Case Information
*1 IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK KIMBERLY C., Plaintiff, Civil Action No. 5:19-CV-0432 (DEP) ANDREW M. SAUL, Commissioner of Social Security, [1]
Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF LACHMAN, GORTON LAW OFFICE PETER A. GORTON, ESQ. P.O. Box 89 1500 East Main Street Endicott, NY 13761-0089 FOR DEFENDANT HON. GRANT C. JAQUITH MOLLY CARTER, ESQ. United States Attorney Special Assistant U.S. Attorney P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198 *2 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, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings. 2 Oral argument was heard in connection with those motions on April 22, 2020, 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
*3 ORDERED, as follows: 1) Defendant = s motion for judgment on the pleadings is
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. Dated: April 29, 2020
Syracuse, NY 3 *4 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x
KIMBERLY C.,
Plaintiff, -v- 5:19-CV-432 ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY,
Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES April 22, 2020 100 South Clinton Street, Syracuse, New York For the Plaintiff: (Appearance by telephone)
LACHMAN & GORTON LAW OFFICE P.O. Box 89 1500 East Main Street Endicott, New York 13761
BY:
PETER A. GORTON, ESQ.
For the Defendant: (Appearance by telephone)
SOCIAL SECURITY ADMINISTRATION
625 JFK Building 15 New Sudbury Street Boston, Massachusetts 02203
BY:
MOLLY CARTER, ESQ. Hannah F. Cavanaugh, RPR, CRR, CSR, NYACR, NYRCR
Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8545 *5 (The Court and counsel present by telephone. Time noted: 11:26 a.m.)
THE COURT: All right. Plaintiff has commenced this proceeding pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3) to challenge a determination by the Commissioner of Social Security that plaintiff was not disabled at the relevant times and therefore ineligible for the benefits for which she applied.
The background is as follows: The plaintiff was born in July of 1960. She is currently 59 years old. She was 52 years of age at the time of the alleged onset of her disability on July 10, 2012. She stands 5'3" in height and weighs at various times between 180 and 195 pounds depending on where in the record you look, an example is Administrative Transcript pages 45 and 354. It's unclear at one time that plaintiff lived in Endicott and another time in East Freetown. She lives alone. She was living with her son, that's at page 345. He apparently moved out of state at some point. She also has two small dogs.
Plaintiff has a 12th grade education. She attended regular classes while in school. She's right-handed. Plaintiff does not drive or take public transportation, according to page 140 of the Administrative Transcript. She apparently gave up her driver's license voluntarily. Plaintiff last worked in July of 2012. Her past relevant work includes as an aide and a *6 Licensed Practical Nurse, or LPN, in nursing home and assisted living settings.
Plaintiff suffers from several physical impairments, including irritable bowel syndrome or IBS, GERD, fibromyalgia, cervical degenerative joint and disc disease, herpes, kidney stones, hepatitis C, obesity, hypothyroidism, and at one point in the past Clostridium difficile or commonly referred to as C. diff. The C. diff appears to have occurred in 2012. It was treated with vancomycin and resolved in three months.
In terms of her cervical issues, plaintiff underwent magnetic resonance imaging testing, or MRI testing, in May of 2015. It appears the results -- at page 370 and 371 of the Administrative Transcript, the findings were summarized in that report. It was referred to -- it showed mutli-level degenerative spondylosis and disc protrusions. It was characterized by plaintiff's rheumatologist, Dr. Bonilla-Trejos, at page 410 as revealing a disc herniation at C5-C6 -- I'm sorry, C6-C7. The actual MRI result is marked degenerative spondylosis and central/right paracentral disc protrusion at that level.
Plaintiff mentally suffers from depression, anxiety, anger, and bipolar disorder. In terms of physical, plaintiff has treated with Associated Medical Professionals of Central New York, Dr. Amin El-Hassan for her gastroenterologist issues, and Dr. Biswarup Syam. For rheumatology, she treats at Upstate with *7 Dr. Eduardo Bonilla-Trejos. She also sees at Family Care Network Nurse Practitioner Eleanor Klein. That is where Dr. Douglas Rahner also practices.
In terms of addressing her mental needs, she treats at Cortland County Mental Health Clinic where she sees Licensed Clinical Social Worker Helen Haldane weekly. Plaintiff was consultatively examined by Dr. Elke Lorensen on March 13, 2016, and by Dr. Dennis Noia on March 17, 2016.
In terms of medication, she has been prescribed several over time. Her IBS has been treated with Amitriptyline and FiberCon. She also has been prescribed Bentyl, Escitalopram, Flonase, Fluticasone -- which I think is the generic of Flonase -- Mobic, Omeprazole, Pravastatin, Vancomycin, Zoloft, Celexa, Lexapro, Wellbutrin, Metformin, Prilosec, and Bupropion.
In terms of activities of daily living, plaintiff does cook, does some cleaning, can do laundry, shops. She can dress and groom herself. She bathes. She watches television. Plaintiff apparently smokes daily between a half and one pack of cigarettes per day. She tried at one point to quit using Chantix, but there's an notation on October 25, 2017, at page 564 of the Administrative Transcript that she was once again smoking.
Procedurally, plaintiff applied for Title II disability insurance benefits on December 31, 2015, and *8 protectively filed for Title XVI Supplemental Security Income benefits on January 6, 2016. In both she alleged a July 10, 2012, onset date. At page 139 of the Administrative Transcript, she claims disability based on fibromyalgia, osteoarthritis, chronic back pain, and bipolar disorder and IBS.
A hearing was conducted on February 12, 2018, by Administrative Law Judge Melissa Hammock to address plaintiff's applications. On April 3, 2018, ALJ Hammock issued an unfavorable decision. That became a final determination of the agency on February 21, 2019, when her request for review was denied by that body. On April 10, 2019, plaintiff commenced this action, which is timely.
In her decision, ALJ Hammock applied the familiar five-step test for determining disability. She first noted that plaintiff's last date of insured status was December 31, 2017. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since the alleged onset date of July 10, 2012.
At step two, she concluded that plaintiff suffers from several severe impairments that impose more than minimal limitation on her ability to perform work functions, including obesity, polyarthritis, fibromyalgia, degenerative joint disease, cervical degenerative disc disease, cervical stenosis, and cervical radiculopathy.
At step three, she concluded that plaintiff's *9 conditions did not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering listings 1.04, 1.02, SSR 02-1p when it comes to obesity, and SSR 12-2p used to consider plaintiff's fibromyalgia and the effects of it on her ability to perform work functions.
The ALJ next concluded that plaintiff retains the residual functional capacity, or RFC, to perform medium work with exceptions that she can occasionally climb ramps and stairs, never climb ladders, ropes, and scaffolds, she can frequently stoop, and occasionally kneel, crouch, and crawl. She should have no exposure to unprotected heights and can occasionally reach overhead and frequently reach in all other directions.
Applying that residual functional capacity at step four, the Administrative Law Judge concluded that plaintiff is capable of performing her past relevant work as an LPN and nurse's aide.
As an alternative basis for finding no disability, the Administrative Law Judge proceeded to step five and found that if plaintiff were capable of performing a full range of medium work, the Medical-Vocational Guidelines, or Grids, and specifically Grid Rules 203.22 and 203.15, would direct a finding of no disability. She went on, however, based on the testimony of the vocational expert to find that plaintiff was *10 capable, notwithstanding her limitations, of performing as an office helper, a ticket taker, and a mail clerk, and that there was a sufficient number of jobs in the national economy in those categories and therefore found that plaintiff was not disabled.
As you know, my task is limited. The standard that I apply is highly deferential. I must determine whether the correct legal principles were applied and the resulting determination was supported by substantial evidence, substantial evidence being defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. As the Second Circuit Court of Appeals noted in Brault v. Social Security Administration , 683 F.3d 443, from 2012, it is an extremely stringent standard, even more strict than the clearly erroneous standard. Under the prevailing test and standard, once an ALJ finds facts, according to Brault , it can be rejected only if a reasonable factfinder would have to conclude otherwise.
The plaintiff in her challenge raises relevant contentions. At step two, she challenges the failure to find IBS, incontinence, and urinary urgency as severe, and the failure to make specific findings in that regard. She also challenges the rejection of Dr. Douglas Rahner's opinion contending that he qualifies as a treating source. Plaintiff challenges the residual functional capacity finding and specifically the failure to account for plaintiff's diarrhea and *11 incontinence and need for access to a bathroom. She also challenges the finding that she is capable of performing medium work is not supported by any medical opinion. She challenges the failure to assess work pace and attendance, and contends that the Administrative Law Judge's determinations at step four and five are infected by those errors.
As a backdrop, I note when examining plaintiff's arguments, I have to bear in mind that it is her burden through step four to establish her conditions and, importantly, the limitations that those conditions present on her ability to perform work functions. Turning first to the step two argument, the governing regulations provide that an impairment or combination of impairments is not severe if it does not significantly limit a plaintiff's physical or mental ability to do basic work activities. That is from 20 C.F.R. Section 404.1521(a).
It is true that this is a modest test at step two. It is considered as, quote, de minimis and the step two analysis is intended only to screen out the truly weakest of cases, Dixon v. Shalala , 54 F.3d 1019, from the Second Circuit, 1995. It is also true, however, that the mere presence of a disease or impairment that has been diagnosed is not by itself sufficient to establish a condition as severe, Coleman v. Shalala , 895 F. Supp. 50, from the Southern District of New York, 1995. In this case, it is, as I indicated previously, plaintiff's burden to *12 establish at step two that a condition is severe. And as I just noted, the mere diagnosis alone of IBS, for example, does not necessarily mean that it qualifies as severe.
I also note that if the Administrative Law Judge proceeds and does find other conditions severe and proceeds through the five-step analysis, any error is harmless, provided that any limitations presented by nonsevere impairments are considered when formulating the residual functional capacity. In this case, in terms of the IBS, I find no failure to consider that as severe. Plaintiff did not carry her burden of establishing the limitations associated with that.
I note that the C. diff -- I won't call it a red herring, but the C. diff clearly was a serious impairment, but it only lasted three months in 2012 and was resolved in October of 2012. I don't see any further indication that there are additional C. diff flare ups. Plaintiff did not undergo any treatment for IBS in October 2012, when her C. diff was resolved, until January 2015 and she infrequently complained. A colonoscopy that was conducted in March of 2013 showed only quiescent colitis, that's at page 209 and 210 of the Administrative Transcript. As the Administrative Law Judge indicated, it appears that medication and diet have controlled the plaintiff's IBS. I also note that the plaintiff either denied symptoms altogether or failed to mention symptoms to Nurse Practitioner Klein on multiple occasions, including in *13 December 2015, April 2016, November 2016, May 2017, July 2017, August 2017, and November 2017.
Turning to the urinary issues, there appear to be, really, very few complaints, again, or denial or failure to mention on multiple occasions to Nurse Practitioner Klein, only brief periods of treatment and testing that resulted in normal results, a stable bladder, and no flow obstruction.
In terms of GERD, it appears from the medical records that that condition was well controlled through medication and there's little other treatment. There's no proof in the record of any limitations presented by GERD on plaintiff's ability to perform basic work functions. And once again, there's a significant number of denials of symptoms or failure to mention GERD symptoms. So in sum, I find that the rejection at step two of those three conditions as severe is supported.
Turning to the treating source argument, there's no question that the opinion of a treating source regarding the nature and severity of an impairment is entitled to considerable deference, of course provided that it is supported by medically acceptable clinical and laboratory diagnostic techniques and is not consistent with other substantial evidence. In one of the principal cases addressing this issue, the Second Circuit noted that in Burgess v. Astrue , 537 F.3d 117, Second Circuit, 2008.
Under the regulations that were in effect at the relevant times, specifically 20 C.F.R. Sections 404.1527 and *14 416.927, the medical opinions of a treating source are generally entitled to controlling weight unless contradicted by other substantial evidence. When treating source opinions are not given controlling weight, then the Administrative Law Judge must consider the so-called Burgess factors and indicate what weight it is given.
The term treating source is defined in 20 C.F.R. Section 404.1527(a)(2) as follows: Treating source means your own acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with the frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition.
In this case, I find that the ALJ's rejection of Dr. Rahner as a treating source is supported by substantial evidence. I carefully reviewed the medical records associated with plaintiff's treatment with Nurse Practitioner Klein at Family Health Network and could not find that Dr. Rahner is mentioned as having any sort of personal treating relationship with the plaintiff. I also note that, in any event, his opinions were also properly discounted as being inconsistent *15 with the record, and in particular, Dr. Lorensen's opinions.
Turning to the residual functional capacity argument, obviously we know that an RFC is defined as the most that a plaintiff can do consistent with her impairments at issue, 20 C.F.R. Sections 404.1545 and 416.945. An RFC has to be informed by consideration of all relevant and medical and other evidence, Tankisi v. Commissioner of Social Security , 521 F. App'x 29, from the Second Circuit, 2013. To properly ascertain a claimant's RFC, an ALJ must assess plaintiff's exertional capacities and also her, you know, capabilities and nonexertional limitations, as well.
In this case, the ALJ must review the record in its entirety to assess the RFC. In this case, the RFC is well supported by Dr. Lorensen's opinions, not only the medical source portion of Dr. Lorensen's report, but also the extremely benign findings of Dr. Lorensen and other practitioners, including Nurse Practitioner Klein and the conservative treatment that plaintiff was prescribed.
The issue really is the impact on plaintiff's ability to work. The IBS gave me pause. I know that plaintiff has cited some fairly compelling cases, Lowe v. Colvin , 2016 WL 624922, that was from the Western District of New York, 2016, a case in which Mr. Gorton also represented the plaintiff. And Judge Telesca, who unfortunately recently passed away, criticized the Administrative Law Judge for failing to make *16 specific findings regarding the frequency and length of anticipated bathroom breaks. The plaintiff also cites Spaulding v. Astrue , 702 F. Supp. 2d 983, from the Northern District of Illinois, with a similar holding that the ALJ erred by not articulating findings concerning the need for bathroom breaks.
However, in this case, I think it is distinguishable because plaintiff's IBS was not found by the Administrative Law Judge to be severe. The lack of any need in the RFC to limit plaintiff's -- to specify plaintiff's access to bathrooms is supported by substantial evidence. Plaintiff's IBS has waned and waxed, but appears to be relatively under control. There was no treatment of the IBS from 2013 until 2015. The evidence indicates that plaintiff's medications helped, including at page 303 of the Administrative Transcript, a notation from February 5, 2016.
As I indicated before, there are multiple indications of plaintiff's denying -- specifically denying IBS, including 381 and 391 of the Administrative Transcript. There are also denials of symptoms to Dr. Bonilla-Trejos in December 2015, April 2016, November 2017, no mention of symptoms in February 2016, and August 2016, no specific treatment. And it appears that almost all of the references to the severity of the IBS, including, for example, having to go ten times per day, that occurred in March of 2013, most all of those are in the distant past and the more recent medical records don't reflect *17 the ongoing issue with regard to IBS, so I think this is a very different case than Lowe and Spaulding .
Turning to the residual functional capacity and the exertional requirements, I agree with the Commissioner that a medical opinion is not always required to support an RFC. In this case, however, the medium exertional requirement is, I believe, supported by Dr. Lorensen's opinion. And in any event, any error in that regard would be harmless because, as the Commissioner pointed out at step five, a determination was made that plaintiff is capable of performing work in the national economy falling in the light category.
Again, I agreed that little weight was properly given to Dr. Rahner's opinion when it comes to absenteeism and off task, though I think the medical record as a whole and Dr. Lorensen's opinions with no mention of any limitations on schedule support the residual functional capacity.
So I do find no error in the residual functional capacity, no error at step four where plaintiff remains to carry the burden, there's no evidence that plaintiff is not able to work in healthcare, the C. diff resolved itself in 2012 and 2013, and, again, if there is error at step four, it is harmless because at step five, based on the vocational expert's testimony, there is work in the national economy that plaintiff is capable of performing.
So in conclusion, I find that the determination *18 resulted from the application of proper legal principles and is supported by substantial evidence, so I will grant judgment on the pleadings to the defendant and dismiss plaintiff's complaint.
Thank you both for excellent presentations. I enjoyed working with you. Stay safe. MR. GORTON: Thank you, your Honor. MR. CARTER: Thank you, your Honor. (Time noted: 11:55 a.m.)
*19 CERTIFICATE OF OFFICIAL REPORTER I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR, Official U.S. 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 in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.
Dated this 27th day of April, 2020. X________________________________________________ HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR Official U.S. Court Reporter
NOTES
[1] Plaintiff = s complaint named Nancy A. Berryhill, in her capacity as the Acting Commissioner of Social Security, as the defendant. On June 4, 2019, Andrew Saul took office as Social Security Commissioner. He 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 42 U.S.C. ' 405(g).
[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. 2