The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
_________________________
MATTHEW K. V.,
Plaintiff,
v. Civil Action No.
5:20-CV-1197 (DEP)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
__________________________
APPEARANCES: OF COUNSEL:
FOR PLAINTIFF
MEGGESTO, CROSSETT & KIMBERLY A. SLIMBAUGH, ESQ.
VALERINO, LLP
313 East Willow Street, Suite 201
Syracuse, NY 13203
FOR DEFENDANT
SOCIAL SECURITY ADMIN. LISA SMOLLER, ESQ.
625 JFK Building
15 New Sudbury St
Boston, MA 02203
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
ORDER
Currently pending before the court in this action, in which plaintiff
seeks judicial review of an adverse administrative determination by the
Commissioner of Social Security (“Commissioner”), pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3), are cross-motions for judgment on the
pleadings.1 Oral argument was heard in connection with those motions on
January 20, 2022, during a telephone conference conducted on the
record. At the close of argument, I issued a bench decision in which, after
applying the requisite deferential review standard, I found that the
Commissioner=s determination resulted from the application of proper legal
principles and is supported by substantial evidence, providing further detail
regarding my reasoning and addressing the specific issues raised by the
plaintiff in this appeal.
After due deliberation, and based upon the court=s oral bench
decision, which has been transcribed, is attached to this order, and is
incorporated herein by reference, it is hereby
ORDERED, as follows:
1) Defendant=s motion for judgment on the pleadings is
GRANTED.
1 This matter, which is before me on consent of the parties pursuant to 28
U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in
General Order No. 18. Under that General Order, once issue has been joined, an
action such as this is considered procedurally as if cross-motions for judgment on the
pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure.
2) |The Commissioner’s determination that the plaintiff was not
disabled at the relevant times, and thus is not entitled to benefits under the
Social Security Act, is AFFIRMED.
3) The clerk is respectfully directed to enter judgment, based
upon this determination, DISMISSING plaintiff's complaint in its entirety.
U.S. Magistrate Judge
Dated: January 25, 2022
Syracuse, NY
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-----------------------------------------------------x
MATTHEW K.V.,
Plaintiff,
vs. 5:20-CV-1197
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
-----------------------------------------------------x
DECISION - January 20, 2022
the HONORABLE DAVID E. PEEBLES
United States Magistrate Judge, Presiding
APPEARANCES (by telephone)
For Plaintiff: MEGGESTO, CROSSETT & VALERINO, LLP
313 East Willow Street
Syracuse, NY 13203
BY: KIMBERLY A. SLIMBAUGH, ESQ.
For Defendant: SOCIAL SECURITY ADMINISTRATION
J.F.K. Federal Building
15 Sudbury Street
Boston, MA 02203
BY: LISA SMOLLER, ESQ.
Eileen McDonough, RPR, CRR
Official United States Court Reporter
P.O. Box 7367
Syracuse, New York 13261
(315)234-8546
THE COURT: Let me begin by commending counsel for
excellent written and oral presentations. I have enjoyed
working with you on this matter.
The plaintiff has commenced this proceeding
pursuant to 42, United States Code, Sections 405(g) and
1383(c)(3) to challenge a determination by the Acting
Commissioner of Social Security finding that Mr. Villie was
not disabled at the relevant times and, therefore, is
ineligible to receive the benefits for which he applied.
The background is as follows. Plaintiff was born
in April of 1993 and is currently 28 years old. He was
twenty years of age at the alleged onset of disability on
February 1, 2014. Plaintiff lives in Baldwinsville with his
mother and stepfather, as well as a 16-year-old sister. The
sister was 16 years old at the time of the hearing, that is.
Plaintiff stands 5-foot 11-inches in height and weighs
250 pounds, making him clinically I think obese to some
degree.
Plaintiff has a GED which was achieved in April of
2011. He was home schooled due to bullying that he
experienced in whatever school setting he was previously in.
He also underwent one full and one partial semester of
college education.
In terms of work, plaintiff worked from July 2011
to February 2014 at Wegmans in customer service, where he had
various duties, including as a cashier, bagger and helper, as
well as a bakery unloader. There was also a reference to a
two day failed work attempt in 2015.
The focus of this case is on plaintiff's mental
health. He suffers from various impairments, including
depression, social anxiety disorder, agoraphobia, attention
deficit and hyperactivity disorder. He stated to
Dr. Shapiro, I believe, that he was hospitalized it sounds
like three times in 2010 and 2011. There is no indication of
any mental health treatment in the record prior to
February 26, 2016, when he began treating with his primary
care provider, Dr. Alberto Del Pilar, who addressed his
physical as well as mental health situation.
Plaintiff later began treatment with Dr. Donald
Pilch in October of 2017. He testified, he stated that he
sees Dr. Pilch monthly. He also treats with licensed
clinical psychologist -- or, social worker Greg, his name was
Heffner and later it changed to Moore, who he has seen weekly
since June of 2016.
Physically, as I alluded to, plaintiff suffers from
obesity, which does not appear, nor does he claim, that it
poses any limitation on his ability to perform basic work
functions.
In terms of activities of daily living, plaintiff
is able to dress, bathe, groom, cook, drive, clean, do
laundry, does some shopping, he can travel, plays video
games, works on the computer, he mows the lawn, he socializes
with friends, watches television, listens to music, goes for
walks, and cares for pets, including a puppy.
Procedurally, plaintiff applied for Title II and
Title XVI benefits under the Social Security Act on May 2,
2018, alleging an onset date of February 1, 2014. In his
functional report at page 118 -- might be 178, I can't read
my own writing -- he claimed disability based on anxiety,
depression and ADHD.
A hearing was conducted on October 31, 2019, by
Administrative Law Judge John Ramos to address plaintiff's
application for benefits. ALJ Ramos issued an unfavorable
decision on November 19, 2019. That became a final
determination of the Agency on August 12, 2020, when the
Social Security Administration Appeals Council denied
plaintiff's application for review. This action was
commenced on September 30, 2020, and is timely.
In his decision, ALJ Ramos applied the familiar
five-step sequential test for determining disability. He
noted at the outset that plaintiff was last insured under the
Social Security Act on December 31, 2015.
He found at step one of the analysis that plaintiff
had not engaged in substantial gainful activity since
February 1, 2014, notwithstanding the existence of a modest
amount of earnings since that time.
At step two, he concluded that plaintiff suffers
from severe impairments that impose more than minimal
limitations on his ability to perform basic work functions,
including social anxiety disorder, agoraphobia and ADHD.
At step three, ALJ Ramos 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
12.06 and 12.11.
At step four -- before proceeding to step four, I
should say, the Administrative Law Judge concluded that
plaintiff retains the residual functional capacity, or RFC,
to perform work at all exertional levels with the following
limitations, all of which relate to his mental health
conditions: The claimant retains the ability to understand
and follow simple instructions and directions; to perform
simple tasks with supervision and independently; to maintain
attention/concentration for simple tasks; and to regularly
attend to a routine and maintain a schedule. He can have
occasional interaction with supervisors and co-workers, but
no interaction with the public. He can make decisions
directly related to the performance of simple work and handle
usual workplace changes and interactions associated with
simple work. He should work in a position where he is not
responsible for the work of others or required to supervise
others and in a position with little change in daily work
processes or routine.
Applying the RFC finding, the ALJ determined that
plaintiff at step four is capable of performing his past
relevant work as an unloading laborer as generally performed,
according to the testimony of the vocational expert, but
cannot work as a cashier or bagger. And consequently, the
analysis was ended without the ALJ proceeding to step five.
The Court's function at this stage is to determine
two things; whether correct legal principles were applied and
whether the result is supported by substantial evidence.
Substantial evidence is defined as such relevant
evidence as a reasonable person would find sufficient to
support a conclusion. As the Second Circuit has noted in
Brault versus Social Security Administration Commissioner,
683 F.3d 443 (Second Circuit 2012) it is an extremely
deferential standard, perhaps more stringent even than the
clearly erroneous standard. In Brault significantly the
Court noted that under the standard, when an ALJ finds a
fact, a fact can be rejected only if a reasonable factfinder
would have to conclude otherwise.
In this case plaintiff has raised three basic
issues. He contends that the ALJ erred in evaluating the
medical opinions of record with the focus being on LCSW
Moore's opinions and Dr. Jeanne Shapiro's consultative
opinions. Secondly, he challenges the RFC finding, in a
related way, I should say. And thirdly, he claims that the
ALJ failed to resolve a conflict between the vocational
expert's testimony and the DOT.
As a threshold matter, I note that it certainly
does not matter what the Court would do faced with the record
that was before the Agency, and the key is whether the Agency
determination is supported by substantial evidence.
Secondly, I would note that it is plaintiff's
burden to establish limitations stemming from his impairments
up through step four, including at the RFC stage.
And thirdly, the weight to be given to conflicting
medical opinions lies with the Administrative Law Judge under
Veino v. Barnhart, 312 F.3d 578 (Second Circuit 2002).
So there are three medical opinions in the record.
The first is from Dr. Shapiro who examined plaintiff in July
of 2018. Her opinion appears at 428 to 432 of the
Administrative Transcript. In recording her observations of
the plaintiff, she found Mr. Villie, his demeanor and his
responsiveness to questions cooperative, his manner of
relating, social skills, and overall presentation adequate.
He looked his age. He was appropriately dressed. His
personal hygiene and grooming was good. The speech
intelligibility was fluent, thought processes were coherent
and goal directed with no evidence of delusions,
hallucinations, or disordered thinking. His affect was
congruent. The sensorium was clear. He was oriented times
three. His attention and concentration were intact. His
recent and remote memory skills were intact. His
intellectual functioning was estimated to be in the average
range.
The medical source statement finds no limitations
in certain areas, mild limitations in certain other areas,
and moderate to marked limitations in interacting adequately
with supervisors, co-workers, and the public, in sustaining
concentration, and performing a task at a consistent pace
depending on his level of anxiety, in sustaining an ordinary
routine and regular attendance at work, and in regulating
emotions and controlling behavior, and maintaining
well-being.
The Administrative Law Judge discussed Dr. Moore's
opinions at page 23 of the Administrative Transcript and
found her opinions to be partially persuasive, noting
significantly, while the record supports some limitations due
to the claimant's reported social anxiety, his ability to
interact with family and friends, as well as his ability to
travel alone for several days at a time, and to interact with
others in some contexts does not support marked limitations.
The Administrative Law Judge ultimately found that
Dr. Shapiro was overstating the extent of plaintiff's
limitations.
The second opinion of record is from a
non-examining state agency consultant, Dr. Stephen Hennessy,
Ph.D, from August 7, 2018. It appears at 3A and 4A of the
Administrative Transcript. And the finding of Dr. Hennessy
is as follows. In understanding and memory, the claimant is
able to understand and remember simple, some more detailed
but not highly complex, instructions and work procedures. In
the area of sustained concentration and persistence, he found
that the claimant possesses the attention/concentration and
persistence necessary to complete simple, some more detailed
but not highly complex, tasks consistently on a sustained
basis. In social interaction, he concluded that plaintiff is
able to respond to supervisors and co-workers appropriately
but would have difficulty dealing with the general public.
And in adaptation, noted the claimant can adapt to changes in
detailed, non-complex task environment and can use
appropriate judgment to make effective task-related decisions
in such settings.
The opinion of Dr. Hennessy generally supports the
residual functional capacity finding. It was discussed at
page 23 of the Administrative Transcript and found to be more
persuasive than Dr. Shapiro's opinion.
The third medical opinion is actually two opinions
given by LCSW Moore. The first appears at 456 to 461 of the
Administrative Transcript. And in it Mr. Moore notes certain
symptoms that plaintiff experiences and then notes very
restrictive limitations in various areas without explanation.
For example, he finds claimant has no useful ability to
function and working in coordination or in proximity to
others without being unduly distracted, accepting
instructions and responding appropriately to criticism from
supervisors, and dealing with normal work stress. He also
finds that the plaintiff is unable to meet competitive
standards in a host of categories and opines that he would be
off task 25 percent or more of the time and absent more than
four days per month.
The opinion is augmented by a letter dated
September 9, 2019, it appears at page 463 of the
Administrative Transcript, wherein Mr. Moore states that the
identified symptoms from the prior report remain present.
And it goes on to state, "In fact, and due to some chaotic
challenges in Matthew's family, his symptoms of anxiety and
tendency to isolate socially has intensified. I feel somewhat
confident that Matthew will regain lost ground once the
family stabilizes."
The opinion was discussed at page 23 also of the
Administrative Transcript by the Administrative Law Judge and
found to be not persuasive. The reasons given were several.
It is a check-box form failing to cite specific clinical and
diagnostic findings to support the opinion. The update does
not reflect the progress that the claimant made during the
intervening year as reflected in the treatment notes. Third,
the limitations are not consistent with other sources such as
the psychological reviewer, that being Dr. Hennessy. Four,
is not consistent with the overall record. And five, it is
noted that the provider is not an approved medical source,
whereas Dr. Hennessy and Dr. Shapiro both qualify in that
category.
Because the application in this case was filed
after March of 2017, the new regulations apply. Under the
new regulations, an ALJ does not defer or give specific
evidentiary weight, including controlling weight or any
particular medical opinion, but instead must consider that
the opinions used in the relevant factors particularly
supportability and consistency, and must articulate how
persuasive he or she found each medical opinion and explain
why. There are other factors that may be considered,
including the source's relationship with the claimant, and
the treatment relationship and so forth, the specialization
of the source, and other factors that tend to support or
contradict the medical opinion.
In this case the new regulations do draw a
distinction between an acceptable medical source and a
medical source. Under 20 CFR Section 404.1502a and b,
Dr. Shapiro and Dr. Hennessy are clearly acceptable medical
sources. The ALJ appropriately characterized Mr. Moore as a
medical source but not an acceptable medical source.
There isn't any authority that I'm familiar with
that prohibits an ALJ from drawing that distinction and
taking it into account. The ALJ in this case looked to
supportability and consistency. When he analyzed the
opinions of Mr. Moore, he noted that it was a check-box form
which case law indicates is of less value. I agree that it
cannot be the sole reason to discount an opinion that it is a
check-boxed form without explanation, but it's certainly a
proper consideration.
In this case the ALJ went further and analyzed
plaintiff's treatment notes at 21 and 22 of the
Administrative Transcript. The opinion of Mr. Moore is not
supported by Dr. Pilch's treatment notes, or the treatment
notes of Dr. Gautan or Dr. Del Pilar from Compassionate
Family Medicine. There is some support for Mr. Moore's
opinions from Dr. Shapiro, but those portions showing marked
limitations were properly rejected and the rejection was
properly explained. Dr. Hennessy, his opinions support the
ALJ's RFC finding and can be given weight of support.
Turning to the residual functioning capacity
argument, which is somewhat intertwined, obviously one of the
pivotal functions of an ALJ is to establish an RFC for the
plaintiff representing the plaintiff's maximum ability to
perform sustained work activities in an ordinary setting on a
regular and continuing basis, meaning eight hours a day for
five days a week, or an equivalent schedule. Tankisi versus
Commissioner of Social Security, 521 F.App'x 29 (Second
Circuit 2013). The ALJ's RFC determination must be supported
and informed by all of the relevant medical and other
evidence and of course supported by substantial evidence.
Noteworthy is the fact that although I think
Dr. Hennessy's opinion comes very close, there is no
requirement that a residual functional capacity finding
tracks anyone particular medical opinion. Terri G. versus
Commissioner of Social Security, 2019 WL 1318074 (N.D.N.Y.
2019) and Matta v. Astrue, 508 F.App'x 53 (Second Circuit
2013). I also note, as was the case here, that a state
agency non-examining consultant's opinion, if it is properly
supported, can override the determination or the finding of
another medical source. Under the Second Circuit's decision
in Camille versus Colvin, 652 F.App'x 28 (Second Circuit
2016).
I note that the activities, plaintiff's activities
of daily living were considered, and there is an indication
that the restrictive findings of Dr. Shapiro and Mr. Moore,
page 191, plaintiff stated he has no problem with people of
authority. 359, has trips to Elmira and more. 390 and 391,
he spoke of a trip to DC, which was later referenced at 551,
on June 19, 2018, where he went to visit a friend in Maryland
to hang out. He did well on trip itself. Happy to go to a
concert and be around many people. It was also discussed at
452 of the Administrative Transcript, client discussed trip
to DC to see his friend. Has a good time and did several
things socially, which were a bit of a stretch for his
anxiety. 422, he testified where he stated to a provider
that he took a trip to see friends. 429, he goes to the gas
station. 436, he visits his grandparents. 437, he went on
the family vacation trip. So the treatment notes appear to
support Dr. Hennessy and undermine the opinions of Mr. Moore
in the Court's view.
It is the plaintiff's burden to show that the RFC
finding of the ALJ does not adequately account for stress in
the workplace; Moxham v. Commissioner of Social Security,
2018 WL 1175210 (N.D.N.Y. 2018). Plaintiff did not carry
this burden. There is no evidence to rebut the ALJ's finding
that plaintiff can interact with friends and family and can
travel. The accounts of those travel experiences are
recounted at page 22 of the Administrative Transcript.
Simply stated, I find that the plaintiff has failed
to carry his burden of showing greater limitations than those
identified in the RFC.
Turning to the step four argument, it is proper, of
course, at step four to rely on a vocational expert's
testimony based on a hypothetical which approximates, closely
approximates the residual functional capacity determination.
I note that it is plaintiff's burden at step four to
establish limitations that preclude past relevant work. In
this case the Administrative Law Judge relied on the
testimony of the vocational expert to find that the plaintiff
could perform at least some of the duties of his past
relevant work and therefore is not disabled.
Plaintiff hinges this argument on SSR 00-4p, which
relates to vocational expert testimony and the conflict
between such testimony and the DOT. Under SSR 00-4p if there
is a conflict between the DOT and the vocational expert's
testimony, it is the ALJ's duty to inquire and clarify how it
is resolved.
In this case the issue is the extent of
interactions with supervisors and the public associated with
the past relevant work. The vocational expert was asked
about it and stated at page 51 and 52 of the Administrative
Transcript the DOT did not address this issue. He was
instead relying on his experience, education and expertise
when he opined concerning the extent of that interaction. I
don't find that there was an actual conflict. It is clear
that when a VE testifies to a limitation that is not
addressed in the DOT, there is no conflict and no duty under
SSR 00-4p to resolve it. Jeanette S.U. v. Saul, 2020 WL
1494168 (N.D.N.Y. March 11, 2020); Reisinger v. Commissioner
of Social Security, 2017 WL 2198965, footnote 14, (N.D.N.Y.
May 18, 2017); and also Abar v. Colvin, 2016 WL 1298135
(N.D.N.Y. March 31, 2016).
So, in conclusion, I find that the Commissioner's
determination in this case resulted from the application of
proper legal principles and is supported by substantial
evidence. I will, therefore, award judgment on the pleadings
to the defendant and order dismissal of plaintiff's
complaint.
Thank you both. I hope you stay safe and warm.
* * *
CERTIFICATION
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
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.
Been UWeDeneugh
EILEEN MCDONOUGH, RPR, CRR
Federal Official Court Reporter