Fox v. Kijakazi

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________ LEE F., Plaintiff, v. Civil Action No. 3:20-CV-1272 (DEP) KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, 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. RAMI VANEGAS, ESQ.

625 JFK Building 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 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on March 23, 2022, 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

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.

GRANTED.

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: March 24, 2022 Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x LEE F., Plaintiff, vs. 3:20-CV-1272 KILOLO KIJAKAZI, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on March 23, 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: LACHMAN GORTON LAW FIRM Attorneys at Law P.O. Box 89 1500 E. Main Street Endicott, New York 13761-0089 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: RAMI VANEGAS, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (The Court and all counsel present by 2 telephone.)

3 THE COURT: All right. Let me begin by thanking both of you for excellent and spirited presentations, both in written form and during this hearing.

6 The plaintiff has commenced this proceeding pursuant to 42 United States Code Sections 405(g) and 1383(c)(3) to challenge an unfavorable determination by the Acting Commissioner of Social Security in connection with his 10 application for benefits.

11 The background is as follows: Plaintiff was born 12 in March of 1987, he is almost 35 years of age, and actually 13 now is 35, having recently had a birthday. He stands 14 5-foot-9 or 10 inches in height and weighs 380 pounds, 15 qualifying him as obese. Plaintiff lives in Binghamton with 16 his wife and a child, a daughter, who by my calculations is 17 approximately five years of age now. She was one-and-a-half 18 on June 7, 2018. The wife and daughter are both disabled.

19 Plaintiff has a high school diploma and while in school 20 attended regular classes. Plaintiff is right-hand dominant 21 and has a driver's license and drives. Plaintiff last worked 22 in February of 2010 but left that job due to experiencing a 23 job-related injury when he received an electrical shock from 24 some piece of equipment he was operating. While working, he 25 was employed as a residential specialist at the ARC, Association for Retarded Children.

2 Plaintiff physically suffers from obesity, mild obstructive sleep apnea, gastroesophageal reflux disorder, or GERD, much easier for me to pronounce, and hypertension. He underwent a craniotomy in 1997 to remove a blood clot. There was no evidence of residual difficulties associated with that surgery.

8 Mentally, plaintiff suffers from conditions that have been variously diagnosed as general anxiety disorder, 10 obsessive compulsive disorder, or OCD, panic disorder with 11 agoraphobia, and social anxiety. He clearly suffers from 12 anxiety around people and low self-esteem. He has received 13 treatment from UHS Primary Care, principally with Family 14 Nurse Practitioner Melissa Skiadas and Physician's Assistant 15 Michael Feeney. He receives mental health treatment through 16 UHS Health/Binghamton Hospital outpatient mental health where 17 he sees Licensed Clinical Social Worker Megan Hagerbaumer 18 weekly, and has since 2016. Periodically, he also sees 19 Dr. Sobia Mirza, a psychiatrist.

20 In terms of activities of daily living, plaintiff 21 is capable of dressing, bathing, grooming, does some cooking, 22 laundry, cleaning, he reads, plays video games, plays cards 23 with friends, socializes with friends, cares for his wife and 24 daughter. The daughter apparently does or did need feeding 25 through a food pump every two hours. He takes the daughter to her medical appointments and he is active on social media.

2 Plaintiff has been prescribed over time various medications including clonazepam, Paroxetine or Paxil, Abilify, Zoloft, Celexa, Klonopin, Toprol, and omeprazole.

5 The Klonopin apparently has been helpful in calming plaintiff's anxiety, according to him. Plaintiff does not consume alcohol, smoke, or use illicit drugs.

8 Procedurally, plaintiff applied for Title II and Title XVI benefits in 2012, that was apparently denied.

10 Plaintiff's more recent application was made on January 13, 11 2018, alleging an onset date of February 9, 2010. It was 12 noted that plaintiff's last date of insured status was 13 December 31, 2013. Plaintiff in his function report claims 14 to suffer from agoraphobia, generalized anxiety disorder, 15 social anxiety, OCD, and depression. The hearing was 16 conducted by Administrative Law Judge Shawn Bozarth on 17 November 5, 2019 to address plaintiff's claim for benefits.

18 On January 13, 2020, ALJ Bozarth issued an unfavorable 19 decision which became a final determination of the agency on 20 August 20, 2020, when the Social Security Administration 21 Appeals Council denied plaintiff's application for review.

22 This action was commenced on October 15, 2020 and is timely.

23 In his decision, ALJ Bozarth applied the familiar 24 five-step sequential test for determining disability. He 25 first noted that plaintiff had not engaged in substantial gainful activity since his alleged onset date of February 9, 2010.

3 He next concluded that plaintiff does suffer from severe impairments that impose more than minimal limitations on his ability to perform basic work functions and specifically general anxiety disorder, obsessive compulsive disorder, panic disorder with agoraphobia, and obesity.

8 At step three the ALJ concluded that plaintiff's conditions do not meet or medically equal any of the listed 10 presumptively disabling conditions set forth in the 11 Commissioner's regulations. He noted first that although 12 there is no listing corresponding to obesity, he has 13 considered plaintiff's obesity. He also concluded that 14 plaintiff's conditions from a mental point of view do not 15 meet or medically equal Listings 12.04, 12.06, or 12.08.

16 The administrative law judge next concluded that 17 notwithstanding his impairments, plaintiff retains the 18 residual functional capacity, or RFC, to perform light work 19 as defined in the regulations but limited plaintiff to simple 20 routine and repetitive tasks in low-stress jobs which are 21 jobs that are defined as goal-oriented and which do not have 22 an assembly line, piecework, or numerical production quota 23 pace. He also limited plaintiff to occasional decision 24 making, occasional changes in workplace setting, occasional 25 changes to workplace routine, occasional contact with supervisors, minimal contact with coworkers, and no contact with customers or the public.

3 Applying that RFC at step four, the administrative law judge concluded that plaintiff was not capable of performing his past relevant work.

6 Proceeding to step five, the ALJ first noted that if plaintiff could perform a full range of light work, a finding of no disability would be directed by the Medical-Vocational Guidelines, specifically Grid Rule 202.21.

10 Based on the testimony of a vocational expert, the ALJ 11 concluded that plaintiff is capable of performing work that 12 is available in the national economy, citing as 13 representative positions garment sorter, price marker, and 14 mail clerk, nonpostal, and therefore concluded that plaintiff 15 was not disabled.

16 The court's task, of course, is to determine two 17 things: Whether correct legal principles were applied by the 18 administrative law judge, and whether substantial evidence 19 supports the resulting determination. Substantial evidence 20 is defined as such relevant evidence as a reasonable mind 21 might accept as adequate to support a conclusion. The Second 22 Circuit in Brault v. Social Security Administration 23 Commissioner, 683 F.3d 443 from 2012, noted that this is an 24 exceedingly deferential standard and under that standard, 25 once an ALJ finds a fact, that fact can be rejected only if a reasonable fact finder would have to conclude otherwise.

2 The plaintiff in this case raises three contentions -- really two and then the third is derivative.

4 The first claim of the plaintiff is that the ALJ erred in evaluating the three available medical opinions from Dr. T.

6 Harding, the Social Security agency consultant, nonexamining; Dr. Mary Ann Moore, the examining consultant; and Licensed Clinical Social Worker Megan Hagerbaumer. The primary focus of the argument is on whether plaintiff could meet the 10 on-task and attendance requirements of full-time work. The 11 second argument is addressed to the ability to work 12 occasionally with supervisors, defined as up to one-third of 13 the time, and the third challenges the step five finding 14 because the finding is based on a flawed residual functional 15 capacity finding.

16 I note as a backdrop that if there are conflicts in 17 the medical evidence on medical opinion evidence in the first 18 instance, provided of course that there is proper explanation 19 to allow for meaningful judicial review, the ultimate 20 determination of which to accept is entrusted to the 21 administrative law judge. Veino v. Barnhart, 312 F.3d 578, 22 from the Second Circuit, 2002. Because of the date of filing 23 of plaintiff's most recent application for benefits, this 24 case is governed by the new medical regulations. Under those 25 regulations, the ALJ does not any longer defer to or give any specific evidentiary weight, including controlling weight, to any medical opinions or prior administrative medical findings. Instead, the ALJ is required to evaluate each of those medical opinions using the relevant factors, principally supportability and consistency. The ALJ is required to articulate how persuasive he or she found each medical opinion and must explain how he or she considered the supportability and consistency of those medical opinions.

9 The ALJ may also, but is not required to, explain how he or 10 she considered the other relevant factors set forth in the 11 regulations including the source's relationship with the 12 claimant, specialization, and other factors that tend to 13 support or contradict the medical opinion. And of course 14 under the new regulations, the term acceptable medical source 15 is expanded. Although there has never been a pronouncement 16 to date from the Second Circuit, I also believe that the 17 Second Circuit's opinion in Estrella remains vibrant, meaning 18 that if the court is convinced based on the record as a whole 19 that the regulations have been abided by, the fact that maybe 20 consistency and supportability are not incanted as specific 21 terms does not require remand.

22 In this case, there are three available medical 23 opinions. The first comes from LCSW Hagerbaumer. It was 24 issued on October 3, 2019, it appears at 577 to 578 of the 25 administrative transcript. In it, Social Worker Hagerbaumer rates plaintiff as extremely limited in maintaining regular attendance without interruptions from psychological-based symptoms, extreme being defined in the form as there is a major limitation in this area. There is no or very little useful ability to function in this area. Plaintiff is also rated as markedly limited in the ability to perform activities within a schedule, be punctual, perform at a consistent pace, marked meaning there is substantial loss in the ability to effectively function greater than 33 percent.

10 When asked about off task, the Social Worker rated plaintiff 11 as markedly limited in this area, meaning more than 12 20 percent. And when asked about absences, she opined that 13 plaintiff would be absent three or more days per month.

14 The administrative law judge considered this 15 opinion in his decision at page 18 of the administrative 16 transcript and found it to be not persuasive, citing as 17 reasons: One, it is not supported by the record; two, while 18 treatment records show anxiety, depression, restlessness and 19 poor eye contact, the plaintiff generally retained 20 appropriate behavior, logical thought process, fair to normal 21 attention, concentration, fair memory, average intelligence, 22 fair insight and judgment; three, denied suicidal or 23 homicidal ideations and reported that his medications worked 24 well at reducing his anxiety, panic attacks, irritability, 25 and depression; and four, he reported that he was able to manage his own personal care, perform household chores, take his daughter -- take care of his daughter which includes keeping her on a feeding schedule and taking her to doctor's appointments, and take care of his wife, prepare simple meals, shop in stores and by computer and drive.

6 There is clearly some discussion that allows for meaningful review. These are check-box forms, although that per se does not disqualify a medical source opinion. It is certainly a factor, however, in whether or not it is strong 10 evidence or weak evidence, particularly when there's little 11 explanation. There is explanation on page 578, I will 12 acknowledge, but in my view the ALJ did consider the 13 supportability and consistency of this opinion sufficient to 14 allow meaningful review and I don't find any error in that 15 regard.

16 The second medical opinion in the record is from 17 Dr. Mary Ann Moore. It is based on an examination of the 18 plaintiff on June 7, 2018, it appears at pages 450 to 454 of 19 the administrative transcript. The plaintiff, it was noted, 20 was appearing to experience a panic attack during the 21 session. The plaintiff was found to have intact attention 22 and concentration, intact recent and remote memory skills, 23 was found to have some limitations including significantly 24 marked limitations regarding the ability to interact 25 adequately with supervisors, coworkers, and the public and sustain an ordinary routine and regular attendance at work.

2 The administrative law judge addressed the opinion in page 18 of the administrative transcript, rejected the marked limitation but explained the rejection, and in my view, it was properly explained. The marked limitation on the ability to interact with others, one could argue, is accommodated in the residual functional capacity which is very limiting in terms of interacting with others and certainly coworkers and the public in particular. In my 10 view, there is a proper explanation, and as the Commissioner 11 notes and case law is clear, the administrative law judge is 12 not required to accept any particular opinion in whole.

13 The third opinion comes from Dr. T. Harding, a 14 psychologist who did not examine the plaintiff but did have 15 available to him some significant treatment records that 16 existed to date, as well as the consultative report of 17 Dr. Moore. His opinion was given on June 13, 2018, it 18 appears at pages 55 to 64 of the administrative transcript.

19 He does find, as counsel has argued, moderate limitation, 20 ability of the plaintiff to perform within a schedule, 21 maintain regular attendance, and be punctual within customary 22 tolerances. There is case law that suggests that a moderate 23 limitation in a mental situation is not necessarily 24 inconsistent with the performance of unskilled work. The 25 mental RFC finding concludes that plaintiff does retain the ability to perform unskilled work activity, avoiding working closely with others and working directly with the public.

3 This is clearly indicative of plaintiff's ability to perform on a full-time regular basis and the limitations on interaction are in my view accommodated by the residual functional capacity finding.

7 I agree with the plaintiff, when plaintiff's activities of daily living are considered, that many of the activities of daily living, including denial of suicidal and 10 homicidal ideations, are not necessarily indicative of the 11 ability to perform full-time regular work and go out and be 12 with the public, but as I indicated, plaintiff does take his 13 daughter to her doctor's appointments, he does go out of the 14 house for card games, he has gone out of the house for 15 multiple functions, and he does go weekly to his counselor's 16 appointment. I believe the activities of daily living are 17 relevant and do provide some support, as the administrative 18 law judge found, to the residual functional capacity finding.

19 There is no doubt that plaintiff has significant 20 psychological issues, but in my view, the residual functional 21 capacity finding is supported. I found one entry to be -- 22 well, two factors to be significant. One, plaintiff alleges 23 an onset date of 2010. There are, however, no treatment 24 records until, I believe it was November of 2015, no evidence 25 that he received mental health treatment prior to that time.

1 One other thing I found significant was an exchange that occurred on page 38 of the administrative transcript. The administrative law judge asked the question, "Well, what if a job could be found that you could just have occasional contact with a supervisor or coworkers and no contact with the public, why couldn't you do something like that? Answer: I spend my time during the day taking care of my wife and daughter." Now he did attempt to backtrack and say that was not the only reason, but clearly that is one suggested reason 10 why he's not working.

11 The bottom line is the ALJ must assess the RFC 12 based upon the entire record, not just the three medical 13 opinions, does not need to track any one medical opinion. On 14 page 19 the administrative law judge has a paragraph that 15 summarizes the basis for his RFC finding. I cannot find that 16 no reasonable fact finder would conclude as the ALJ did. As 17 I mentioned before, I think the other point raised by the 18 plaintiff, working occasionally with supervisors adequately 19 addresses the concerns in that regard, even Dr. Harding only 20 suggested that the plaintiff not work closely with others.

21 The RFC is more limiting than Dr. Harding because it provides 22 that there will be no contact with the public and so there's 23 no prejudice to the plaintiff in the fact that there is a 24 more restrictive RFC finding in this regard than opined by 25 Dr. Harding.

1 I agree with the Commissioner's counsel, this is a case where there is conflicting evidence, it's a case where another ALJ or I could have perhaps found in the plaintiff's favor and yet my task is not to determine what I would find or what a reasonable fact finder would find, I have to determine whether the ALJ's finding is supported by substantial evidence and whether no reasonable fact finder could have found or could have concluded as he did, finding the facts related to plaintiff's ability to be on task and 10 meet attendance requirements of full-time work, and I'm not 11 able to make that finding.

12 So I conclude there is no error in the residual 13 functional capacity determination and therefore the step five 14 determination is not flawed. I will therefore grant judgment 15 on the pleadings to the defendant and order dismissal of 16 plaintiff's complaint. Thank you both, I hope you have a 17 good afternoon.

18 MR. GORTON: Thank you, your Honor.

19 MS. VANEGAS: Thank you, your Honor.

20 (Proceedings Adjourned 10:40 a.m.)

1 CERTIFICATE OF OFFICIAL REPORTER 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal Official Realtime 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 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.

16 Dated this 23rd day of March, 2022.

19 /S/ JODI L. HIBBARD 20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter