Opinion

Nealer v. Commissioner of Social Security

Court
District Court, N.D. New York
Filed
Jun 27, 2022
Cited by
0 cases
Authority
More cited than 26.9%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

_________________________

BENJAMIN J. N.,

Plaintiff,

v. Civil Action No.

5:20-CV-1370 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

__________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LAW OFFICES OF KENNETH JUSTIN M. GOLDSTEIN, ESQ.

HILLER, PLLC

6000 North Bailey Ave., Suite 1A

Amherst, NY 14226

FOR DEFENDANT

SOCIAL SECURITY ADMIN. MICHAEL L. HENRY, 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

June 23, 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: June 27, 2022

Syracuse, NY

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

--------------------------------------------x

BENJAMIN J. N.,

Plaintiff,

vs. 5:20-CV-1370

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

--------------------------------------------x

Transcript of a Decision held during a

Telephone Conference on June 23, 2022, the HONORABLE

DAVID E. PEEBLES, United States Magistrate Judge,

Presiding.

A P P E A R A N C E S

(By Telephone)

For Plaintiff: LAW OFFICE OF KENNETH HILLER, PLLC

Attorneys at Law

6000 N. Bailey Avenue - Suite 1A

Amherst, New York 14226

BY: JUSTIN M. GOLDSTEIN, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION

Office of General Counsel

J.F.K. Federal Building

Room 625

Boston, Massachusetts 02203

BY: MICHAEL L. HENRY, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR

Official United States Court Reporter

100 South Clinton Street

Syracuse, New York 13261-7367

(315) 234-8547

1 (The Court and all counsel present by

2 telephone.)

3 THE COURT: I'd like to begin by thanking both

4 counsel for excellent and spirited presentations.

5 The plaintiff has commenced this proceeding

6 pursuant to 42 United States Code Sections 405(g) and

7 1383(c)(3) to challenge a determination by the Commissioner

8 of Social Security finding that the plaintiff was not

9 eligible for the benefits which he sought.

10 The background is as follows: Plaintiff was born

11 in October of 1985, he is currently 36 years of age. He

12 stands 5 foot 7 inches in height and weighs 175 pounds.

13 Plaintiff lives in Camillus in a house with his parents and a

14 sister. Plaintiff graduated high school with a local

15 academic diploma, he was number 317 out of 394 in his class,

16 with a 75.44 grade point average. He was in special

17 education and classified as learning disabled in written

18 expressions, reading, and math. Plaintiff has a driver's

19 license and drives.

20 Plaintiff's work history includes as a sorter for

21 the Onondaga County Library between September of 2004 and

22 February 2013, where he worked four days per week for four

23 hours each day. He left that position after being harassed

24 and accosted getting on and off the bus which he was required

25 to take to work. He then went to work with the town of

1 Camillus as a custodian on April 4 of 2014 and still is

2 employed there, or at least was at the time of the hearing in

3 this matter, working three hours per day, five days per week.

4 He testified that he never missed work, that's at page 33 to

5 34 of the administrative transcript. Plaintiff initially had

6 a job coach at the town of Camillus but no longer, according

7 to his father. Interestingly, when asked why he could not

8 work 40 hours per week at the hearing, at pages 39 and 40,

9 plaintiff stated that he could not but he was not sure why.

10 Physically, plaintiff does not suffer from any

11 issues that appear to affect his ability to perform basic

12 work functions.

13 Mentally, he suffers from a learning disorder, a

14 neurodevelopmental disorder, and mild mental disability. He

15 has been described as pleasant, cooperative, and soft spoken.

16 He has not undergone any psychiatric hospitalization or

17 specialized psychiatric treatment. Plaintiff does receive

18 treatment from a pediatrician, Dr. Thomas J. Abbamont, also

19 from Dr. Suzanne Lamanna, D.O., from October of 2008 to 2019,

20 as well as Family Nurse Practitioner Deirdre Wahl and in the

21 past also received services from Horizon Clinic with the ARC

22 of Onondaga, including Dr. Robert Sprafkin, from January of

23 2006 forward, and Christina Haynes, CAS, which I understand

24 stands for Certificate of Advanced Study.

25 Plaintiff has a fairly robust list of activities of

1 daily living. He is able to groom, dress, prepare food,

2 clean, do laundry, shop with assistance, drive, he can take

3 public transportation, he socializes with friends and family,

4 he swims, including in the Special Olympics, he likes sports,

5 including softball and basketball, he goes to Crunch,

6 Syracuse Crunch hockey games with friends, and he works on

7 the computer.

8 Procedurally, plaintiff applied for Title II and

9 Title XVI benefits on February 26, 2019, alleging an onset

10 date coinciding with his date of birth. It was noted that a

11 prior application in 2008 for benefits was denied. Plaintiff

12 claimed, at page 254, disability based upon a developmental

13 disability, mildly, a learning disability, and a full-scale

14 IQ of 69. The hearing was conducted to address plaintiff's

15 application for benefits on February 19, 2020 by

16 Administrative Law Judge Kenneth Theurer. ALJ Theurer issued

17 an unfavorable decision on March 6, 2020, which became a

18 final determination of the agency on October 19, 2020, when

19 the Social Security Administration Appeals Council denied his

20 application for review. This action was commenced on

21 November 4, 2020 and is timely.

22 In his decision, the ALJ applied the familiar

23 five-step sequential test for determining disability,

24 initially noting that plaintiff has an insured status through

25 December 31, 2024.

1 At step one he concluded that plaintiff had not

2 engaged in substantial gainful activity since October 7,

3 1985. He does obviously have earnings but the earnings fell

4 below the presumptive SGA levels.

5 At step two, ALJ Theurer found that plaintiff does

6 suffer from severe impairments that impose more than minimal

7 limitations on his ability to perform basic work activities,

8 including neurodevelopmental disorder and learning disorder.

9 At step three, however, he concluded that those

10 disabilities do not meet or medically equal any of the listed

11 presumptively disabling conditions set forth in the

12 Commissioner's regulations, specifically considering Listings

13 12.11 and 12.15.

14 After surveying the medical evidence of record, the

15 ALJ found that plaintiff retains the residual functional

16 capacity, or RFC, to perform a full range of work at all

17 exertional levels with the following additional limitations.

18 The claimant retains the ability to understand and follow

19 simple instructions and directions, perform simple tasks with

20 supervision and independently, maintain

21 attention/concentration for simple tasks, regularly attend to

22 a routine and maintain a schedule. The claimant is able to

23 relate to and interact with coworkers and supervisors to the

24 extent necessary to carry out simple tasks; that is, he can

25 ask for help when needed, handle conflicts with others, state

1 his own point of view, initiate or sustain a conversation and

2 understand and respond to physical, verbal, and emotional

3 social cues, but he should avoid work requiring more complex

4 interaction or joint efforts with coworkers to achieve work

5 goals. The claimant is able to handle reasonable levels of

6 simple work-related stress in that he can make simple direct

7 decisions directly related to the completion of his tasks in

8 a stable, unchanging work environment free of fast-paced

9 production requirements.

10 At step four, the administrative law judge

11 concluded that plaintiff did not have any past relevant work

12 to consider and proceeded to step five where, with the

13 benefit of a vocational expert's testimony, he concluded that

14 there is work available in the national economy that

15 plaintiff is capable of performing notwithstanding his

16 limitations, and cited three representative positions,

17 including dining room attendant, hand packager, and

18 housekeeper cleaner, and therefore concluded that plaintiff

19 was not disabled at the relevant times.

20 The court's function of course in this case is

21 twofold. I must determine whether correct legal principles

22 were applied, and secondly, whether the resulting

23 determination is supported by substantial evidence, which is

24 defined as such relevant evidence as a reasonable mind would

25 find sufficient to support a conclusion. As the Second

1 Circuit has noted under Brault, for example, v. Social

2 Security Administration Commissioner, 683 F.3d 443, Second

3 Circuit 2012, the substantial evidence standard is extremely

4 deferential and significant to overcome by a plaintiff. It

5 is even more stringent than the clearly erroneous standard

6 which we're all familiar with. Under the substantial

7 evidence standard, once an ALJ finds a fact, that fact can be

8 rejected only if a reasonable fact finder would have to

9 conclude otherwise.

10 In this case, plaintiff raises several contentions,

11 some of which are interrelated. He contends that the

12 residual functional capacity finding is not supported by

13 substantial evidence. He challenges the weight given to

14 medical opinions, including specifically the failure to weigh

15 Dr. Lamanna and FNP Wahl's opinions. He concludes that -- he

16 argues at step three there should have been a finding of

17 intellectual disability/severe mental retardation as a severe

18 impairment. He challenges the failure to request updated

19 medical opinions concerning plaintiff's cognitive ability.

20 He challenges the failure of the ALJ to evaluate plaintiff's

21 education and vocational records, including 14E, which

22 represents a VESID occupational or vocational analysis from

23 March 16, 2004, and 11F, which represents a psychological

24 evaluation performed in February of 2004 at West Genesee High

25 School. He also challenges the fact that the ALJ selectively

1 cited to the opinions of Ms. Haynes and Dr. Sprafkin and did

2 not weigh its persuasiveness. He argues that the ALJ

3 improperly failed to consider other factors, the permissive

4 factors under the regulations after finding Dr. Marks,

5 Dr. Momot-Baker, and Dr. Shapiro's opinions to be persuasive,

6 arguing that there was a duty to go beyond consistency and

7 supportability because those were found to be equally

8 persuasive. And lastly, improper evaluation of plaintiff's

9 subjective reports of symptomology, what we used to refer to

10 before as credibility.

11 Turning first to the medical opinions of record,

12 this case, because of the date of filing of plaintiff's

13 application, is subject to the new revised regulations of the

14 Commissioner concerning the weighing of medical opinions.

15 Under those regulations, the ALJ does not defer or give any

16 specific evidentiary weight, including controlling weight, to

17 any medical opinions or prior administrative medical findings

18 including those from a claimant's medical source. 20 C.F.R.

19 Sections 404.1520c(a) and 416.920c(a). The ALJ must consider

20 those opinions using the relevant factors, including

21 considering the supportability and consistency of those

22 opinions, and must articulate how persuasive he or she found

23 each medical opinion and explain why. The ALJ may also, but

24 is not required to, explain how he or she considered the

25 other relevant factors set forth in those regulations. I

1 note when it comes to weighing of medical opinions,

2 particularly potentially conflicting medical opinions, it is

3 also true that under Veino v. Barnhart, 312 F.3d 578 from the

4 Second Circuit 2002, the weighing of such medical opinions is

5 entrusted in the first instance to administrative law judges

6 and so long as the analysis is supported by substantial

7 evidence, it is not the function of the court to reweigh

8 medical opinions.

9 In this case, there is an opinion -- the focus

10 really is on the opinions of Dr. Lamanna and FNP Wahl, and

11 those opinions are rendered on forms that appear at 424 to

12 431 and address primarily physical issues. It's unclear who

13 sent the forms but it is clear that they are not mentioned in

14 the administrative law judge's decision. In my view, these

15 do not constitute medical opinions under the regulations and

16 therefore were not required to be mentioned when it comes to

17 the mental aspect. Clearly they are with regard to the

18 physical, because of the specific functional analysis, but

19 under 20 C.F.R. Section 404.1520b(c)(3), because the portion

20 of that opinion relates to disability, a matter reserved to

21 the Commissioner, there's no obligation, it is not a medical

22 opinion and there's no obligation to evaluate it pursuant to

23 the regulations. I note that the opinion does not address

24 intellectual disability -- it does address intellectual

25 disability but, as I said, it's a matter reserved to the

1 Commissioner. The better practice clearly would have been to

2 discuss this opinion, but I find that there is no error.

3 With regard to step two, it is true that at step

4 two, an impairment is severe if it significantly limits a

5 physical or mental ability to do basic work activities which

6 are defined as the abilities and aptitudes necessary to do

7 most jobs. It is clearly de minimus and intended to screen

8 out all of the weakest cases. As a backdrop, however, I note

9 that it is the plaintiff's burden through step four to

10 establish limitations associated with any mental or physical

11 conditions. In my view, Dr. Lamanna's opinions do not

12 establish such limitations, nor does any other evidence in

13 the record. I also note that because there were other, there

14 were other impairments that were found to be severe at step

15 two, the administrative law judge continued with the analysis

16 through step five and therefore any failure to find a

17 cognitive disability significant at step two would be

18 harmless error.

19 The RFC challenge relates to -- well, the plaintiff

20 has challenged the RFC finding. An RFC represents the

21 finding of a range of tasks the plaintiff is capable of

22 performing notwithstanding his or her impairments.

23 Ordinarily an RFC represents a claimant's maximum ability to

24 perform sustained work activities in an ordinary setting on a

25 regular and continuing basis, meaning eight hours a day for

1 five days a week or an equivalent schedule. Tankisi v.

2 Commissioner of Social Security, 521 F.App'x 29, Second

3 Circuit 2013. To properly ascertain a claimant's RFC, an ALJ

4 must assess plaintiff's exertional and nonexertional

5 limitations, and of course an RFC finding, as any other

6 finding, must be supported by substantial evidence.

7 In this case, the RFC I find is supported

8 adequately by substantial evidence. Plaintiff has

9 demonstrated his ability to perform part-time work and was

10 unable to articulate why in his view he could not work 40

11 hours per week five day -- 40 hours per week five days per

12 week. He's a high school graduate, as the administrative law

13 judge points out, with a 75.44 GPA and was not in the bottom

14 of his class. He has a driver's license and drives. He has

15 a very robust group of activities of daily living. The

16 Dr. Shapiro consultative report from 2008 supports the RFC

17 finding and I agree with the Commissioner that this is not a

18 worsening case of depression or anxiety or PTSD or bipolar

19 disease; it is a case involving literally a cognitive issue

20 which is static.

21 And having reviewed Dr. Lamanna's treatment notes,

22 for example, I did not see any evidence of worsening so I

23 think reliance on Dr. Shapiro's opinion was proper. I also

24 note that it is supported by NP Wahl's treatment note that

25 appears at 391 of the administrative transcript, plaintiff

1 does good with routine, denies anxiety, depression, memory

2 loss, and mood changes. It is also supported by the opinions

3 of two state agency consultants, Dr. Marks, Dr. Momot-Baker.

4 It is well accepted that a state agency consultant's opinions

5 can provide substantial evidence, in a case Heim v.

6 Commissioner of Social Security, 2018 WL 1621521, that's from

7 the Northern District of New York, March 30, 2018; Camille v.

8 Colvin, 652 F.App'x 25 from the Second Circuit, June 15,

9 2016; and A.B. v. Commissioner of Social Security, 2018 WL

10 3232347 from the Northern District of New York, June 29,

11 2018.

12 In my view, the challenge to the residual

13 functional capacity and the weighing of medical evidence

14 requests this court improperly to reweigh, and something

15 proscribed by Veino. Dr. Abbamont, plaintiff's pediatrician,

16 gave an opinion from September of 2004, it appears at 438.

17 The administrative law judge referenced it and indicated why

18 he believed it was, it was not persuasive, including the fact

19 that it predated plaintiff's ability to drive and obtain a

20 driver's license and to perform part-time work. I note that

21 I've gone through Dr. Lamanna's treatment notes and they do

22 not appear to support a claim of worsening or even the

23 inability to perform pursuant to the RFC. In April of 2014

24 at page 420, plaintiff was alert, oriented times three,

25 affect appropriate, shy, memory grossly intact, attention

1 within normal limits. In April of 2015, Nurse Practitioner

2 Carol Scalzo notes at 415 to 419, plaintiff denies

3 psychiatric symptoms, cooperative, memory grossly intact,

4 affect appropriate. 412 to 414, on November 2, 2015 Nurse

5 Practitioner Amy Perin notes that plaintiff was alert,

6 oriented times three, normal affect, memory grossly intact.

7 May of 2016, 407 to 411, plaintiff denies psychiatric

8 problems and symptoms, alert, oriented times three. May 10,

9 2016, when he appears with a urinary tract infection, at 404

10 to 406 he is described as alert, oriented times three, normal

11 affect, memory generally intact. May 8, 2017 at pages 400 to

12 403, plaintiff denies psychiatric problems, alert, oriented

13 times three, cooperative attitude, normal affect.

14 December 11, 2017, 397 to 399, able to communicate

15 appropriately for age, alert, oriented times three, no

16 apparent anxiety, depression, or agita, affect appropriate.

17 May of 2018, 393 to 396, plaintiff denies crying, loss of

18 interest, memory loss, displays cooperation, affect

19 appropriate, has job, functions well. In April 2019, at 391

20 to 392, Nurse Practitioner Deirdre Wahl writes, plaintiff

21 denies anxiety, depression, memory loss, mood changes, does

22 good with routine and is cooperative, affect appropriate. In

23 June of 2019, 446 to 450, plaintiff denies difficulty

24 concentrating, mood changes, alert, oriented times three,

25 affect appropriate.

1 When it comes to severe mental retardation, the

2 plaintiff suggests that that would be an appropriate finding,

3 but that is defined as having an IQ of between 20 and 34.

4 Plaintiff has conceded, including in his function report,

5 that he has a full-scale IQ of 69; therefore, he does not

6 qualify and there's no evidence to support classifying him as

7 suffering from severe mental retardation.

8 In terms of evaluation of plaintiff's symptoms,

9 obviously an ALJ must take into account subjective complaints

10 of symptomology when making the five-step disability analysis

11 but is not required to blindly accept the subjective

12 testimony of a claimant. Instead, the ALJ retains broad

13 discretion to evaluate a claimant's subjective testimony and

14 when doing so, should consider a variety of factors that

15 ordinarily would inform any finding of credibility in any

16 context and must obviously explain the basis for his or her

17 finding. Factors that can be considered include daily

18 activities, location, duration, frequency, and intensity of

19 symptoms, precipitating and aggravating factors, type,

20 dosage, effectiveness and side effects of any medications

21 taken, other treatment received, and other measures taken to

22 relieve symptoms.

23 In this case, the ALJ followed the prescribed

24 two-step method of determining and weighing the symptomology,

25 I believe it's Social Security Ruling 16-3p sets forth that

1 prescribed analysis. The ALJ is entitled to considerable

2 deference and essentially the plaintiff is asking the court

3 to reweigh the evidence which should only be done if there's

4 a compelling reason. In this case, I don't find any and I

5 defer to the ALJ's analysis of plaintiff's subjective

6 complaints.

7 Next there is an argument that the Commissioner

8 erred by failing to consider the VESID report from March of

9 2004 that appears at 328 to 341 of the record and the Sarah

10 Abair 2004 psychological evaluation from February of 2004, it

11 appears at 434 to 437. Neither opinion was referenced. In

12 my view, for the same reasons cited earlier, those opinions

13 do not constitute medical opinions. In any event, plaintiff

14 has not explained how consideration of those opinions would

15 change the outcome of the case, and of course those opinions

16 are stale. Interestingly, in the VESID report, at 332 to

17 334, Beth Welch notes that plaintiff might do well as a clerk

18 or janitor, kind of prescient since he is now in a position

19 of a janitor.

20 When it comes to duty to develop the record, I

21 don't find any glaring gaps in the record. The record

22 contains sufficient evidence to evaluate plaintiff's claim of

23 disability. I note that there is some responsibility,

24 although it's a nonadversarial proceeding, at a hearing there

25 is still some responsibility of a plaintiff's representative.

1 In this case plaintiff's representatives were asked, or was

2 asked whether the record was complete and stated that it was,

3 and that could be viewed as sufficient and as a waiver of any

4 claim of any gap that should have been filled. Latonya

5 T.E.B. v. Commissioner of Social Security, 2021 WL 4033148

6 from the Northern District of New York, September 3, 2021,

7 and Jason C. v. Berryhill, 2019 WL 1409804, from the Northern

8 District of New York, March 28, 2019. Although let me be

9 clear, I don't believe that there was a gap that should have

10 been filled.

11 I'll close by saying I believe this to be somewhat

12 of a close case and the ALJ's decision is certainly not a

13 model of clarity or thoroughness, there should have been

14 discussion of Dr. Lamanna's opinions, but I don't find any of

15 the errors that I've alluded to to be fatal. And so in

16 conclusion, I find that the determination resulted from the

17 consideration of proper legal principles and is supported by

18 substantial evidence, so I will grant judgment on the

19 pleadings to the defendant and order plaintiff's complaint

20 dismissed.

21 Thank you both, I hope you have a good day.

22 MR. HENRY: Have a good day.

23 (Proceedings Adjourned, 12:00 p.m.)

24

25

1 CERTIFICATE OF OFFICIAL REPORTER

2

3

4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal

5 Official Realtime Court Reporter, in and for the

6 United States District Court for the Northern

7 District of New York, DO HEREBY CERTIFY that

8 pursuant to Section 753, Title 28, United States

9 Code, that the foregoing is a true and correct

10 transcript of the stenographically reported

11 proceedings held in the above-entitled matter and

12 that the transcript page format is in conformance

13 with the regulations of the Judicial Conference of

14 the United States.

15

16 Dated this 24th day of June, 2022.

17

18

19 /S/ JODI L. HIBBARD

20 JODI L. HIBBARD, RPR, CRR, CSR

Official U.S. Court Reporter

21

22

23

24

25

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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