Lovely v. Commissioner of Social Security

Filing 16

ORDER: 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 Soc ial 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. Signed by Magistrate Judge David E. Peebles on May 9, 2022. (gmd, )

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
JONATHON L.,
v.

Plaintiff,

Civil Action No.
8:20-CV-1280 (DEP)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
LAW OFFICES OF STEVEN R.
DOLSON
126 North Salina Street, Suite 3B
Syracuse, NY 13202

GREGORY P. FAIR, ESQ.
STEVEN R. DOLSON, ESQ.

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

DANIEL STICE TARABELLI, ESQ.

DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
ORDER
Currently pending before the court in this action, in which plaintiff

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 2 of 19

seeks judicial review of an adverse administrative determination by the
Commissioner of Social Security (“Commissioner”), pursuant to 42 U.S.C.
' 405(g), are cross-motions for judgment on the pleadings. 1 Oral
argument was conducted in connection with those motions on April 14,
2022, during a telephone conference held on the record. I issued a bench
decision on April 15, 2022, 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:
1)

Plaintiff=s motion for judgment on the pleadings is GRANTED.

2)

The Commissioner=s determination that plaintiff was not

disabled at the relevant times, and thus is not entitled to benefits under the
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 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 3 of 19

Social Security Act, is VACATED.
3)

The matter is hereby REMANDED to the Commissioner,

without a directed finding of disability, for further proceedings consistent
with this determination.
4)

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.

Dated:

May 9, 2022
Syracuse, NY

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Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 4 of 19

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
JONATHON L.,
Plaintiff,
vs.

8:20-CV-1280

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------------------x
Transcript of a Decision held during a
Telephone Conference on April 15, 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:

DOLSON LAW OFFICE
Attorneys at Law
126 N. Salina Street, Suite 3B
Syracuse, New York 13202
BY: GREGORY P. FAIR, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
J.F.K. Federal Building
Room 625
Boston, Massachusetts 02203
BY: DANIEL STICE TARABELLI, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
[phone]

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 5 of 19

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(The Court and all counsel present by

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telephone, 12:00 p.m.)
THE CLERK:

We're on the record in the case of

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Jonathon L. versus Commissioner of Social Security, Case

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Number 8:20-CV-1280.

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appearances for the record starting with plaintiff.

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MR. FAIR:

Counsel, can you please state your

Yep, good afternoon I think at this

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point, Gregory Fair from the law offices of Steven Dolson on

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behalf of the plaintiff.

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MR. TARABELLI:

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Dan Tarabelli for the Commissioner.

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THE COURT:

Good afternoon, your Honor, this is

Good afternoon, Counsel.

Let me set

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the stage by saying that I heard oral argument in this case

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yesterday.

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argument that I thought warranted me to take a close look at

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the case and my initial impression.

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ready to render a decision in this case.

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There were some matters raised during the

Having done that, I'm

The plaintiff has commenced this action pursuant to

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42 United States Code Section 405(g) to challenge an adverse

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determination by the Acting Commissioner finding that he was

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not disabled at the relevant times and therefore ineligible

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for the benefits sought by him.

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The background is as follows:

Plaintiff was born

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in October of 1969 and is currently 53 years of age.

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49 years old on the alleged onset date of September 27, 2018.

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

He was

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 6 of 19

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Plaintiff is married and has a son 15 years of age and a

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daughter 19 years of age.

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November 2019.

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his wife and children.

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approximately 330 pounds.

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education and did secure a GED.

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regular classes.

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worked primarily in two positions, or for two companies, I

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should say.

Those ages are recorded as of

Plaintiff lives in Ogdensburg, New York with
Plaintiff is 6 feet tall and weighs
Plaintiff has an 11th grade
While in school he was in

Plaintiff is right-handed.

Plaintiff

Between January of 2006 and January 2008, he

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worked as a maintenance worker and a cleaner for Walmart.

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Between January 2008 and September 2018, he worked for

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Loomis, initially as a messenger or courier, and later, in

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the later years as a driver.

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September 2018.

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why.

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position because of downsizing.

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in the opinion stated that it was because he was not able to

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meet the lifting requirements.

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reference to that in particular, and that would not make

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sense because as a driver, he testified that he was not

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required to lift.

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He did say that he is not able to perform the job due to his

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conditions, that's at 202, and it appears that he was

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assuming that he would have to transfer to another location

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where he would be required to lift as a messenger or courier

He last worked in

The evidence is somewhat equivocal as to

It appears at pages 51, 334, and 366 that he lost his
The administrative law judge

I didn't necessarily find any

That was at page 21, the ALJ's reference.

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 7 of 19

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in any event.

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that the messenger position got to be too much, and at 51, he

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stated that just driving would have required lifting at a

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different branch.

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it's due to his conditions that he lost his position.

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Plaintiff suffers -- and at page 48 he said

So I guess we'll credit his statement that

Plaintiff physically suffers from degenerative disk

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disease of the lumbar region, also has cervical issues, he

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suffers from hypertension, obesity, tinnitus, psoriasis,

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diabetes, and left leg issues.

In 1987, he underwent

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essentially two surgeries that were a day or two apart.

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was an L4-L5 laminectomy with multi-level rod and the second

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was a multi-level rod fixation due to scoliosis.

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one pain injection in his lower back but declined to take

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more pain injections due to the cost.

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with several sources including Dr. Aathirayen Thiagarajah one

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time in December of 2018 for pain.

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Dr. Brian Kerrigan since January 2013, treated with

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Dr. Manasvi Jaitly from January 2017 until May of 2017.

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treated briefly with SOS, Syracuse Orthopedics, in 2018, and

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at various times with Claxton Hepburn Medical Center for pain

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management and in their emergency department.

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One

He has had

Plaintiff has treated

He has treated with

He

Plaintiff's activities of daily living include the

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ability to shower, dress, and groom, prepare some meals, shop

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occasionally, he has trouble with laundry and cleaning.

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watches television.

He

Among the medications that have been

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 8 of 19

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prescribed for the plaintiff are gabapentin, Duloxetine, and

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Celebrex.

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Procedurally, plaintiff applied for Title II

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benefits on December 26, 2018 alleging an onset date of

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September 27, 2018.

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disability based on lumbar spine impairment, cervical spine

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impairment, left side numbness, balance impairment,

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hypertension, and morbid obesity.

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by ALJ Jude Mulvey with a vocational expert on November 12,

In his function report he claimed

The hearing was conducted

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2019.

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December 20, 2019.

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Commissioner on August 21, 2020 when the Social Security

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Administration Appeals Council denied plaintiff's application

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for review.

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and is timely.

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ALJ Mulvey issued an unfavorable decision on
That became a final determination of the

This action was commenced on October 16, 2020,

In her decision, ALJ Mulvey applied the familiar

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five-step sequential test for determining disability.

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first noted that plaintiff's last date of insured status will

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be December 31, 2022.

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She

At step one, she noted that plaintiff had not

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engaged in substantial gainful activity since his alleged

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onset date.

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At step two, she concluded that plaintiff does

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suffer from severe impairments that impose more than minimal

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limitations on his ability to perform basic work functions,

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 9 of 19

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including diastolic dysfunction, left ventricular

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hypertrophy, degenerative disk disease of the lumbar spine,

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hypertension, and obesity.

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At step three, she concludes that plaintiff's

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conditions do not meet or medically equal any of the listed

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presumptively disabling conditions in the Commissioner's

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regulations, specifically including Listings 1.04 and 4.04.

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She also referenced Social Security Ruling 19-2p and

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indicated that she had considered the impact of plaintiff's

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obesity on his ability to perform work functions.

Surveying

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the medical and other evidence, ALJ Mulvey next concluded

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that notwithstanding his impairments, plaintiff retains the

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residual functional capacity to perform light work except

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that he can frequently reach, stoop, and squat.

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Applying that RFC, the ALJ next determined at step

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four, pursuant to the testimony of a vocational expert, that

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plaintiff is unable to perform his past relevant work.

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Proceeding to step five, ALJ Mulvey first noted

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that if plaintiff could perform a full range of light work,

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the Medical-Vocational Guidelines and the Commissioner's

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regulations, or so-called Grids, would direct a finding of no

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disability pursuant to Grid Rules 202.18 and 202.11.

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on the testimony of the vocational expert and considering the

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additional limitations, exertional limitations set out in the

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RFC, that would shrink the job base upon which the Grids are

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

Based

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 10 of 19

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predicated.

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in the national economy that plaintiff is capable of

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performing, citing as representative examples marker,

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cafeteria attendant, and sales attendant.

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The ALJ concluded that there is available work

As you know, the court's function in this case is

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to determine whether correct legal principles were applied

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and the resulting determination is supported by substantial

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evidence, which is defined as such relevant evidence as a

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reasonable mind would conclude sufficient to support a

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conclusion.

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The plaintiff's contentions in this matter center

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upon the residual functional capacity finding, the argument

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being that it's not supported and that the administrative law

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judge improperly evaluated the medical opinions of record and

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substituted her lay opinion for those medical opinions.

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determination of disability requires in the first instance a

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determination of a plaintiff's residual functional capacity

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which represents finding of a range of tasks that the

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plaintiff is capable of performing notwithstanding his

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impairments.

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The

Ordinarily, an RFC represents a claimant's maximum

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ability to perform sustained work activities in an ordinary

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setting on a regular and continuing basis, meaning eight

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hours a day for five days a week or an equivalent schedule.

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An RFC determination is informed by consideration of all of

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 11 of 19

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the relevant medical and other evidence.

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404.1545(a), and Tankisi v. Commissioner of Social Security,

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521 F.App'x 29 at 33, Second Circuit, 2013.

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case was already recited and contains just the limitation to

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light work and frequent reaching, stooping, and squatting.

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20 C.F.R. Section

The RFC in this

There are two medical opinions in the record that

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speak to plaintiff's physical abilities.

Both were rejected

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by the administrative law judge.

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opinions in the record in this case is governed by the new

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regulations that took effect for cases filed after March of

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2017.

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give any specific evidentiary weight, including controlling

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weight, to any medical opinions or prior administrative

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medical findings, including those from the claimant's medical

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sources.

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particularly supportability and consistency, when evaluating

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medical opinions.

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also may, but is not required, to explain how he or she

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considered the other relevant factors as appropriate; those

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factors being the source's relationship to the claimant,

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including the length of the treatment relationship, the

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frequency of examinations, the purpose of the treating

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relationship, the extent of the treating relationship and

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whether it was merely an examining relationship, the

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specialization, if any, of the source, and other factors that

The analysis of medical

Under the new regulations, an ALJ does not defer or

Instead, the ALJ must consider relevant factors,

20 C.F.R. Section 404.1520c(a).

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

The ALJ

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 12 of 19

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tend to support or contradict the opinion.
Speaking to the two primary factors, the

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regulations define supportability as follows:

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relevant the objective medical evidence and supporting

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explanations presented by a medical source are to support his

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or her medical opinions or prior administrative medical

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findings, the more persuasive the medical opinions or prior

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administrative medical findings will be.

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The more

The regulations define consistency as follows:

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more consistent a medical opinion or prior administrative

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medical finding is with the evidence from other medical

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sources and nonmedical sources in the claim, the more

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persuasive the medical opinion or prior administrative

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The

medical finding will be.

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The first opinion that was spoken to in the ALJ's

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decision is from Dr. Elke Lorensen.

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February 26, 2019 and included in the record at pages 366

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through 369 with a couple attached exhibits.

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Dr. Lorensen's examination showed a limited lumbar range of

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motion upon examination and Dr. Lorensen opined in her

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medical source statement, no gross limitation sitting,

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standing, walking, or handling small objects with the hands,

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moderate limitations with bending, lifting, reaching, pushing

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and pulling with the arms and squatting.

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It was rendered on

In the opinion,

That's at page 369.

The administrative law judge addressed

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 13 of 19

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Dr. Lorensen's opinion on page 22, found it persuasive to the

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extent that it found no limitations in sitting, standing,

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walking, and handling, and, however, found the moderate

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limitations to be vague and do not assess what the claimant

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can do despite his impairments.

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The Commissioner concedes that it was error to

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reject it strictly on the basis of vagueness but argues that

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it was harmless error.

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limitation was found is deficient because it doesn't discuss

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supportability and consistency and point to specifics in the

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record as required by the new regulations.

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Commissioner of Social Security, 2021 WL 706645 from the

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Northern District of New York, 2021.

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The other areas in which no

Raymond M. v.

Here, there are excerpts cited in support of the

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finding of persuasiveness of the no-limitation portion of

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Dr. Lorensen's opinions, and those simply don't support the

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finding.

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plaintiff appears uncomfortable, reports 10 out of 10 pain;

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noting part of the hardware from the surgery has dislodged at

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303; mild cervical tenderness, moderate lumbar back pain with

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painful range of motion, 304.

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normal gait but moderate limited lumbar range of motion and

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mild tenderness, 312.

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of motion, moderate tenderness, diminished leg sensation,

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316.

3F at page 4, for example, that's page 301,

4F at 8, or is it 3?

States

4F at 17, moderate limitation of range

5F at 4, reduced left hip range of motion, reduced

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 14 of 19

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lumbar sensation, limited cervical spine range of motion with

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tenderness, full lumbar range of motion but tenderness

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present, 322.

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motion, that's at 335.

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cervical and lumbar, decreased left leg sensation, 368.

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at 11, increasing pain medications because previous dose is

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not helping, 372.

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motion, full lumbar range of motion but tenderness and

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limited cervical spine range of motion with tenderness, 376

7F at 7, antalgic gait and decreased range of
9F at 13, reduced range of motion,
10F

10F at 5, reduced left hip range of

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to 377.

13F at 8, reduced left hip range of motion, reduced

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left leg sensation, limited cervical spine range of motion,

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full lumbar range of motion with tenderness, 396.

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same as the previous, that's at 399 to 400.

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cursory physical examination but did note limited range of

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motion in the back, 419.

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motion, that's at 422.

13F at 11,

14F at 2, very

4F at 5, decreased back range of

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In sum, although the ALJ states that plaintiff has

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normal lumbar range of motion on some exams, most of them in

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fact show limited or decreased range of motion.

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general normal gait and strength notations ignore all of the

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consistent positive findings in other aspects, range of

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motion, sensation loss, hip range of motion issues.

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discusses these in the overall summary but does not explain

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how these findings are inconsistent with the opinions of

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Dr. Lorensen and the state agency opinion.

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

And the

The ALJ

So I do not find

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 15 of 19

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that the finding of persuasiveness of Dr. Lorensen's opinion

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regarding no limitations is adequately explained and

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supported by substantial evidence.

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The question is whether this error is harmless.

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The residual functional capacity specifies frequent reaching.

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According to the Dictionary of Occupational Titles, the three

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jobs identified do specify frequent reaching.

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equivocal as to whether, if the hypothetical on which the

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vocational expert based his opinion is changed to occasional

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reaching, the three jobs would still be available, at page 78

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of the administrative transcript.

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vocational expert is saying yes, but it's not sure.

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The record is

It looks like the

In any event, ordinarily, I would say that the

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error was harmless because a moderate limitation in reaching

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is not inconsistent with light work.

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Commissioner of Social Security, 2021 WL 2587249, from the

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Western District of New York, it is dated June 24, 2021, and

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Carl D. v. Commissioner of Social Security, 2019 WL 1115704

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from the Northern District of New York, March 11th, 2019.

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Monserrate B. v.

And I have to say that the second opinion that was

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addressed by the administrative law judge comes from Dr. R.

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Reynolds and it was affirmed, so to speak, by Dr. S.

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Siddiqui.

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2019, appears at 83 to 93 of the administrative transcript.

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Dr. Siddiqui on April 30, 2019 at page 100 of the

Dr. Reynolds' opinion is rendered on March 27,

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 16 of 19

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administrative transcript states, "I have reviewed all the

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physical evidence in file and the physical assessment of

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March 27, 2019 per Dr. R. Reynolds is affirmed as written."

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In that RFC finding, Dr. Reynolds concludes that plaintiff is

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only capable of lifting 10 pounds occasionally and frequently

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less than 10 pounds, can sit for two hours, walk -- I'm

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sorry, walk and stand for two hours and sit about six hours

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in an eight-hour workday, only occasional stooping and only

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occasional crouching.

That's an RFC -- it's an opinion that

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is consistent more with sedentary work and not with light

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work.

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The question again is, is that supported by

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substantial evidence, the finding that those two opinions are

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not persuasive.

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it persuasive.

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reference normal gait and normal strength in bilateral lower

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and upper extremities, several examinations have noted lumbar

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spine range of motion normal, normal spine range of motion

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and then cited the same excerpts that I already referenced,

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also confusingly states, "Finally, the claimant has received

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no ongoing treatment for his cardiac impairment and there's

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no indication of complications such as end organ disease from

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his hypertension."

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inconsistent with the record for the reasons I've already

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stated.

And for much the same reason, I don't find
All the administrative law judge did was

As I indicated before, that is

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 17 of 19

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Again, the question is, is that harmless error?

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The opinions of Dr. Reynolds and Dr. Siddiqui are consistent

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with sedentary work.

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there are jobs available in the national economy and cited

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three that could be performed with a sedentary RFC at 76 to

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78, and even with occasional reaching.

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if you were to change the hypothetical to occasional stooping

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rather than frequent, there would be no impact on the jobs

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identified.

The vocational expert did say that

That's at page 75.

The VE also testified

However, as plaintiff's

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counsel pointed out, the errors are not necessarily harmless

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in that under the Medical-Vocational Guidelines, once the

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plaintiff turned 50, he would, pursuant to the Grids, if he

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were capable of performing only sedentary work, would be

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deemed disabled and so he could potentially be entitled to at

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least a partially favorable determination.

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So for that reason, I do not find harmless error.

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I do find error, and I am going to order that the

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Commissioner's determination be vacated and the matter be

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remanded for further consideration.

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on the pleadings to the plaintiff and make those

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determinations.

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So I will grant judgment

Thank you both for excellent presentations

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yesterday, and whatever holiday you may be celebrating this

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weekend, I wish you a happy holiday.

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MR. FAIR:

Thank you.

Thank you, your Honor.

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 18 of 19

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MR. TARABELLI:

Thank you, your Honor.

(Proceedings Adjourned, 12:26 p.m.)

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]

Case 8:20-cv-01280-DEP Document 16 Filed 05/09/22 Page 19 of 19

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CERTIFICATE OF OFFICIAL REPORTER

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

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Official Realtime Court Reporter, in and for the

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United States District Court for the Northern

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District of New York, DO HEREBY CERTIFY that

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pursuant to Section 753, Title 28, United States

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Code, that the foregoing is a true and correct

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transcript of the stenographically reported

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proceedings held in the above-entitled matter and

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that the transcript page format is in conformance

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with the regulations of the Judicial Conference of

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the United States.

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Dated this 15th day of April, 2022.

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/S/ JODI L. HIBBARD

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

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]