Stout v. Commissioner of Social Security

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

JOHNRYAN S., Plaintiff, v. Civil Action No. 5:20-CV-1458 (DEP)

COMMISSIONER OF SOCIAL SECURITY, Defendant.

APPEARANCES: OF COUNSEL: FOR PLAINTIFF OLINKSY LAW GROUP MELISSA A. DELGUERCIO, ESQ.

250 South Clinton Street, Suite 210 HOWARD D. OLINSKY, ESQ.

Syracuse, NY 13202 FOR DEFENDANT SOCIAL SECURITY ADMIN. CHRISTOPHER L. POTTER, 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), are cross-motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on July 6, 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 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 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. 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 42 U.S.C. § 405(g) and closing this case.

U.S. Magistrate Judge Dated: July 11, 2022 Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -----------------------------------------------------x JOHNRYAN S., Plaintiff, vs. 20-CV-1458 COMMISSIONER OF SOCIAL SECURITY, Defendant. -----------------------------------------------------x TRANSCRIPT OF DECISION BEFORE THE HONORABLE DAVID E. PEEBLES held on July 6, 2022 S. Clinton Street, Syracuse, New York APPEARANCES (by telephone) For Plaintiff: OLINSKY LAW GROUP South Clinton Street Syracuse, New York 13202 BY: MELISSA A. DELGUERCIO, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION New Sudbury Street Boston, MA 02203 BY: CHRISTOPHER POTTER, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: Let me begin by thanking counsel for excellent and spirited presentations. I've enjoyed working with you on this matter.

4 Plaintiff has commenced this proceeding pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3) to challenge an adverse determination by the Commissioner of Social Security finding that he was not entitled to the Title XVI benefits for which he applied. The background is as follows.

10 Plaintiff was born in January of 1984. He stands 5-foot 7 or 5-foot 8 inches in height and has weighed between 158 and 168 pounds. He lives with his mother and son who was 11 years of age in December of 2019. They live in Syracuse, New York, in a two-family home.

15 Plaintiff has a sixth grade education and while in school attended regular classes. He is right-handed.

17 Plaintiff has no driver's license and he does not take public transportation. For transportation to appointments he uses Medicaid transports.

20 Plaintiff has worked in the past but stopped in February of 2018 after being stabbed in the head by his mother's boyfriend during a domestic incident resulting in a traumatic brain injury and a plate being placed in his head.

24 While he was employed he occupied some short-term casual positions as a cashier in such places as Dunkin' Donuts, Price Chopper, and in a gas station.

2 Plaintiff also was in prison on and off over a period of eight years, having been convicted for such crimes as burglary, knife assault, and possession of stolen credit cards. Included in that is seven months spent in solitary confinement.

7 Although plaintiff's physical condition is not at issue in this case, he does suffer from some issues, including overactive bladder, history of Grave's disease, GERD, and chronic leg pain.

11 Mentally, plaintiff suffers from posttraumatic stress disorder, or PTSD, anxiety disorder with agoraphobia, depression, a mood disorder, a panic disorder, and a history of opioid abuse in remission. He went through outpatient substance abuse therapy in 2018. He also reports that he was addicted, at least he told Dr. Shapiro, from 2006 to 2010.

17 Plaintiff has panic attacks two times per day on average and suffers from paranoia. He notes that he was molested by a neighbor at age seven or eight.

20 Plaintiff has treated with various therapists and healthcare providers, including Dr. Daniel Ratnarajah, R-A-T-N-A-R-A-J-A-H, his primary care physician. Also Dr. Nevena, N-E-V-E-N-A, Radonjic, R-A-D-O-N-J-I-C, a psychiatrist who has treated the plaintiff since October of 2018. He also treated with Circare, C-I-R-C-A-R-E, from January to May of 2018. He also sees therapist Bruce Green.

2 Plaintiff is a former smoker having smoked approximately one pack per day, but testified that he quit.

4 In terms of activities of daily living, plaintiff is able to bathe, dress, groom, cook, clean, do laundry. He did play internet poker, although at page 64 during the hearing he testified that he does not any longer. He is able to socialize with a cousin, watch TV. He once drove to Maine to pick up his son who was reportedly suicidal. He does not shop because of his anxiety.

11 Procedurally, plaintiff applied for Title XVI benefits on April 2, 2018, alleging an onset date of September 1, 2008. He claims disability, at page 203, based upon his traumatic brain injury, GERD, fibromyalgia, chronic leg pain, Grave's disease, overactive bladder, PTSD, anxiety, persistent depression, and agoraphobia.

17 A hearing was conducted on December 16, 2019 by Administrative Law Judge Michael J. Kopicki to address plaintiff's application. On December 27, 2019, that Administrative Law Judge, or ALJ, issued an unfavorable decision which became the final determination of the Agency on September 24, 2020, when the Social Security Administration Appeals Council denied plaintiff's application for review. This action was commenced on November 27, 2020, and is timely.

1 In his decision ALJ Kopicki applied the familiar five-step test for determining disability.

3 At step one, he concluded that plaintiff had not engaged in substantial gainful activity since the date of his application, April 2, 2018, although he did have some minor unreported earnings during the relevant period.

7 At step two, he concluded that plaintiff does suffer from severe impairments which impose more than minimal limitations on his ability to perform basic work functions, including depressive disorder, generalized anxiety disorder, and PTSD.

12 At step three, ALJ Kopicki concluded that plaintiff's conditions do not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering listings 12.04, 12.06 and 12.15.

17 At step four, the Administrative Law Judge concluded plaintiff had not engaged in anything that would be considered past relevant work.

20 Proceeding to step five, he determined based upon the testimony of a vocational expert who was presented with a hypothetical that tracked the RFC finding that plaintiff was not disabled and was capable of performing available work in the national economy, including as a marker, router, and routing clerk.

1 As you know, the Court's function in this case is twofold; I must determine whether substantial evidence supports the resulting determination and whether correct legal principles were applied. I will acknowledge that it is an extremely deferential standard. Substantial evidence being defined as such relevant evidence as a reasonable person would find sufficient to support a conclusion.

8 As the Second Circuit Court of Appeals noted in Brault versus Social Security Administration Commissioner, 683 F.3d 443, from 2012, the standard to be applied is extremely stringent and deferential. Under that standard the Court noted in Brault once an Administrative Law Judge finds a fact, that fact can be rejected only if a reasonable factfinder would have to conclude otherwise.

15 The plaintiff in this case raises essentially a single contention that the medical evidence and opinion evidence in the record was improperly evaluated, focusing on opinions given by Dr. Jeanne Shapiro, and the treating physician Dr. Radonjic.

20 The case is subject, as counsel appropriately noted, to new regulations which took effect for applications filed after March of 2017. Under those regulations the ALJ no longer defers or gives any specific evidentiary weight, including controlling weight, to any medical opinion. 20 CFR Section 416.920c(a). Instead the ALJ must consider each medical opinion using relevant factors set out in the regulation and must specifically address the factors of supportability and consistency of those medical opinions, and must articulate how persuasive the medical opinion was found to be after considering those two factors.

6 The ALJ is also permitted, but not required, to consider other relevant factors, including notably the source's relationship with the claimant, including the length of the treatment relationship, frequency of examinations, purpose of the treating relationship, extent of the treating relationship, and whether it was merely an examining relationship.

13 And, of course, the law remains under such cases as Veino v. Barnhart, 312 F.3d 578, from the Second Circuit, 2002, that it is in the first instance for the Administrative Law Judge to weigh conflicting opinions. In this case the opinion of Dr. Jeanne Shapiro is at issue. Dr. Shapiro is an examining consultant who conducted an employability assessment for the Onondaga County Department of Social Services on January 9, 2018, and then later conducted a psychiatric examination of the plaintiff on May 25, 2018. In the employability assessment, which appears at pages 310 to 315 of the Administrative Transcript, Dr. Shapiro found that plaintiff, on page 312, had abnormal mood and abnormal affect.

1 Later on in the form, at page 314, the expert concluded that plaintiff is extremely limited, which is defined as equal to or more than 75 percent of the time, in the areas of regularly attending to a routine and maintaining a schedule, and ability to use public transportation. The form asks for conclusions regarding employability.

7 Interestingly, when speaking of that form Administrative Law Judge Kopicki characterized it as stating that Dr. Shapiro opined the claimant could work with simple instructions and had moderate limitation working with complex tasks, et cetera. And that's actually not what the form says. The conclusion on employability is on page 315, "Individual appears permanently disabled, condition is not expected to improve, and is unable to participate in any activities." When asked is this individual unable to work for more than six months due to his or her mental condition, the answer is yes.

18 The Administrative Law Judge addressed this opinion at pages 17 and 19 of his decision and found it to be generally unpersuasive. The reasons given on page 19 were inconsistency with the later opinion, which I'll address in a moment, even though they're four months apart, "The opinions are also inconsistent with the subsequent treatment record, which notes the claimant felt much better when taking his psychiatric medication," and interestingly says, "and which is devoid of significant behavioral disturbance around others," which is inaccurate because the plaintiff was engaged in some sort of altercation involving the use of knives in September of 2018. It also states that the opinions are vague without specific vocational limitations, which I might agree with regard to the first opinion but, as will be seen, I cannot agree with with regard to the later opinion.

9 By the way, I do reject any contention, and I'm not sure the contention is being pressed, that once a medical opinion is addressed and the factors of supportability and consistency are articulated, the Court must uphold the Administrative Law Judge's decision even if the supportability and consistency finding is flawed. The substantial evidence test still controls.

16 The next opinion from Dr. Shapiro is from May 25, 2018. It appears at 440 to 444 of the Administrative Transcript. It's based on an examination which was conducted of the plaintiff. And it was noted in the objective portion of the opinion that when it comes to mental status, plaintiff was somewhat withdrawn, his affect was constricted. During the examination the complainant reported feeling anxious and depressed, the claimant was tense and fearful and was sad and withdrawn. The medical source statement constituting Dr. Shapiro's opinion finds that the plaintiff appears to have moderate to marked limitations interacting adequately with supervisors, coworkers and the public, and also in regulating emotions, controlling behavior, and maintaining well-being. As I indicated, Dr. Shapiro's opinions were found generally unpersuasive and I articulated the reasons.

6 The opinions of Dr. Radonjic, a treating source, are even more restricted in terms of what she believes the plaintiff is capable of doing notwithstanding his mental impairments. Dr. Radonjic filled out an employability assessment form on April 9, 2019. It appears at 1751 and 1752 of the record. It's actually signed by someone else whose signature is illegible on March 18, 2019, but Dr. Radonjic also appears to have ascribed to the opinion.

14 The opinion finds that plaintiff is severely limited in many areas: Ability to perform low stress, simple and complex tasks independently; ability to interact with others and maintain socially appropriate behavior without exhibiting behavioral -- it's difficult to read -- extremes I think is the word; ability to maintain attention and concentration for routine tasks; and demonstrates ability to function in a work setting. It also finds that when it comes to employability, the box is checked, "no activity except treatment or rehabilitation, not permanently disabled," but the expected duration is more than 12 months.

25 Dr. Radonjic issued a more substantial opinion on November 26, 2019. It appears at pages 2252 through 2257 of the Administrative Transcript. It asks for certain verbal explanations and then it seeks opinions in several domain areas. In the domain of understanding, remembering, or applying information, Dr. Radonjic finds plaintiff extremely limited, meaning more than 20 percent of the time, in three of eleven specified subareas. In interacting with others, the treating doctor finds extreme limitations in four of eight subareas. In concentration, persistence, or maintaining pace, again extreme inability in four of eight, and three of the four remaining are deemed marked or serious limitations. In adapting or managing oneself, the plaintiff is limited, according to Dr. Radonjic, in five of ten specified areas.

15 The Administrative Law Judge considered Dr. Radonjic's opinions and found them unpersuasive for the following reasons: They're internally inconsistent as they note both no limitation and also extreme limitation working with simple tasks and instructions. Two, not supported by her own notation that the claimant has average intelligence, which I question how intelligence relates to the ability to interact with others. Three, they're inconsistent with observations of other treatment providers that the claimant was cooperative during evaluations, et cetera. Four, the record does not contain any evidence of psychiatric hospitalizations during the pendency of his claim. I note that there is evidence in the record of prior hospitalizations but they predate any onset of disability in this case. Five, he is able to perform his activities of daily living, help his mother, and care for his son. And six, they're not supported by the records of therapy through 2019, which demonstrate improvement with treatment. So those are the reasons cited.

9 There is also an opinion, as we've discussed, from Dr. M. Ferrin, dated July 12, 2018, a State Agency non-examining consultant. It appears at 81 through 95 of the Administrative Record.

13 Dr. Ferrin opines that plaintiff is capable of essentially performing simple work. He finds the claimant is able to understand and remember simple and detailed instructions and procedures, has some difficulties in the area of sustained concentration and persistence, but is able to sustain an adequate concentration to complete ordinary tasks. He notes that while the claimant may have some difficulty with socialization in daily life, he is capable of interacting in a socially appropriate manner. And while there is some difficulty with adaptation, he is able to cope with basic changes.

24 I do note that even under the new regulations all medical opinions are not equal. A medical source, who has had the opportunity to examine a claimant, may have a better understanding than someone who reviews a cold file; 20 CFR Section 416.920c(c)(3)(v).

4 When it comes to Dr. Shapiro, the ALJ found differences in the two opinions but they're very different formats. For example, the first on the employability assessment did not ask anything about interacting with others, maintaining of self, regulating emotions. The evidence is equivocal; yes, there are some treatment notes that indicate improvement but some clearly do not.

11 The Administrative Law Judge found that there were no vocational, specific vocational limitations and the opinion was vague. I don't agree. The subsequent treatment notes reveal some worsening, including, as I said, the knife fight in September 2018. When it comes to activities of daily living, I do not believe that they support a finding that plaintiff is capable of performing work on a five-day, eight-hour-per-day consistent basis.

19 Having a panic disorder, anxiety, depression, PTSD is not necessarily inconsistent with the ability to do simple cooking, cleaning, showering. The evidence is very clear plaintiff does not like to go out, he does not use public transportation, he does not shop. In a physical ability case activities of daily living might shed a great deal more light on what objectively a plaintiff is able to do, but in a mental case such as this, I don't find that a logical connection has been demonstrated between plaintiff's activities of daily living and his ability to work on a sustained basis in competitive employment.

5 I reject the suggestion, by the way, of the plaintiff that there was a duty to recontact. I don't think that there was in this case. There was certainly permission under the regulations for the Administrative Law Judge to recontact, but it is not required; Marjorie H., on behalf of Nelson L. versus Commissioner, 2019 WL 4142592, Northern District of New York, August 30, 2019.

12 When it comes to Dr. Radonjic, as I said before, average intelligence does not to me speak to the ability to interact with others or to maintain oneself and regulate emotions. The activities of daily living as supporting plaintiff's ability to perform competitive work fails for the reason that I just articulated; the treatment records are equivocal, and to some degree the Administrative Law Judge did cherrypick and focus on a very few that showed improvement.

21 I note that the fact that plaintiff may have been cooperative with his healthcare providers during exams, I'm not sure that that necessarily translates into the ability to interact with supervisors, coworkers, and the public. I agree with District Judge James Robart, in Tina R. versus Commissioner of Social Security, 2019 WL 1417301, from the Western District of Washington, that the fact that a claimant manages to be cooperative with her healthcare providers does not contradict opinions that the claimant is limited in the ability to interact with others, including co-workers, supervisors and the general public. Healthcare providers are professionals trained to deal with mentally and physically ill or disabled patients, and a medical treatment relationship is not like the relationship a worker has with coworkers, supervisors or the general public. Interactions with treatment providers are likely to be less demanding or more supportive than typical work settings, and thus, do not demonstrate an ability to work with coworkers, supervisors or the general public in a work setting.

15 So while the ALJ attempted to explain reasoning for finding consistency and supportability of the opinions of Dr. Shapiro and Dr. Radonjic as lacking, I find that the explanation is flawed. There are a number of misstatements made by the Administrative Law Judge. And I find that the error is harmful because the opinions do not support the residual functional capacity and could show that even if plaintiff meets or medically equals any or some of the listed Section 12.00B criteria relative to Section 12.00 of the listings, the competing opinions in this case were not properly weighed.

1 I agree with the plaintiff's attorney during oral argument who conceded that this probably does not warrant a directed finding. I don't find that there is persuasive proof of disability in the record and that the further development of the record would not serve any useful purpose.

6 I think this needs a second look at the opinions of Dr. Shapiro and the opinions of Dr. Radonjic, as well as Dr. Ferrin, and if necessary but not -- if deemed appropriate, although I don't find that it is absolutely necessary, to either recontact one or both of those sources or order another consultative mental examination, but I will leave that to the wisdom of the Agency.

13 So, I will grant judgment on the pleadings to the plaintiff, vacate the Commissioner's determination and remand the matter for further proceedings consistent with this opinion. Thank you both. I hope you have a good afternoon.

18 * * * Decision - 7/6/2022 17 2 CERTIFICATION 4 I, EILEEN MCDONOUGH, RPR, CRR, 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 transcript of the stenographically reported proceedings held 10 in the above-entitled matter and that the transcript page 11 format is in conformance with the regulations of the 12 Judicial Conference of the United States.

16 Leen WeDonough 17 EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter