an onset date of July 8, 2016 and arguing 16 that she was disabled on the basis of her bipolar disorder 17 and ADHD. A hearing was conducted on October 16, 2019 with a 18 vocational expert by Administrative Law Judge Asad M. 19 Ba-Yunus. On November 7, 2019 the administrative law judge 20 issued an unfavorable decision which became a final 21 determination of the agency on October 6, 2020 when the 22 Social Security Administration Appeals Council denied 23 plaintiff's application for review. This action was 24 commenced on December 4, 2020, and is timely. 25 In his decision, the ALJ applied the familiar 1 five-step sequential test for determining disability. He 2 found at step one, after concluding that plaintiff was last 3 insured on December 31, 2021, that plaintiff had not engaged 4 in substantial gainful activity since July 8, 2016. 5 At step two, he concluded that plaintiff suffers 6 from severe impairments that impose more than minimal 7 limitations on her ability to perform basic work functions 8 including bipolar disorder and ADHD, rejecting alcohol abuse 9 as an additional severe impairment. 10 At step three, the ALJ concluded plaintiff's 11 conditions do not meet or medically equal any of the listed 12 presumptively disabling conditions set forth in the 13 Commissioner's regulations, specifically considering Listings 14 12.04 and 12.06. 15 The ALJ next concluded that notwithstanding her 16 impairments, plaintiff retains the residual functional 17 capacity or RFC to perform the full range of work at all 18 exertional levels with the following nonexertional 19 limitations: The plaintiff may perform unskilled simple 20 routine tasks and may have occasional interaction with 21 coworkers and the general public and can tolerate occasional 22 changes to a routine work setting. Applying that RFC 23 finding, the ALJ concluded that plaintiff, at step four, is 24 incapable of performing her past relevant work. 25 At step five, noting the shifting of burdens, the 1 administrative law judge concluded based upon the testimony 2 of the vocational expert that plaintiff is capable of 3 performing available work in the national economy including 4 as a hand packager, industrial cleaner, and dishwasher and 5 therefore concluded that she is not disabled. 6 As you both know, the court's function is limited 7 in this case to determining whether correct legal principles 8 were applied and whether the result is supported by 9 substantial evidence, defined as such relevant evidence as a 10 reasonable mind would find sufficient to support a 11 conclusion. As the Second Circuit has noted in Brault v. 12 Social Security Administration Commissioner,

13 from the Second Circuit 2012, this is an extremely 14 deferential standard, more so than the clearly erroneous 15 standard that lawyers are familiar with. Under the 16 substantial evidence standard, once an ALJ makes a finding, 17 that finding may be rejected only if a reasonable fact finder 18 would have to conclude otherwise. 19 In this case, plaintiff makes two basic 20 contentions: First, arguing that the residual functional 21 capacity is lacking because there is no limitation associated 22 with plaintiff's being off task and absent and there is no 23 discussion by the ALJ concerning that subject; secondly, she 24 challenges the weight afforded by the ALJ to Dr. Zandi's 25 opinions and seeks a remand with a directed finding of 1 disability arguing that there is persuasive proof in the 2 record to establish disability. 3 Turning first to the off-task and absence issue. 4 Admittedly, there's no finding or limitation in the RFC 5 concerning those issues, nor is there any direct discussion 6 of the issues. There are several opinions in the record that 7 speak to the issue. Those opinions of course are subject to 8 evaluation under the new regulations. Under those 9 regulations an ALJ does not confer or give any specific 10 evidentiary weight, including controlling weight, to any 11 medical opinions or prior administrative medical findings 12 including those from a claimant's medical sources. Instead, 13 the ALJ must consider those medical opinions using factors 14 that are set out including particularly supportability and 15 consistency of the medical opinions. The ALJ must articulate 16 how persuasive he or she found each medical opinion and must 17 explain how he or she considered the supportability and 18 consistency of those medical opinions. The ALJ may also, but 19 is not required, to explain how he or she considered the 20 other relevant factors as appropriate in each case. 20 21 C.F.R. Section 404.1520c(b). 22 Supportability is defined under the regulations as 23 follows: The more relevant the objective medical evidence 24 and supporting explanations presented by a medical source are 25 to support his or her medical opinions or prior 1 administrative medical findings, the more persuasive the 2 medical opinions or prior administrative medical findings 3 will be. Consistency is defined as the more consistent a 4 medical opinion(s) or prior administrative medical finding(s) 5 is or are with the evidence from other medical sources and 6 nonmedical sources in the claim, the more persuasive the 7 medical opinions or prior administrative medical findings 8 will be, and that appears at 20 C.F.R. Section 404.1520c(c). 9 Of course the weight to be given to conflicting 10 medical opinions is a matter entrusted to the administrative 11 law judge, Veino v. Barnhart,

, from the Second 12 Circuit 2002. 13 The first opinion that speaks to -- not the first 14 chronologically, but one opinion that speaks to the issue of 15 off task and absenteeism at least indirectly is from Dr. H. 16 Ferrin, a state agency consultant. His opinions are from 17 December 17, 2019 and appear in the record at administrative 18 transcript 91 through 103. In his mental RFC conclusion, 19 Dr. Ferrin did state, among other things, that the claimant 20 can maintain adequate attention and concentration to complete 21 work-like procedures and can sustain a routine. He did note 22 some difficulty in socialization and adaptation. In the 23 worksheet, interestingly, on page 99, Dr. Ferrin found that 24 plaintiff is moderately limited in her ability to complete a 25 normal workday and workweek without interruptions from 1 psychologically-based symptoms and to perform at a consistent 2 pace without an unreasonable number and length of rest 3 periods. 4 Another opinion was given on the issue by Dr. Brett 5 Hartman on November 28, 2018. I should say that Dr. Ferrin's 6 opinion was found partially persuasive by the administrative 7 law judge. Dr. Hartman's opinion appears at 541 to 545. It 8 was found partially persuasive. Dr. Hartman in his medical 9 source statement found moderate to marked difficulty 10 sustaining concentration, moderate to marked difficulty in 11 regulating her emotions, she has a marked difficulty in 12 sustaining an ordinary routine due to mood swings. 13 Nurse Practitioner Sarah Howell gave an opinion on 14 October 6, 2019 that appears at page 800 to 801. In that 15 opinion, Nurse Practitioner Howell concluded that plaintiff 16 would miss upwards of 75 percent of the time due to her mood 17 swings and would only be on task two out of eight hours with 18 frequent breaks. That opinion is found by the administrative 19 law judge not to be persuasive based on treatment notes and 20 plaintiff's activities of daily living. 21 Dr. Zandi issued three opinions, one on June 1, 22 2018, appears at page 426 to 443. I did not find any opinion 23 that directly spoke to work activities directly. It was 24 found to be not persuasive by the administrative law judge 25 and of limited use. 1 On November 15, 2018, Dr. Zandi issued a second 2 opinion at page 804 to 809, finding that plaintiff would be 3 off task more than 20 percent of the time. She does not have 4 the ability to concentrate and focus on job tasks for 5 two-hour periods and would need extra breaks. That was found 6 to be only partially persuasive. 7 On August 27, 2019, Dr. Zandi issued another 8 opinion at pages 787 to 799, found partially persuasive. In 9 it he noted some improvement in cognitive areas, no 10 improvement in emotional aspects, and stated that plaintiff 11 cannot sustain a routine. The administrative law judge 12 acknowledged Dr. Zandi's opinion concerning plaintiff's 13 inability to maintain concentration and complete work-like 14 procedures and sustain a routine, but does not discuss why it 15 was not included in the RFC. 16 I find this to be a very close case and of course 17 it is not the court's function to reweigh these opinions. 18 However, and I acknowledge the cases that suggest that the 19 opinion of Dr. Ferrin can be given more weight than another 20 opinion because Dr. Ferrin is a qualified expert in the field 21 of Social Security Disability such as Sonjah H. v. Berryhill, 22

, from the Northern District of New York, 2019. 23 However, Dr. Ferrin did note at least some deficit in this 24 area. It is a critical area that should have been addressed. 25 I agree with my colleague and good friend, retired Magistrate 1 Judge John M. Conroy, who in Nicholas L. v. Commissioner of 2 Social Security, another case involving a plaintiff, 3 parenthetically, represented by Mr. Anderson,

4 from the District of Vermont 2020, that because this issue 5 was front and center and was even identified by the 6 administrative law judge both in his hypothetical to the 7 vocational expert and in his opinion, there should have been 8 a more fulsome discussion as to why implicitly from his RFC 9 he did not find, he did not agree and rejected the suggestion 10 that plaintiff would be off task and/or absent to an extent 11 that would preclude work activities. Judge Conroy noted in 12 that decision, like in this case, that the ALJ apparently 13 rejected these critical opinions without analysis because he 14 did not include limitations regarding being off task, 15 additional breaks, or work absences in the RFC determination. 16 The opinion of Dr. Ferrin that plaintiff would be 17 moderately limited in her ability to complete a normal 18 workday and workweek without interruptions is not wholly 19 inconsistent with these other opinions, as District Judge 20 Charles Siragusa noted in Bruner v. Colvin,

21 from the Western District of New York 2017. 22 So I do find error to the extent that the 23 administrative law judge did not explain his reasoning for 24 rejecting these opinions which all uniformly say that 25 plaintiff, because of her rapidly cycling bipolar disorder, 1 has at least some deficit in her ability to maintain 2 concentration and attention and keep to a routine schedule. 3 I don't, as plaintiff argues, I do not find persuasive proof 4 of disability in this case, nor am I reweighing the medical 5 opinions in the record, that is clearly a matter for the 6 Commissioner. But I do find that there is a need for more 7 explanation so that the court can meaningfully review the 8 determination and ensure that it is supported by substantial 9 evidence, so I will vacate the Commissioner's determination 10 and remand the matter for further consideration, and 11 specifically for consideration of plaintiff's ability to 12 maintain concentration and attention and to keep a schedule. 13 Thank you both for excellent presentations, I hope 14 you have a good afternoon. 15 MR. ANDERSON: Thank you, your Honor. 16 MR. NAGELBERG: Thank you, your Honor. 17 (Proceedings Adjourned, 12:04 p.m.) 18 19 20 21 22 23 24 25 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 stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 18th day of February, 2022. 17 18 19 /S/ JODI L. HIBBARD

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