UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________

VALERIE J.,

Plaintiff,

v. 5:23-CV-0413 (ML) COMMISSIONER OF SOCIAL SECURITY,

Defendant. ________________________________________

APPEARANCES: OF COUNSEL:

LEGAL AID SOCIETY OF MID-NY RAYMOND O. RECCHIA, ESQ. Counsel for the Plaintiff 221 S. Warren Street - Suite 310 Syracuse, New York 13202

SOCIAL SECURITY ADMINISTRATION FERGUS J. KAISER, ESQ. Counsel for the Defendant Special Assistant U.S. Attorney 6401 Security Boulevard Baltimore, Maryland 21235

MIROSLAV LOVRIC, United States 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, pursuant to

(g), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on August 27, 2024, during a telephone conference

1 This matter, which is before me on consent of the parties pursuant to

(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. 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 was not supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by 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 ORDERED as follows: 1) Plaintiff's motion for judgment on the pleadings (Dkt. No. 9) is GRANTED. 2) Defendant’s motion for judgment on the pleadings (Dkt. No. 11) is DENIED. 3) The Commissioner’s decision denying Plaintiff Social Security benefits is REVERSED. 4) This matter is REMANDED to the Commissioner, without a directed finding of disability, for further administrative proceedings consistent with this opinion and the oral bench decision, pursuant to sentence four of

(g). 5) The Clerk of Court is respectfully directed to enter judgment, based upon this determination, REMANDING this matter to the Commissioner for further administrative proceedings consistent with this opinion and the oral bench decision, pursuant to sentence four of

(g) and closing this case. Dated: September 5, 2024 Binghamton, New York

Miroslav Lovric United States Magistrate Judge Northern District of New York

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x VALERIE BARBARA JUKNEVICIUS,

Plaintiff,

vs. Civil Action No. 5:23cv413

MARTIN J. O'MALLEY, COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x

Transcript of a Decision from a Teleconference Hearing held on August 27, 2024, the HONORABLE MIROSLAV LOVRIC, United States Magistrate Judge, Presiding.

A P P E A R A N C E S

For Plaintiff: LEGAL AID SOCIETY OF MID-NY 221 S. Warren Street, Suite 310 Syracuse, New York 13202 BY: RAYMOND O. RECCHIA, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION OFFICE OF PROGRAM LITIGATION, OFFICE 2 6401 Security Boulevard Baltimore, Maryland 21235 BY: FERGUS J. KAISER, ESQ.

Lisa M. Mazzei, RPR Official United States Court Reporter 10 Broad Street Utica, New York 13501 (315) 266-1176 1 (The following is an excerpt of a 2 teleconference hearing held on 8/27/2024.) 3 THE COURT: All right. Well, the Court is going to 4 begin its decision, analysis and reasoning as follows: 5 So, first, the Court begins by indicating that 6 Plaintiff has commenced this proceeding pursuant to Title 42

(g) to challenge the adverse determination 8 by the Commissioner of Social Security finding that she was 9 not disabled at the relevant times and therefore ineligible 10 for the benefits that she sought. 11 By way of background, the Court notes as follows: 12 Plaintiff was born in 1977. She is currently approximately 13 47 years of age. She was approximately 43 years of age on 14 the date of her application for benefits. 15 Plaintiff stands approximately 5 feet 3 inches in 16 height and weighs approximately 230 pounds. Plaintiff is a 17 high school graduate who attended regular education classes 18 and attended college for two years but did not obtain a 19 degree. Her employment history includes work as a cashier, 20 house cleaner, and a bookkeeper. 21 At the time of her administrative hearing on 22 December 7, 2021, Plaintiff lived alone but saw her 23 six-year-old son on a near-daily basis. She also has an 24 adult daughter who lives out of state. 25 Procedurally, the Court notes as follows for this

LISA M. MAZZEI, RPR 1 case: 2 Plaintiff applied for Title II and Title XVI 3 benefits on October 8th of 2020, alleging an onset date of 4 April 28, 2017. In support of her applications for benefits, 5 Plaintiff claims disability based on a number of physical and 6 mental health impairments including back pain, stage three 7 kidney disease, schizophrenia, depression, and bipolar 8 disorder. 9 Administrative Law Judge Jennifer Gale Smith 10 conducted a hearing on December 7, 2021, to address 11 Plaintiff's applications for benefits. ALJ Smith issued an 12 unfavorable decision on December 20, 2021. That decision 13 became the final determination of the agency on December 20, 14 2022, when the Appeals Council denied Plaintiff's request for 15 review. 16 On March 7, 2023, the Commissioner granted an 17 administrative request filed by Plaintiff's counsel extending 18 the deadline for commencing a civil action to April 21 of 19 2023. This action was commenced on April 3, 2023, and it is 20 therefore timely. 21 In her December 20, 2021 decision at issue in this 22 case, the ALJ first determined that Plaintiff met the insured 23 status requirements of the Social Security Act through 24 December 31, 2020, and then commenced the familiar five step 25 test for determining disability.

LISA M. MAZZEI, RPR 1 At step one, the ALJ concluded that Plaintiff had 2 not engaged in substantial gainful activity since the alleged 3 onset date of April 28, 2017. 4 At step two, the ALJ concluded that Plaintiff had 5 the following severe impairments: anxiety disorder, 6 depressive disorder, bipolar disorder, substance abuse 7 disorder and sustained remission, cannabis use disorder, 8 posttraumatic stress disorder, obesity, stage III kidney 9 disease, hepatitis C, degenerative disc disease, mild 10 peripheral neuropathy, cervicalgia, migraine headaches, 11 asthma, diabetes with mild neuropathy, chronic right heart 12 failure and anemia. 13 At step three, the ALJ concluded that plaintiff did 14 not have an impairment or combination of impairments that met 15 or medically equal the severity of one of any listed 16 impairments. In making this determination, the ALJ expressly 17 considered the following listings: Listing 1.15, which deals 18 with disorders of the skeletal spine. Listing 1.16 dealing 19 with lumbar spinal stenosis. Listing 3.03 dealing with 20 asthma. Listing 4.012 dealing with chronic heart failure. 21 Listing 6.05 dealing with chronic kidney disease. Listing 22 7.18 dealing with repeated complications of hematological 23 disorders. Listing 11.17 dealing with neurodegenerative 24 disorders. Listing 12.02 dealing with neurocognitive 25 disorders. Listing 12.04 dealing with depressive bipolar and

LISA M. MAZZEI, RPR 1 related disorders. Listing 12.06 dealing with anxiety and 2 obsessive compulsive disorders. And lastly, listing 12.15 3 dealing with trauma and stressor-related disorders. 4 Next, the ALJ determined that Plaintiff has the 5 residual functional capacity, also known as RFC, to perform 6 less than the full range of light work. Specifically, the 7 ALJ found Plaintiff should not work at unprotected heights; 8 balance, climb ladders, ropes, or scaffolds; or work in close 9 proximity to dangerous machinery or moving mechanical parts 10 of equipment. The ALJ further found Plaintiff can frequently 11 reach and can occasionally kneel, crouch, crawl, climb ramps 12 and stairs and stoop. The ALJ also found that the Plaintiff 13 should not have concentrated exposure to respiratory 14 irritants, extreme heat and cold temperatures or humidity. 15 With regard to mental health impairments, the ALJ found 16 Plaintiff should work at simple, routine, and repetitive 17 tasks and should work in a low stress job defined as 18 occasional decision making, occasional judgment required, and 19 occasional changes in the work setting. The ALJ further 20 opined that Plaintiff should work at goal-oriented work 21 rather than production pace rate work. And that Plaintiff 22 should be limited to occasional contact with coworkers, 23 supervisors, and the public. 24 At step four, the ALJ relied on the vocational 25 expert testimony to determine that Plaintiff is unable to

LISA M. MAZZEI, RPR 1 perform any past relevant work. Again relying on the 2 vocational expert testimony, the ALJ found that considering 3 Plaintiff's age, education, work experience, and RFC, that 4 there were jobs existing in significant numbers in the 5 national economy that Plaintiff can perform. Accordingly, 6 the ALJ found that Plaintiff was not disabled from her 7 alleged onset date of April 28, 2017 through the date of the 8 ALJ's decision. 9 Turning now to Plaintiff's arguments, I begin first 10 by indicating, as the parties know, this Court's functional 11 role in this case is limited and extremely deferential. I 12 must determine whether correct legal principles were applied 13 and whether the determination is supported by substantial 14 evidence which is defined as such relevant evidence as a 15 reasonable mind would find sufficient to support a 16 conclusion. As the Second Circuit noted in Brault v. Social 17 Security Administration Commissioner, that's at

, 18 a 2012 case, this standard is demanding more so than the 19 clearly erroneous standard. The Court noted in Brault that 20 once there is a finding of fact, that fact can be rejected 21 only if a reasonable factfinder would have to conclude 22 otherwise. 23 In this case, Plaintiff raises in her filings four 24 primary contentions in the proceedings: 25 First, Plaintiff argues that the ALJ erred in

LISA M. MAZZEI, RPR 1 evaluating the medical opinion evidence related to 2 Plaintiff's mental health impairments, particularly 3 Plaintiff's ability to maintain a regular schedule. 4 Second, Plaintiff argues that the ALJ erred in 5 evaluating the medical opinion evidence related to 6 Plaintiff's physical impairments, particularly with regard to 7 Plaintiff's ability to perform frequent reaching. 8 Third, Plaintiff argues that the ALJ failed to 9 properly evaluate Plaintiff's ability to handle stress in the 10 workplace. 11 And fourth, Plaintiff argues that the ALJ failed to 12 properly evaluate the vocational expert testimony. 13 The Court begins its decision and analysis as 14 follows: 15 The Court finds that remand for further 16 administrative findings in this case is required to properly 17 evaluate the medical opinion and other evidence related to 18 Plaintiff's ability to maintain and keep a regular schedule. 19 The Court begins by noting that Plaintiff is 20 currently enrolled in an Opioid Treatment Program. At her 21 December 2021 hearing, Plaintiff testified that she had 22 maintained her sobriety for the past five years. As part of 23 her treatment program, Plaintiff attends a daily methadone 24 clinic and participates in monthly counseling sessions. 25 Plaintiff testified that she woke up at 2 a.m. each weekday

LISA M. MAZZEI, RPR 1 in order to be ready for a 4:30 a.m. pickup by a Medicaid 2 shuttle with a 90-minute commute to the clinic. Depending on 3 the daily appointment schedule, the shuttle brought Plaintiff 4 back home between 7:30 a.m. and 11:30 a.m. Plaintiff 5 testified that she was exhausted after her appointments but 6 that compliance with methadone treatment was necessary not 7 only for her sobriety, but as a condition of her current 8 housing and food stamp benefits. 9 Plaintiff's treating licensed therapist, 10 Ashley Kessler, prepared a February 12, 2021 Psychiatric 11 Functional Assessment that was cosigned by psychiatrist 12 Dr. Tolani Adjabe. As part of that assessment, Ms. Kessler 13 opined that Plaintiff would be absent from work more than 14 four days per month and late to work more than four days per 15 month as a result of her mental health symptoms or treatment. 16 In a November 9, 2021 letter clarifying her opinion, 17 Ms. Kessler explained that Plaintiff's mental health symptoms 18 included mood irregularities, panic attacks, depressive 19 episodes, suicidal ideations, and "fight or flight" PTSD 20 triggers. Ms. Kessler, who had been treating Plaintiff since 21 2019, further opined that Plaintiff tends to isolate herself 22 and needs to reach out to a trusted counselor when her mental 23 health symptoms arise, hindering her ability to attend work 24 regularly or be punctual to work. In separate 25 correspondence, Ms. Kessler opined that Plaintiff's

LISA M. MAZZEI, RPR 1 psychiatric symptoms were distinct from her substance abuse 2 history. 3 Ms. Kessler's opinion is the only comprehensive 4 treating source opinion in the record, and the only opinion 5 to express concerns about Plaintiff's ability to maintain 6 regular attendance and punctuality at work. Two consultative 7 psychiatric examiners and two non-examining state agency 8 psychiatric consultants identified no limitations in this 9 area. 10 The ALJ rejected Ms. Kessler's opinion regarding 11 absenteeism and punctuality, stating the claimant's regular 12 attendance at her methadone clinic for two to three years, is 13 inconsistent with Ms. Kessler's and Dr. Adjabe's estimates as 14 to absences. It appears that these estimates are speculative 15 at best. This is what the ALJ concluded. 16 The Second Circuit recently held that "relying on 17 attendance at medical appointments is unhelpful in 18 determining whether an individual with significant 19 psychiatric issues can consistently show up and successfully 20 function in a work environment." See case of Rucker v. 21 Kijakazi,

, at page 93, and that's a Second 22 Circuit 2022 case. Recent district court decisions have 23 followed the Second Circuit's instruction and remanded where 24 the ALJ relied solely on an individual's ability to maintain 25 regular attendance at methadone treatment to determine that

LISA M. MAZZEI, RPR 1 he or she could meet the ordinary demands of regular work 2 attendance and punctuality. See case Bellini v. O'Malley. 3 That's 22-CV-9639. That's found at

at page 4 8. That's a Southern District New York March 28, 2024 case. 5 See also case of Brian D. v. Commissioner of Social Security, 6 21-CV-1368. That is a Magistrate Judge Hummel case. That 7 can be found at

at pages 9 through 10, and 8 that is a Northern District New York case. Decision issued 9 February 3rd of 2023. 10 Because Plaintiff's dedication in meeting the 11 onerous travel and time requirements necessary to maintain 12 her sobriety is the sole reason that the ALJ identified for 13 rejecting Ms. Kessler's opinion regarding attendance and 14 punctuality, remand for further administrative proceedings is 15 required. 16 The Court notes that the vocational expert 17 testified at the December 2021 hearing, based on her 18 experience, that "no more than one day of missed work per 19 month is acceptable. And I consider arriving late or leaving 20 early the same as an absence." Therefore, the ALJ's error in 21 evaluating Plaintiff's ability to maintain regular attendance 22 and punctuality cannot be considered harmless and remand is 23 required. 24 This Court finds that Plaintiff's remaining 25 arguments do not present independent grounds for remand, so I

LISA M. MAZZEI, RPR 1 will address them in a summary fashion. That being said, 2 reconsideration of Plaintiff's ability to maintain regular 3 attendance and punctuality along with any new evidence 4 introduced on remand will necessarily impact many of the 5 discrete challenges raised in Plaintiff's brief. 6 The ALJ expressly rejected the portion of 7 consultative examiner Dr. Elke Lorensen's opinion that 8 Plaintiff had moderate limitations in reaching, citing a lack 9 of support in the record. Plaintiff contends this was error, 10 but has not identified objective evidence to support this 11 claim. At her December 2021 hearing, Plaintiff testified 12 that her primary physical functional limitations involve 13 walking and lifting. The ALJ's decision contains a lengthy 14 summary of the longitudinal record including treatment notes 15 and imaging reports. Although Plaintiff's brief identifies a 16 number of her physical impairments that potentially impact 17 her ability to reach, it does not cite any treatment notes or 18 medical reports that are more restrictive than the "frequent" 19 reaching in the ALJ's RFC determination. 20 The ALJ also found the opinions of two 21 non-examining state agency consultants regarding physical 22 functional limitations be persuasive, and the opinions of two 23 non-examining state agency consultants regarding psychiatric 24 functioning limitations to be partially persuasive. 25 Plaintiff contends that the ALJ's analysis was

LISA M. MAZZEI, RPR 1 erroneous because the record was not complete at the time 2 that each of these opinions were issued. However, Plaintiff 3 has not identified any worsening of her symptoms or 4 functional limitations that would render any of these 5 opinions "stale" and thus unreliable. Indeed, the ALJ's 6 decision cited record and testimonial evidence that 7 Plaintiff's physical and psychiatric symptoms had generally 8 improved as she progressed in treatment. 9 The record contains two psychiatric consultative 10 examination reports. Dr. Dennis Noia examined Plaintiff in 11 August 2018. He opined that Plaintiff had no more than mild 12 limitations in most functional areas, but had marked 13 limitations in regulating emotions, controlling behavior, and 14 managing well-being. Dr. Dante Alexander examined Plaintiff 15 in February of 2021. He opined that Plaintiff had no more 16 than mild limitations in all functional areas, including 17 regulating emotions, controlling behavior, and managing 18 well-being. Although the ALJ did not rely entirely on either 19 opinion, the ALJ found Dr. Alexander's opinion more 20 persuasive. 21 Plaintiff contends that the ALJ failed to properly 22 evaluate these opinions. However, the ALJ expressly 23 considered their supportability and consistency against the 24 longitudinal medical record and Plaintiff's activities of 25 daily living. The Court notes that Dr. Noia's opinion was

LISA M. MAZZEI, RPR 1 prepared relatively close in time to Plaintiff's April 2017 2 suicide attempt and subsequent psychiatric hospitalizations 3 and that Dr. Alexander's less restrictive opinion was 4 prepared after Plaintiff had progressed in both mental health 5 and substance abuse treatment. To the extent that Plaintiff 6 argues that the ALJ should have interpreted the evidence 7 differently, such challenges must be rejected, because they 8 are premised entirely upon a disagreement over how the ALJ 9 resolved arguably conflicting evidence. It is not sufficient 10 that reasonable parties could interpret the evidence 11 differently, and it is not the function of this reviewing 12 Court to reweigh that evidence. 13 The ALJ's RFC determination limited Plaintiff to 14 low stress jobs, defined as occasional decision-making, 15 occasional judgment required and occasional changes in the 16 work setting. ALJ further limited Plaintiff to goal-oriented 17 work rather than productive pace rate work, and only 18 occasional contact with coworkers, supervisors and the 19 public. 20 Plaintiff contends that the ALJ failed to properly 21 evaluate Plaintiff's ability to handle stress. In her 22 decision, the ALJ considered evidence related to Plaintiff's 23 ability to handle stress including medical observations, 24 Plaintiff's testimony, and her documented activities of daily 25 living. Thus, the ALJ provided a "thorough, individualized

LISA M. MAZZEI, RPR 1 assessment" of Plaintiff's ability to handle stress, and 2 incorporated reasonable limitations into the RFC 3 determination. 4 At the December 2021 hearing, the vocational expert 5 identified three representative occupations that an 6 individual with Plaintiff's RFC could perform. That being 7 routing clerk, marker, and photocopy machine operator. 8 Plaintiff contends that the ALJ failed to adequately 9 investigate a conflict between the constant reaching required 10 by the marker position and frequent reaching in the RFC. 11 However, even with that unresolved conflict, the vocational 12 expert identified two other positions existing in significant 13 numbers in the national economy. Courts have regularly held 14 that where a vocational expert identifies at least one job 15 existing in significant numbers, the Commissioner's 16 obligation at step five is satisfied. Therefore, any error 17 in including the marker position at step five would be 18 harmless. 19 Finally, Plaintiff contends that the RFC 20 determination is inconsistent with the jobs identified by the 21 vocational expert, which all require a Reasoning Level of 22 Two. However, a growing number of district courts have held 23 that jobs with reasoning levels of two are compatible with 24 limitations to simple, routine, low stress work. See case of 25 Timothy M. v. Kijakazi. That is found at 20-CV-310. That is

LISA M. MAZZEI, RPR 1 a Chief Judge Sannes case,

at page 16. And 2 that was issued by Chief Judge Sannes of the Northern 3 District of New York on September 22 of 2021. And therein 4 Chief Judge collected a variety of cases on this point. 5 Accordingly, it is the decision of this Court that 6 Plaintiff's motion for judgment on the pleadings is granted. 7 Defendant's motion for judgment on the pleadings is denied. 8 And this matter is reversed and remanded to the Commissioner 9 pursuant to sentence four of Title

(g) 10 for further proceedings consistent with this decision and 11 order. 12 That constitutes the decision and order of the 13 Court. As I indicated, I will have the court reporter 14 transcribe solely my decision as I have set it forth here on 15 the record. I will then append that decision to a summary 16 order and then I will file that in the docket so the parties 17 will have my decision also in writing. 18 That concludes our proceeding for today, and I hope 19 everybody has a good rest of the day. And court stands 20 adjourned. Thank you all. 21 (Court adjourned, 1:38 p.m.) 22 23 24 25

LISA M. MAZZEI, RPR 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 I, LISA M. MAZZEI, RPR, Official U.S. Court 4 Reporter, in and for the United States District 5 Court for the Northern District of New York, DO 6 HEREBY CERTIFY that pursuant to Section 753, Title 7 28, United States Code, that the foregoing is a true 8 and correct transcript of the stenographically 9 reported proceedings held in the above-entitled 10 matter and that the transcript page format is in 11 conformance with the regulations of the Judicial 12 Conference of the United States. 13 14 Dated this 4th day of September, 2024. 15 16 17 /S/ LISA M. MAZZEI

18 LISA M. MAZZEI, RPR Official U.S. Court Reporter 19 20 21 22 23 24 25 LISA M. MAZZEI, RPR