Case Information

MICHAEL B. M., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.

Civil Action No. 3:20-cv-0946 (DEP)

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

January 10, 2022

DAVID E. PEEBLES, U.S. MAGISTRATE JUDGE

APPEARANCES:

FOR PLAINTIFF

LEGAL AID SOCIETY OF MID-NY
221 South Warren Street, Suite 310
Syracuse, New York 13202

FOR DEFENDANT

SOCIAL SECURITY ADMIN.
625 JFK Building
15 New Sudbury St
Boston, MA 02203

OF COUNSEL:

ELIZABETH V. LOMBARDI, ESQ.

CHRISTOPHER L. POTTER, ESQ.

Plaintiff's complaint named Andrew M. Saul, in his official capacity as the Commissioner of Social Security, as the defendant. On July 12, 2021, Kilolo Kijakazi took office as the Acting Social Security Commissioner. She has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See 42 U.S.C. § 405(g).1

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.2 Oral argument was conducted in connection with those motions on January 5, 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:

Plaintiff's motion for judgment on the pleadings is GRANTED.
The Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is VACATED.
The matter is hereby REMANDED to the Commissioner, without a directed finding of disability, for further proceedings consistent with this determination.
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.

David E. Peebles

U.S. Magistrate Judge

Dated: January 10, 2022
Syracuse, NY

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

MICHAEL BEN M., Plaintiff, vs. 3:20-CV-946 KILOLO KIJAKAZI, COMMISSIONER OF SOCIAL SECURITY, Defendant.

Transcript of a Decision held during a Telephone Conference on January 5, 2022, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.

APPEARANCES
(By Telephone)

For Plaintiff: LEGAL AID SOCIETY OF MID-NEW YORK
Attorneys at Law
221 S. Warren Street, Suite 310
Syracuse, New York 13202
BY: ELIZABETH V. LOMBARDI, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
J.F.K. Federal Building
Room 625
Boston, Massachusetts 02203
BY: CHRIS LEWIS POTTER, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
(315) 234-8547

(The Court and all counsel present by telephone.)

THE COURT: Let me begin by thanking both of you for excellent presentations. I've enjoyed working with you.

Plaintiff commenced this proceeding pursuant to United States Code Sections 405(g) and 1383(c)(3) to challenge an adverse determination of the Commissioner of Social Security finding that he is not entitled to the benefits for which he applied.

The background is as follows: Plaintiff was born in January of 1982 and is currently just short of 40 years of age, he was 35 years old at the alleged onset of his disability on March 1, 2017. Plaintiff stands approximately 5 foot 6 inches in height and has weighed at various times between 205 and 222 pounds. Plaintiff lives in Binghamton with his -- the record is equivocal as to whether she is his wife or girlfriend, they have been together for some 15 years. They live in some sort of shared house arrangement. Plaintiff moved from Iowa in 2018 to be near his father. At various times he has been homeless or living in a shelter. Plaintiff has a 10th grade education and while in school was in special education classes in Iowa based on a learning disability. Plaintiff has no driver's license, although he at one point did possess one.

Plaintiff stopped working in May of 2008. His past work includes as a part-time dishwasher for a brief period of time, factory laborer, he worked part time in various fast-food settings including at Burger King and McDonald's.

Physically, plaintiff suffers from several impairments, including obesity, arthritis, bilateral shoulder pain based on a 2016 motor vehicle accident, he suffers from carpal tunnel syndrome, status post release on the right wrist, asthma, some bowel issues, right hip pain, right knee pain, lower back pain, migraines, seizures, and hypertension.

Mentally, plaintiff has been diagnosed with various conditions, including borderline personality disorder, paranoid schizophrenia, general anxiety disorder, bipolar disorder, intellectual disorder, and poly-substance abuse. It appears that he was sexually abused as a child and has had various difficulties over time in various relationships.

Plaintiff has received treatment, including from Broadlawn Medical Center in Iowa, from 2000 until November 2014 and then again resuming in October 2016 until he moved in 2018. His primary care physician in Binghamton is Dr. James Hollandt who he began seeing in July of 2018. He also receives mental health treatment from Tioga Mental Health Clinic where he began treatment in April of 2018. He sees a couple of licensed clinical social workers and licensed master social worker. His psychiatrist, who he sees one time per month, is Dr. Ejiro Agboro-Idahosa.

Plaintiff's activities of daily living include his ability to perform basic hygiene, groom, cook, clean, manage finances, he socializes with family and friends, he enjoys music, watching television, he uses medical transportation service as required. Plaintiff has a history of incarceration as well as poly-substance and tobacco abuse, marijuana, and methamphetamines. He claims to be sober for the past two years.

Procedurally, plaintiff applied for Title II and Title XVI benefits on March 29, 2018 alleging an onset date of March 1, 2017, and claiming disability in his function report based on paranoid schizophrenia, bipolar disorder, attention deficit disorder, multiple personality disorder, codependency, anxiety, and a learning disability. A hearing was conducted by Administrative Law Judge Melissa Hammock on September 6, 2019 to address plaintiff's application for benefits on October 9, 2019. Administrative Law Judge Hammock issued an unfavorable decision which became a final determination of the agency on June 22, 2020, when the Social Security Administration Appeals Council denied plaintiff's request for review. This action was commenced on August 18, 2020, and is timely.

In her decision, ALJ Hammock applied the familiar five-step sequential test for determining disability. She first noted that plaintiff's last date of insured status was March 30, 2012.

At step one she found that plaintiff had not engaged in substantial gainful activity since March 1, 2017.

At step two she concluded that plaintiff does suffer from severe impairments that impose more than minimal limitations on his ability to perform basic work functions, including paranoid schizophrenia, generalized anxiety disorder, bipolar disorder, borderline personality disorder, intellectual disorder, and poly-substance abuse.

At step three, the administrative law judge concluded that plaintiff's conditions do not meet or medically equal any of the listed presumptively disabling conditions, specifically considering Listings 12.03, 12.04, 12.05, 12.06, and 12.08, all of which deal with plaintiff's mental health conditions.

After reviewing the medical and other evidence, ALJ Hammock concluded that plaintiff retains some residual functional capacity, or RFC, to perform work at a full range of exertional levels but with nonexertional limitations including, he can perform simple routine tasks and make simple work-related decisions in an environment with no production rate pace and no more than occasional changes in the work routine. He can have occasional superficial interaction with supervisors and coworkers and he can have no interaction with the public.

At step four, ALJ Hammock noted that plaintiff does not have any significant past relevant work and then proceeded to step five where, based on the testimony of a vocational expert, plaintiff was found to be capable of performing available work in the national economy citing as representative positions industrial sweeper, laundry laborer, and cleaner II.

As you know, the court's function in this case is limited to determining whether correct legal principles were applied and the resulting determination is supported by substantial evidence, which is defined as such relevant evidence as a reasonable person would find sufficient to support a conclusion.

In this case, plaintiff makes three basic arguments. She contends first at step two that plaintiff's seizures and obesity should have been included in the finding of severe impairments. The second argument focuses on the weighing of medical opinions and specifically the weight accorded to opinions of Dr. Agboro-Idahosa and Dr. Ferrin. The third argument addresses an alleged conflict between the testimony of the vocational expert and the Dictionary of Occupational Titles, and the failure to resolve and explain the resolution of that conflict.

As you know, as an overarching consideration, it is plaintiff's burden through step four to prove that his conditions create and cause limitations that preclude him from performing available work. Additionally, the issue is not what the court would do when faced with the record that was developed before the agency, but rather, whether the resulting determination, again, was supported by substantial evidence and resulted from the application of proper legal principles.

First addressing the step two argument, the governing regulations provide that an impairment or combination of impairments is not severe if it does not specifically limit a claimant's physical and mental ability to do basic work activities. 20 C.F.R. Section 404.1521. The regulation goes on to describe what is meant by the phrase basic work activities, defining that term to include the abilities and aptitudes necessary to do most jobs. The second step requirement, as the plaintiff has argued, is clearly de minimus and intended only to screen out the truly weakest of cases. Dixon v. Shalala, 54 F.3d 1019 at 1030 (2d Cir. 1995). Significantly, and importantly, however, the mere presence of a disease or impairment or establishing that a person has been diagnosed or treated for a disease or impairment is not by itself sufficient to establish a condition as severe. Coleman v. Shalala, 895 F.Supp. 50 at 53 (S.D.N.Y. 1995).

The focus of the argument in this case is upon obesity and seizures. The administrative law judge explained the rejection of plaintiff's physical conditions, including obesity and seizures, as not being severe, pages 13 and 14 of the administrative transcript. It was noted, for example, with regard to obesity that there was no indication from plaintiff's respiratory exam, which was normal, that the obesity did not appear to affect that, nor did it affect his mobility or breathing in any notable way. I note, significantly, that with regard to obesity, plaintiff did not mention his obesity at either the hearing or in his function report as a reason why he's not capable of performing basic work activities. And there's no proof in the record that plaintiff has pointed to that shouldered the burden of establishing any such limitation.

With regard to seizures, plaintiff was not taking anti -- has not taken antiseizure medications regularly. There's no evidence of any observation of any seizures, no encephalogram or objective confirmation of seizures, and at 433, the plaintiff told the consultative examiner, Dr. Magurno, that his most recent seizure was in 2015. I think that, despite the modest test at step two, the rejection of those physical conditions as being severe is supported by substantial evidence and was proper.

Turning next to the medical opinions of record, the date on which this case, or the application in this case was filed means that the new regulations regarding the weighing of medical opinions applies. Under the new regulations, an ALJ does not have to give any specific evidentiary weight, including controlling weight, to any medical opinions, including those from claimant's medical sources. 20 C.F.R. Sections 404.1520c(a) and 416.920c(a). Instead, an ALJ must weigh those opinions using the relevant factors including, significantly, supportability and consistency. The ALJ must 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. The ALJ may also, but is not required to, explain the consideration of other relevant factors as appropriate in each case, including the source's relationship with the claimant, including the length of the treatment relationship, frequency of examinations, purpose of the treating relationship, the extent of the treating relationship, and whether it was merely an examining relationship, the specialization, if any, of the source and other factors that tend to support or contradict the medical opinion.

The focus of this argument is on, first, the treatment of Dr. Agboro-Idahosa's opinion from June 24, 2019. That opinion, of course, is extremely limiting. The administrative law judge cited and recounted the various -- I should say the opinion is, appears at 456 to 462 of the record and is repeated at 986 to 992 with the exception of the last page. The opinion of Dr. Agboro-Idahosa offers opinions in each of the, I'll call them the B domains, and lists various degrees, from none to extreme or inability to function, and that is defined as approximately more than 20 percent of the workday or workweek. In understanding, remembering, or applying information, the plaintiff is rated as extreme in six of the subcategories and marked or serious in two others. In interacting with others, he is rated as extreme in two and marked or serious in three. In concentrating, persistence, or maintaining pace, extreme in two and five in marked or serious. In adapting and managing self, four in extreme and five in marked or serious. Dr. Agboro-Idahosa also opines that plaintiff would likely be absent more than four days per month and late to work more than four days per month.

That opinion was discussed at page 22 to 23 of the administrative transcript by the administrative law judge who found it to be very limiting and inconsistent with work but found it overly restrictive and not persuasive. The reasons cited are fourfold and include that his noted mental status exam findings of record do not support it, but shows that the claimant retained unimpaired attention, concentration, memory, insight, and judgment despite the fluctuating symptoms; two, Dr. Agboro-Idahosa did not provide direct citations to his objective notes; three, he appeared to primarily rely on claimant's own subjective reports; and four, was not provided on a function-by-function format. The last of those the Commissioner concedes is not a valid reason for rejection of the opinion.

The opinions of Dr. Agboro Idahosa are consistent and supported by, at least in part, by the consultative examination of Dr. Slowik, that's reported at 426 to 430, who finds moderate limitations in several categories, a marked limitation in plaintiff's ability to understand, remember, and apply complex directions and instructions and regulate emotions, marked to moderately to marked limitations in the ability to interact adequately with supervisors, coworkers, and the public and sustained concentration. It is also consistent with the opinions of plaintiff's treating primary care provider, Dr. Hollandt.

Dr. Agboro-Idahosa is a psychiatrist, a professional in that field. He has treated plaintiff since September 2018, has great longitudinal knowledge of the plaintiff. And although it is true that the treating source rule was abrogated under the new regulations, there are cases that suggest and I think the relevant factors that I read equally suggest that the fact of a treating relationship is still an important consideration. As was noted in Shawn H. v. Commissioner of Social Security, Civil Action Number 2:19-CV-113, it was reported at 2020 U.S. Dist. LEXIS 123589, it was noted by my good friend and colleague Magistrate Judge John Conroy that under the new regulations, they still recognize the foundational nature of the observations of treating sources, and consistency with those observations is a factor in determining the value of any treating source's opinion.

It's a mental health case, and although the administrative law judge cites this as a reason, it is entirely appropriate, and particularly in mental health cases, for a professional psychiatrist to rely on a plaintiff's accounts of symptoms. And in a complex mental health case, which this clearly is, the perspective of a treating psychiatrist is important. And although this case was decided under the old regulations, I think it still has vitality, Prior v. Commissioner of Social Security, 2020 WL 1445963 (W.D.N.Y. March 25, 2020). I believe it was error to discount Dr. Agboro-Idahosa's opinions, and the error was harmful.

And turning to Dr. Ferrin. Dr. Ferrin, a nonexamining consultant, issued an opinion on June 6, 2018 that is found at Exhibits 1A and 2A of the administrative transcript. He addressed the so-called B criteria under the listings and found only moderate limitations in the ability to understand, remember, or apply information, interacting with others; concentration, persistence, and maintaining pace, mild; and adapting and managing one's self, moderate. In his later mental residual functional capacity finding, he concluded that plaintiff retains the ability to perform basically simple work, he is able to understand and remember simple and detailed instructions. The claimant can adapt to changes in a routine work setting and can use appropriate judgment to make work-related decisions. He found that plaintiff was moderately limited in the ability to understand and remember detailed instructions, the ability to carry out detailed instructions, the ability to maintain attention and concentration for extended periods, the ability to perform activities within a schedule, the ability to complete a workday and workweek without interruption, the ability to interact appropriately with the general public, the ability to accept instructions and respond appropriately and the ability to respond appropriately to changes in the work setting.

The administrative law judge discussed the opinions of Dr. Ferrin at page 24 and found them implicitly, I would say that there was clearly no specific statement to this effect, but very implicit in his decision is that he found Dr. Ferrin's opinion persuasive. The plaintiff argues that Dr. Ferrin's opinion should not be relied on because it was based on review of only partial records.

First, let me say I do agree with the Commissioner that under the right circumstances, the opinion of a consultative examiner can trump the opinion of a treating source if it meets the consistency and supportability test under the new regulations. The Second Circuit as much as said that in Camille v. Colvin, 652 F.App'x 25 (2d Cir. 2016). However, I also agree that Dr. Ferrin very clearly did not have the benefit of a complete record, and although that does not necessarily disqualify the opinion as being relied upon, if there is significant subsequent treatment, particularly if the condition has worsened, then relying upon that opinion that is only based on partial records does not satisfy the substantial evidence test.

Here, the -- I'm not sure the administrative law judge's discussion of Dr. Ferrin's opinion is sufficient to permit meaningful review. It is also clearly inconsistent with Dr. Agboro-Idahosa, Dr. Hollandt, and Dr. Slowik. And although it is proper, again, to rely on a nonexamining consultant's opinion, it is particularly weak evidence. Abate v. Commissioner of Social Security, 2020 WL 2112322 (E.D.N.Y. May 4, 2020), another case that was cited under the former regulations but I think equally applicable under the new.

Significantly, the only records from the Tioga County Department of Mental Hygiene that were reviewed was the April 2018 intake, did not have the benefit of subsequent treatment records.

In my view it was an error, if he did find the opinion persuasive, to rely on that opinion to formulate his residual functional capacity. So I do find error in the weighing of medical opinions. I find that those errors are harmful because those opinions that were rejected are inconsistent with the residual functional capacity and accordingly, the vocational expert's hypothetical and testimony, and it does therefore affect the step five determination.

I note because of this finding, I will not address the DOT conflict issue.

The plaintiff has asked that the decision be vacated with a directed finding of disability; I don't find such persuasive evidence of disability that meets the rigid test for taking that step. Instead, I am going to vacate the determination of the Commissioner and remand the matter for further proceedings consistent with this opinion. So I will grant judgment on the pleadings to plaintiff on that basis. Thank you both for excellent presentations, please stay safe.

MS. LOMBARDI: Thank you, your Honor.

MR. POTTER: Thank you, your Honor.

MS. LOMBARDI: Stay safe, everyone.

(Proceedings Adjourned, 12:01 p.m.)

CERTIFICATE OF OFFICIAL REPORTER

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 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 7th day of January, 2022.

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

JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547

Footnotes

1 Plaintiff's complaint named Andrew M. Saul, in his official capacity as the Commissioner of Social Security, as the defendant. On July 12, 2021, Kilolo Kijakazi took office as the Acting Social Security Commissioner. She has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See 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.