Piche v. Commissioner of Social Security

Filing 21

ORDER: It is hereby ORDERED that Defendant's # 19 motion for judgment on the pleadings is GRANTED; and it is further ORDERED that the 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; and it is further ORDERED that the clerk is respectfully directed to enter judgment, based upon this determination, DISMISSING plaintiff's # 1 complaint in its entirety. Signed by Magistrate Judge David E. Peebles on 1/11/2022. (pjh, )

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
_________________________
JENNIFER A. P.,
v.

Plaintiff,

Civil Action No.
5:20-CV-0758 (DEP)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
__________________________
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
CONBOY, MCKAY LAW FIRM
407 Sherman Street
Watertown, NY 13601-9990

VICTORIA H. COLLINS, ESQ.

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

RAMI VANEGAS, ESQ.

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.

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 2 of 17

§§ 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 6, 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.
2)

The Commissioner=s determination that the plaintiff was not

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.
1

2

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 3 of 17

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:

January 11, 2022
Syracuse, NY

3

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 4 of 17

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------------------------------x
JENNIFER P.,
Plaintiff,
-v-

5:20-CV-758

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
------------------------------------------------------x
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE DAVID E. PEEBLES
January 6, 2022
100 South Clinton Street, Syracuse, New York

For the Plaintiff:
(Appearance by telephone)
CONBOY, MCKAY LAW FIRM
407 Sherman Street
Watertown, New York 13601
BY: VICTORIA H. COLLINS, ESQ.
For the Defendant:
(Appearance by telephone)
SOCIAL SECURITY ADMINISTRATION
15 New Sudburty Street
Boston, Massachusetts 02203
BY: RAMI VANEGAS, ESQ.

Hannah F. Cavanaugh, RPR, CRR, CSR, NYACR, NYRCR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
[phone]

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 5 of 17
JESSICA P. v. SOCIAL SECURITY
1
2

2

(The Court and all parties present by telephone.
Time noted:

3

11:18 a.m.)

THE COURT:

Let me begin by thanking both of you

4

again for excellent presentations.

5

you.

6

I have enjoyed working with

Plaintiff has commenced this proceeding pursuant to

7

42, United States Code, Sections 405(g) and 1383(c)(3) to

8

challenge a determination by the Commissioner of Social

9

Security -- I should say Acting Commissioner now, finding that

10

she was not disabled at the relevant times and therefore is

11

ineligible for the benefits for which she applied.

12

The background is as follows:

Plaintiff was born in

13

April of 1969 and is currently 52 years of age.

14

47 years old at the time of the alleged onset of disability in

15

August of 2016.

16

height and weighs at various times, or has weighed, between 155

17

and 170 pounds.

18

December of 2016.

The evidence is some equivocal as to whether

19

she lives alone.

She testified she lives alone in an apartment

20

in Watertown, but told Dr. Noia at page 914 of the

21

Administrative Transcript that she lives with a friend.

22

She was

Plaintiff stands approximately 5'3" inches in

Plaintiff is a widow.

Her husband died in

Plaintiff has a high school diploma and two years of

23

college education in accounting.

24

while in school.

25

secretarial training at BOCES.

She was in regular classes

She has also undergone medical and dental
She does not possess a driver's

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 6 of 17
JESSICA P. v. SOCIAL SECURITY
1

3

license.

2

Plaintiff stopped working -- there's an indication

3

that it was April of 2016, elsewhere in the record August 4,

4

2015.

5

indicates April of 2016.

6

working due to her husband's illness.

7

she was a self-employed person in the construction industry.

8

She was also a call center operator and a bookkeeper.

9

I believe it was the function report at page 35 she
There's an indication she stopped
Prior to stopping work,

Physically, plaintiff suffers from back pain and

10

cervical spondylosis, as well as abdominal pain.

11

undergone approximately seven hernia surgeries.

12

ilioinguinal blocks in August and October of 2018.

13

testified those did not help with her pain.

14

suffer from hip pain, knee pain, migraines, vertigo, but doesn't

15

appear to have any ongoing consistent treatment for those

16

conditions.

17

She has
She has had
She

She also claims to

Mentally, plaintiff suffers from posttraumatic stress

18

disorder or PTSD, panic disorder, agoraphobia, major depressive

19

disorder, and there's some indication that there was a possible

20

hospitalization or appearance at an emergency department of a

21

hospital in 2018, perhaps for mental health issues.

22

Plaintiff's primary physician is -- treating source

23

is Physician's Assistant Marcus Knapp with the Samaritan Family

24

Health Center.

25

every two weeks and has since approximately April of 2014.

She also sees psychologist Dr. Lawrence Littell

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 7 of 17
JESSICA P. v. SOCIAL SECURITY

4

1

Plaintiff undergoes treatment with Pain Solutions of Northern

2

New York with Dr. Bhupinder Bolla primarily for her abdominal

3

issues.

4

but no mopping, cooking, she shops with help, does dishes,

5

watches television, watches movies, does puzzle books, and

6

reads.

Plaintiff's activities of daily living include cleaning

7

Plaintiff has been prescribed over time various

8

medications primarily addressing her mental health issues

9

including Zoloft, Depakote, Wellbutrin, Klonopin, Sonata.

After

10

her surgery, she has been prescribed some pain medications,

11

although she testified at page 40 that doctors will not

12

prescribe any pain medications for her currently.

13

prescribed medical marijuana, but was decertified for that

14

prescription in October of 2018 due to having missed

15

appointments.

16

marijuana.

17

Plaintiff was

Plaintiff smokes cigarettes and obviously

Plaintiff procedurally applied for Title II and Title

18

XVI benefits on October 30, 2017, alleging an onset date of

19

August 4, 2016.

20

inability to work based upon severe anxiety, panic attacks,

21

depression, seven hernia surgeries, and pain in her hip to her

22

knees.

23

Jeremy Eldred on July 1, 2019, to address plaintiff's

24

application for benefits.

25

decision on August 16, 2019.

In support of her application, she claimed the

A hearing was conducted by Administrative Law Judge

ALJ Eldred issued an unfavorable
That became a final determination

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 8 of 17
JESSICA P. v. SOCIAL SECURITY

5

1

of the agency on June 9, 2020, when the Social Security

2

Administration Appeals Council denied plaintiff's request for a

3

review.

4

timely.

5

This action was commenced on July 8, 2020, and is

In his decision, ALJ Eldred applied the familiar

6

five-step sequential test for determining disability.

7

noted that plaintiff was last insured or would be -- yes, was

8

last insured for benefits on December 31, 2021.

9

concluded plaintiff had not engaged in substantial gainful

10

activity since August 4, 2016.

11

He first

At step one, he

some income in 2017 but it was not for working.

12

He did note that she did receive

At step two, ALJ Eldred concluded that plaintiff does

13

suffer from severe impairments that impose more than minimal

14

limitations on her ability to perform basic work functions,

15

including degenerative changes of the lumbar spine, cervical

16

spondylosis, ilioinguinal neuralgia status post multiple hernia

17

repairs, major depressive disorder, generalized anxiety

18

disorder, panic disorder, and PTSD.

19

At step three, the Administrative Law Judge concluded

20

that plaintiff's conditions do not meet or medically equal any

21

of the listed presumptively disabling conditions set forth in

22

the Commissioner's regulations, specifically addressing 1.04

23

with respect to plaintiff's physical issues, noting that there

24

was no listing for ilioinguinal hernias, and the 12.00 and

25

following listings with regard to plaintiff's mental conditions

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 9 of 17
JESSICA P. v. SOCIAL SECURITY
1

finding that the so-called B and C criteria applicable to those

2

were not met.

3

concluded that plaintiff retains the residual functional

4

capacity or RFC to perform light work as defined in the

5

regulations, except she can only perform simple routine tasks,

6

cannot do work that requires a high production rate pace, no --

7

make simple work-related decisions, and can interact with

8

supervisors, co-workers, or the public no more than

9

6

occasionally.

10

After surveying the record evidence, ALJ Eldred

Applying that RFC finding at step four, the ALJ

11

concluded that plaintiff is not capable of performing her past

12

relevant work and then proceeded to step five.

13

At step five, he found that if plaintiff could

14

perform a full range of light work, a finding of no disability

15

would be directed by the Medical-Vocational Guidelines set forth

16

in the Commissioner's regulations and specifically grid rules

17

202.21 and 202.14.

18

contracted the job base on which the grids are predicated, ALJ

19

Eldred sought the testimony of a vocational expert who concluded

20

and testified that there is work available in the national

21

economy that plaintiff is capable of performing citing as

22

representative positions mail clerk, marker II, and office

23

helper.

24

plaintiff was not disabled at the relevant times.

25

Because of the additional limitations that

The ALJ adopted that testimony and therefore found that

The Court's function in this case is limited to

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 10 of 17
JESSICA P. v. SOCIAL SECURITY
1

applying an extremely deferential standard and determining

2

whether correct legal principles were applied and the resulting

3

determination is supported by substantial evidence which is

4

defined as such relevant evidence as a reasonable mind would

5

find sufficient to support a conclusion.

6

Brault v. Social Security Administration Commissioner, 683 F.3d

7

443, Second Circuit, 2012, noted the deferential nature of that

8

substantial evidence standard finding it even more rigid than

9

the compelling evidence standard that we're familiar with and

The Second Circuit in

10

noted pertinently that under the standard, once an ALJ finds a

11

fact, the fact can be rejected by a court only if a reasonable

12

factfinder would have to conclude otherwise.

13

In this case, the plaintiff raises three central

14

arguments:

15

that her migraine headaches were not severe as defined in the

16

regulations; she challenges the residual functional capacity

17

finding as not supported by substantial evidence, focusing on

18

the exclusion of postural limitations primarily and mental

19

health limitations; and she challenges the Administrative Law

20

Judge's rejection of portions of medical opinions, arguing that

21

it represented a substitution of lay opinion for a competent

22

medical opinion.

23

She asserts it was error at step two to conclude

The first argument, of course, relates to a step two

24

argument.

The governing regulations provide that an impairment

25

or combination of impairments is not severe if it does not

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

7

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 11 of 17
JESSICA P. v. SOCIAL SECURITY

8

1

significantly limit claimant's physical or mental ability to do

2

basic work activities, 20 C.F.R. Section 404.1521, subsection A.

3

In subsection B, that regulation goes on to describe what is

4

meant by the phrase basic work activities, defining that term to

5

include the abilities and aptitudes necessary to do most jobs.

6

The Second Circuit -- I'm sorry, the second step requirement is,

7

as plaintiff argues, de minimis and intended only to screen out

8

the truly weakest of cases, Dixon v. Shalala, 54 F.3d 1019,

9

Second Circuit, 1995.

However, importantly, the mere presence

10

of a diagnosed impairment does not by itself mean that -- that

11

the step two threshold test has been met and does not

12

necessarily establish a condition as severe.

13

In this case, the Administrative Law Judge at page 16

14

rejected migraine headaches and specifically discussed why.

15

headaches are based solely on plaintiff's reports of seeking

16

medical marijuana, which, as I indicated previously, she was

17

decertified for.

18

treatment and what treatment there was, including an MRI that's

19

referenced in 2015, predate the onset date in this case.

20

was -- clearly the headaches have been noted in treatment notes

21

on occasion, but primarily in the history portion of those

22

notes -- those notes postdate the onset date of August 4, 2016.

23

The

There does not appear to be any other ongoing

It

As the Commissioner has argued, the plaintiff did not

24

allege headaches as a basis for her disability application.

25

does not appear to have any ongoing treatment and has not been,

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

She

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 12 of 17
JESSICA P. v. SOCIAL SECURITY

9

1

other than the medical marijuana, specifically prescribed

2

anything for her headaches.

3

her treatment providers have declined to provide her with pain

4

medication -- prescription pain medication, that is.

5

As she testified, the -- in fact,

It's plaintiff's burden at this and all stages, up

6

through step four, to establish not only a condition, but

7

resulting limitations.

8

in this instance with regard to the migraine headaches and

9

therefore do not find any error at step two.

10

I find that that burden was not carried

The other two arguments being raised are somewhat

11

interdependent and a challenge to the residual functional

12

capacity finding of the Administrative Law Judge.

13

course, represents the range of tasks that the claimant is

14

capable of performing notwithstanding his or her impairments, 20

15

C.F.R. Section 404.1545(a).

16

consideration of a claimant's physical abilities, mental

17

ability, symptomology, including pain, and other limitations

18

which would interfere with work activities on a regular and

19

continuing basis.

20

exertional and nonexertional impairments which flow from

21

plaintiff's conditions and have been proven by the plaintiff

22

whose burden it is.

23

An RFC, of

An RFC determination is informed by

And, of course, an RFC must address both

In this case, the residual functional capacity

24

finding, as I already indicated, restricts plaintiff to light

25

work with some additional limitations addressing her mental

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 13 of 17
JESSICA P. v. SOCIAL SECURITY

10

1

status.

The issue is -- the reaching limitation is the primary

2

issue.

3

examination conducted on January 23, 2018, that appears at 920

4

to 923 of the Administrative Transcript, indicated a moderate

5

limitation for bending, lifting, and reaching.

6

non-examining consultant C. Krist, based on that consultative

7

report, proposes an RFC for light work with postural

8

restrictions on March 9, 2013.

9

Administrative Transcript.

Dr. Lorensen who prepared a report of a consultive

10

The opinion of

That appears at page 953 of the

The Administrative Law Judge rejected the reaching

11

limitation and explained that rejection at page 19 of his

12

decision -- of the Administrative Transcript, I should say.

13

Krist, of course, is a non-examining physician.

14

opinion is inconsistent with treatment records and her own

15

examination of the plaintiff.

16

findings, she notes forward elevation and abduction of shoulders

17

100 degrees bilaterally with full range of motion of elbows,

18

forearms, and wrists bilaterally.

19

does not appear to be supported by any of the medical treatment

20

records.

21

range of motion in upper extremities.

22

find, carried her burden of demonstrating the existence of a

23

reaching limitation which would be potentially inconsistent with

24

the RFC and the resulting determination.

25

Dr.

Dr. Lorensen's

Under the musculoskeletal

The reaching limitation also

The -- most of the evidence of treatment show full
The claimant has not, I

Mentally, the plaintiff argues based upon the

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 14 of 17
JESSICA P. v. SOCIAL SECURITY

11

1

opinions of Dr. Littell who issued opinions of March 11, 2017,

2

that's at 1377, May 2, 2018, 1378, and April 3, 2019, 1379.

3

Those opinions are extremely difficult to read, conclusory in

4

nature, and primarily addressed plaintiff's ability to work,

5

which, of course, is a matter reserved to the Commissioner.

6

Those were rejected by the Administrative Law Judge, the

7

rejection was explained at page 21, and it was rejected based on

8

the fact that they're inconsistent with treatment records and

9

plaintiff's status -- medical status exams and inconsistent with

10

an earlier medical source statement that is somewhat more

11

comprehensive given by Dr. Littell on December 22, 2017.

12

appears at 901 through 903 of the Administrative Transcript.

13

That

The opinion of Dr. Littell given in December of 2017

14

finds marked and extreme limitations only with respect to the

15

ability to understand and remember, carry out, and make

16

judgments with regard to complex work-related decisions, which,

17

of course, is not inconsistent with the ability to perform

18

simple unskilled work or the RFC finding in this case.

19

opinion is also inconsistent with a Dr. Dennis Noia report of an

20

examination on January 23, 2018, that appears at 914 through 918

21

of the Administrative Transcript, which only finds marked

22

limitations in the ability to regulate emotion, control

23

behavior, and maintain wellbeing, which is something that would

24

appear to be consistent with or accommodated by the RFC,

25

including the limitation on interaction.

The

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 15 of 17
JESSICA P. v. SOCIAL SECURITY

12

1

The -- Dr. Littell's opinion is also inconsistent

2

with an opinion given by L. Blackwell, a Ph.D., on March 13,

3

2018, who is, of course, a non-examining state agency consultant

4

at page -- and that's Exhibit 2A.

5

plaintiff retains the ability to perform the basic mental

6

demands of unskilled work.

7

Exhibit 3A.

Dr. Blackwell opined that

The -- I think it's also repeated at

8

What essentially the plaintiff was asking the Court

9

to do is to reweigh the medical evidence, which, of course, is

10

something that is not in the Court's purview.

11

Administrative Law Judge to weigh any conflicts in the medical

12

opinions under Veino v. Barnhart, 312 F.3d 578, Second Circuit,

13

2002.

14

clinical findings and testing, and did not, in my view, run

15

afoul of the prohibition on interpreting the raw data and

16

substituting lay opinion for a competent medical opinion, Heaman

17

v. Berryhill, 765 F. App’x 498, Second Circuit, 2019.

18

It is for the

The ALJ did that and properly relied on treatment notes,

The plaintiff has admittedly pointed to some medical

19

evidence that is inconsistent with the ultimate determination

20

and RFC finding.

21

the focus is upon is whether substantial evidence, including

22

those treatment records, also support the RFC finding and

23

ultimate determination, and I find that they do and that

24

plaintiff is unable to show that no reasonable factfinder would

25

reach the result found by the Administrative Law Judge, Z.J.F, a

That alone, however, is not sufficient.

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

What

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 16 of 17
JESSICA P. v. SOCIAL SECURITY
1

minor, by D. Conkling v. Colvin, from the Northern District of

2

New York, civil action number 16-CV-1397, 2018 WL 1115516, and

3

it is a decision from February 27, 2018.

4

So in conclusion, I find that correct legal

5

principles were applied and substantial evidence does support

6

the ultimate determination reached and therefore will grant

7

judgment on the pleadings to the defendant and order dismissal

8

of plaintiff's complaint.

9

Thank you again.

10

I hope that you both stay safe in

this difficult environment.

11

MS. COLLINS:

Thank you, your Honor.

12

MS. VANEGAS:

Thank you, your Honor.

13

(Time noted:

11:43 a.m.)

14
15
16
17
18
19
20
21
22
23
24
25

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

13

Case 5:20-cv-00758-DEP Document 21 Filed 01/11/22 Page 17 of 17
14
1
2
3
4

CERTIFICATE OF OFFICIAL REPORTER

5
6
7

I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR,

8

NYRCR, Official U.S. Court Reporter, in and for the United

9

States District Court for the Northern District of New York, DO

10

HEREBY CERTIFY that pursuant to Section 753, Title 28, United

11

States Code, that the foregoing is a true and correct transcript

12

of the stenographically reported proceedings held in the

13

above-entitled matter and that the transcript page format is in

14

conformance with the regulations of the Judicial Conference of

15

the United States.

16
17

Dated this 10th day of January, 2022.

18
19

s/ Hannah F. Cavanaugh______________________

20

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR

21

Official U.S. Court Reporter

22
23
24
25