DAVID E. PEEBLES, Magistrate Judge.
Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Acting Commissioner, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), are cross-motions for judgment on the pleadings.
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 Acting Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is VACATED.
(3) The matter is hereby REMANDED to the Acting Commissioner, with a directed finding of disability, for the purpose of calculating benefits owing to the plaintiff.
(4) The clerk is respectfully directed to enter judgment, based upon this determination, remanding the matter to the Acting Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case.
Transcript of a
THE COURT: All right. I have before me a request for judicial review of an adverse determination by the Acting Commissioner pursuant to 42 United States Code Sections 405(g) and 1383(c) (3).
The background is as follows: Plaintiff was born in April of 1988, is currently 29 years old. She is 5'5" tall and, at least in June of 2016, weighed 243 pounds. She has been characterized as being obese.
She has a ninth grade education and no GED. While in school, she attended regular classes. She was generally a good student, but dropped out at age 14 and moved in with her boyfriend and his mother.
It's unclear where she currently lives at the time. At one point, she lived in Binghamton, but she may have moved out of state to North Carolina.
Plaintiff last worked for one year in a Dell call center either one year or two years. At one point in the administrative transcript it's listed as June 2007 to February 2008. She was fired for absenteeism. She has also worked in a fast food setting at a Kentucky Fried Chicken and in another call center in Florida.
Plaintiff suffers from both physical and mental impairments. She suffers back pain and has been treated by Dr. Sae — S-A-E-J-O-U-N, Park. She was also referred to an orthopedic specialist, Dr. Kamlesh, K-A-M-L-E-S-H, Desai, D-E-S-A-I. She's been diagnosed as having lumbar scoliosis with mild pelvic obliquity, but her disc spacing appears to be maintained and there's no evidence of subluxation.
She underwent MRI testing back in 2007 that showed mild facet arthropathy and synovitis at L3-L4 and L5-S1, but with no compressive discopathy. The plaintiff has been diagnosed, at least at one point by her treating physician, Dr. Park, as having fibromyalgia. That's at 835 in the administrative transcript.
Mentally, plaintiff has been seen and treated by Dr. Park, as well as by the Broome County Mental Health professionals where she has seen Dr. M-A-H-F-U-Z-U-R, Rahman, R-A-H-M-A-N, and Licensed Clinical Social Worker or LCSW Melanie Hertzog. She was also evaluated psychologically in December of 2008 by Dr. Robert Russell.
She's been variously diagnosed as having dysthymic disorder, schizoaffective disorder of a bipolar type, and rule out PTSD. She's been assessed — global assessment of functioning or GAF scores are between 50 and 60 at various times.
Plaintiff also testified and claims that she experiences seizures, although she has not pressed the seizures as a basis for a finding of disability.
I note that, as an aside note, that a review of plaintiff's mental health treatment and physical treatment records reveal a pattern of no shows or call-ins, including at 493 to 495 with regard to her mental health record and Exhibit 30F, Dr. Park's records.
Plaintiff has variously been prescribed Ambien for sleep, Tramadol, Seroquel, Soma, a nose spray, Claritin, Lyrica, Suboxone, Neurontin, and Klonopin. She smokes between a half and one and a half packs of cigarettes a day. That's at 447, 370, and 810 of the administrative transcript.
In terms of daily activities, she's able to dress and bathe and groom herself. She cooks, cleans, does some laundry, although needs assistance with lifting. She can shop with assistance. Watches television, listens to the radio, reads, and she enjoys drawing and painting.
As Mr. Gorton alluded to, this case has had a tortured procedural history. Plaintiff first applied for benefits in July of 2009 for disability benefits and SSI payments alleging an onset date of February 15, 2008.
A hearing was conducted by Administrative Law Judge Bruce Fein, F-E-I-N, on December 1, 2010. ALJ Fein issued an unfavorable decision on March 10, 2011. That determination was vacated on July 30, 2012, by the Social Security Administration Appeals Council and the matter was remanded with specific instructions, including the requirement to call a vocational expert to testify.
A second hearing was conducted on April 5, 2013, by ALJ Fein. A second decision, also unfavorable, was issued on August 29, 2013. On December 17, 2014, the Appeals Council denied plaintiff's request for a review making that a final determination of the agency.
On January 28, 2015, plaintiff filed an action in this court, civil action number 15-CV-104. After full briefing and argument, a decision was issued vacating the determination or remanding the matter for further consideration. That was on October 13, 2015.
The — on February 23, 2016, the Appeals Council directed that the matter be reassigned to a new Administrative Law Judge. Based upon the Court's remand, a hearing was conducted by Administrative Law Judge Elizabeth Koennecke, K-O-E-N-N-E-C-K-E, on October 31, 2016. ALJ Koennecke issued a decision on December 8, 2016. This action was then commenced. In her decision, ALJ Koennecke applied the familiar five-step sequential test for determining disability.
At step one, she found that plaintiff had not engaged in substantial gainful activity since her alleged onset date.
At step two, she concluded that plaintiff suffers from severe conditions, including a mental impairment and a back impairment and obesity.
At step three, she concluded that plaintiff's conditions did not meet or medically equal any of the listed presumptively disabling conditions. She considered listings 1.04 and 12.04.
After surveying the available medical records, ALJ Koennecke concluded that plaintiff retains the residual functional capacity or RFC to lift and/or carry ten pounds occasionally and less than ten pounds frequently for six hours in an eight-hour workday, stand and/or walk for six hours in an eight-hour workday, and occasionally perform all postural activities, basically sedentary work with additional limitations, addressing primarily her mental issues. And that's at page 580 of the administrative transcript.
At page — at step four, ALJ Koennecke concluded plaintiff cannot perform her past relevant work based on that RFC finding. After noting that if the medical vocational guidelines or the grids were applied, plaintiff's condition would not be disabling applying Rule 201.24, the ALJ, relying on the vocational expert's testimony, concluded the plaintiff is able to perform the functions of an order clerk, food and beverage addresser, and waxer, and that there were sufficient numbers of those jobs in the national economy to be significant and, therefore, found that plaintiff was not disabled at the relevant times.
As you know, my task is limited to determining whether correct legal principals were applied and the determination is supported by substantial evidence. After I reviewed the matter extremely carefully, I am left with a firm belief that the process followed lacked fundamental fairness, that correct legal principals were not applied, and substantial evidence does not support the ALJ's findings.
I was very disappointed when I compared the decision of ALJ Koennecke, who I have a great deal of respect for, to the prior decisions of ALJ Fein, and concluded that and found that literally large blocks of the — of the prior decisions were lifted and copied exactly. It didn't convince me either substantively or otherwise that ALJ Koennecke conducted the kind of de novo searching/review that was contemplated by the Court and by the Appeals Council.
The vast majority of page 579 is copied from ALJ Fein's decision. 580, about half of the lines are directly from ALJ Fein's decision. 581, about two-thirds is lifted from ALJ Fein's decision. 582, about a third is copied. 583 is almost entirely copied and is not accurate, including the second and third paragraphs are not accurate. 584 is almost completely, with one small paragraph, copied from the prior decision. And 585, one paragraph. 586, about half. 587 is almost totally copied from the decision.
You know, mentally I tend to agree, as I did previously, that the mental component of the RFC is supported by Dr. Noia and Dr. Nobel. The only question would be the off task and absenteeism provisions, and we'll come back to that.
And physically, it's clear ALJ Koennecke recognized that it was improper to rely on the opinions of Dr. Werner, who is an OB/GYN, as ALJ Fein had, but she rejected essentially all of the other medical evidence in the record, including Dr. Park's medical source opinions, Dr. Magurno, Dr. Wiesner, and does not really offer any medical support other than her opinions concerning plaintiff's physical RFC.
The rejection of Dr. Park is not — it's not supported. It's wrong to say that Dr. Park's opinions are based solely on plaintiff's subjective complaints. There are objective indications that she suffers from back issues and she has had — there's clinical evidence that supports that, treatment notes support that, there's an MRI, as I indicated previously, that supports it.
And even if his opinion was rejected, ALJ Koennecke did not discuss the regulatory factors that are required in order to determine how much weight, if it's not given controlling weight, should be given to Dr. Park. There is no discussion whatsoever of those regulatory factors under 20 CFR Section 404.1527, including whether he examined the plaintiff, whether he's an ongoing treater, whether his opinions are supported by clinical findings, and whether they're consistent with others. And, of course, they are consistent with Dr. Magurno and Dr. Wiesner.
It's prejudicial because, if no other reason, the limitations on sitting are inconsistent with the RFC and sedentary work, as well as the attendance and off task opinions.
Dr. Magurno is also improperly discounted. Dr. Magurno is someone who has programatic expertise, as the Commissioner often argues, when trying to support the opinion of a consultative examiner. It's supported by his objective exam findings, and I reviewed those carefully.
I think the opinions of Dr. Wiesner were also improperly discounted.
I know that Mr. Gorton has raised concerns, and I have concerns as well, about making statements like were contained in ALJ Koennecke's decision where a — an opinion is discounted based on experience in other cases.
The matter was confronted by this court in Stevens versus Commissioner of Social Security found at 2016 WL 3199515 from June 18, 2016. The Court, in that case, observed that few courts — the few courts that had addressed this particular argument were split, either considering such commentary permissible so long as it is not the sole factor for discounting the medical opinion or finding such comments improper and requiring a remand before a different ALJ.
The Eleventh Circuit addressed it in Miles versus Chater, 84 F.3d 1397, it's a 1996 decision, and held it inappropriate for an ALJ to discount a medical report on the basis that certain physicians almost invariably conclude that the person being examined is totally disabled because such an observation without supporting evidence indicates potential bias.
The Third Circuit took a little bit more subdued approach in Miller versus Commissioner, 172 F.3d 303, and observed it would be erroneous for an ALJ to summarily reject every report submitted by a certain doctor of a law firm simply because the doctor reaches the same conclusion in every case, but added that an ALJ should be afforded substantial discretion to give little way to a medical report that was carbon copied from previous litigation without taking into account the specific applicant's condition.
I — so I don't hinge my decision necessarily on the impropriety of rejecting Dr. Wiesner's decision and making the additional comment that in a lot of Mr. Gorton's cases, Dr. Wiesner opines more — with a more limited physical RFC than supported by his objective findings. I do find that ALJ Koennecke did at least discuss a reason for rejecting it in this specific case.
The real issue here is attendance and off task. And virtually everyone that has offered an opinion on this issue has said that plaintiff is likely to be absent in an amount of time that would be inconsistent with employment and would be off task similarly. Dr. Park at 443 and again 847 and 848 said plaintiff would be absent more than three times per month and off task more than 33 percent of the time.
Dr. Wiesner similarly at 501, 502, plaintiff will be absent more than three times per month and off task 20 to 30 percent of the time.
LCSW Hertzog indicated at 471, plaintiff would be absent more than three times per month.
Dr. Russell, at 350, noted that the plaintiff — plaintiff's depression might interfere and had a slight potential to interfere with her attendance.
And I note that plaintiff was fired from her prior position for absenteeism. The vocational expert testified that the — an employer would tolerate no more than one absence per month at 702 and no more than ten percent off task at 703.
The — in my view, the evidence is clear and overwhelming that plaintiff would be likely absent at least three times per month and off task at least 20 to 30 percent.
The — and I agree with plaintiff, vocational expert — I'm sorry, the Commissioner bears the burden at step five, and although I understand defendant's argument, the Commissioner would like to interpret the vocational expert's testimony as saying these are only examples of positions that plaintiff is capable of performing, but that's not how the testimony came through. I read it very carefully over and over.
It's very clear to me these are the three positions that he believes she can perform, a total of 8,499 jobs nationally with no indication regionally. So as Mr. Gorton argues, even if that amount in and of itself is significant, even a little erosion of that amount is significant when it comes to whether the Commissioner carried her burden.
The — it's true that the Social Security Act and the regulations themselves, as well as the Social Security rulings, do not provide a definition for a significant number of jobs. In this circuit, courts have generally refused to draw bright-lines/standards for the minimum number of jobs required to show that work exists in significant numbers. And although it's fairly minimal, it's not — it's not zero.
And I tend to agree that 10,000 seems to be a cutoff that some courts have used. In Hanson versus Commissioner of Social Security, this court — that's at 2016 WL 3960486 — Northern District of New York, 2016, held that numbers varying from 9,000 upward can constitute significant.
There are cases that — that go both ways when you get into the 4,000, 5,000 range. 4,000 or 5,000 is clearly not significant. That's Leonard versus Heckler 582 F.Supp. 389, Middle District of Pennsylvania, 1983. I think there's a good argument to be made that 8,499 in and of itself is not significant, particularly since there is no indication of regional availability.
But in any event, because of the further erosion due to potential absenteeism and being off task, I think that the Commissioner has not carried her burden at step five to demonstrate the existence of work to be performed in the economy.
As I indicated, I think I have a firm belief that error's been committed, that the plaintiff — overwhelming evidence suggests that she is disabled, so I'm going to reverse the Commissioner's determination and direct the matter be remanded with a directed finding of disability solely for purposes of calculating benefits.
Thank you both for excellent presentations and an interesting case. Have a good afternoon.
MR. GORTON: Thank you, your Honor.
MR. NORWOOD: Good afternoon.
I, HANNAH F. CAVANAUGH, Official Court Reporter, in and for the United States District Court for the Northern District of New York, DO HEREBY CERTIFY that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.
