DAVID E. PEEBLES, Chief 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 of Social Security, pursuant to 42 U.S.C. §' 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.
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 Acting 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. NORTHERN DISTRICT OF NEW YORK
THE COURT: I have before me an application for judicial review of an adverse determination by the Acting Commissioner of Social Security pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3). The background is as follows.
Plaintiff was born in April of 1972 and is currently 47 years of age. He was 42 years old at the alleged onset date of July 26, 2014. Plaintiff is divorced. He lives alone in an apartment in Greene, New York, although he has two children who at the time of the hearing in this matter were aged 12 and 14 and he has 50 percent custody of those children.
Plaintiff has a high school degree, as well as an Associate's Degree and a Bachelor's Degree. While in school he was in regular classes. Plaintiff is right-hand dominant but does use his left hand more currently due to the stroke and its effect on his right extremities.
Plaintiff drives. He is 5-foot 6-inches in height and weighs 157 pounds. Plaintiff has worked as an accountant over the years for various employers since 2000, including International Paper, Amphenol Aerospace, and The Raymond Corporation.
Plaintiff had a stroke in July of 2014. He was hospitalized until he was discharged on July 31, 2014. He then underwent rehabilitation in August of 2014 and was discharged on August 22, 2014. Plaintiff has several health care providers, including Dr. Martin Masarech, who he sees every six months; Dr. Yahia Lodi, a neurologist, who he has seen up until August 17, 2016, he underwent MRI testing every six months. He has also seen Dr. Jin Kim for physical therapy and rehabilitation from July 2014 to April 2015.
The plaintiff was observed by health care providers to have a hemiplegic gait pattern. Also a slight foot drop was observed by Dr. Jenouri, at page 432. Plaintiff does not use a cane or any other assistive device to ambulate, however. There is no indication of any mental health treatment or hospitalization of the plaintiff. Plaintiff smokes one half pack of cigarettes per day.
In terms of daily activities of daily living, those include the ability to dress and take care of his personal hygiene; he cleans; he can cook simple meals; he does laundry; watches television; he fishes; he shops; does some socialization; and takes care of his children. The activities of daily living are described at pages 56, 432 and 536 of the Administrative Transcript.
Procedurally, plaintiff applied for Title II and Title XVI benefits protectively on October 9, 2014. In his application he alleged that he was limited and unable to perform work functions based upon hypertension, a brain aneurysm, two strokes, right side paralysis, speech impediment, right hand impediment, right arm impediment, left middle cerebral artery stroke, right upper extremity pain, right lower extremity weakness, forgetfulness, short term memory deficits and hypertension. That's at page 219.
The original onset date was alleged to be March 31, 2014. The hearing was conducted on March 9, 2017 by Administrative Law Judge John Ramos. At that time the onset date was amended to July 26, 2014, the date on which the plaintiff sustained his stroke. On August 10, 2017 ALJ Ramos issued an unfavorable decision. The decision became a final determination of the Agency on July 18, 2018 when the Social Security Administration Appeals Council denied plaintiff's request for review.
In his decision ALJ Ramos applied the familiar five-step sequential test for determining disability. After determining first that plaintiff was insured through December 31, 2019, he concluded at step one that plaintiff had not engaged in substantial gainful activity since his amended alleged onset date of July 26, 2014.
At step two ALJ Ramos concluded that plaintiff suffers from severe impairments that impose at least minimal limitations on the ability to perform work-related functions, including the history of stroke with subsequent gait, speech, right-sided motor and neurocognitive impairments.
At step three the Administrative Law Judge concluded that plaintiff's impairments did not meet or medically equal any of the listed presumptively disabling impairments, including specifically consideration of listings 11.04, 12.02, and 12.05.
The Administrative Law Judge next surveyed the available evidence and concluded that, notwithstanding these impairments, plaintiff retains the residual functional capacity, or RFC, to perform sedentary work, and went on to state the following additional limitations. He can understand oral and simple written instructions and communicate simple information; he retains the ability to understand and follow simple instructions and directions, perform simple tasks with supervision and independently, and maintain attention/concentration for simple tasks; he can regularly attend to a routine and maintain a schedule; he can relate to and interact with others to the extent necessary to carry out simple tasks; and he can handle reasonable levels of simple work-related stress, in that he can make decisions directly related to the performance of simple work and handle usual workplace changes and interactions associated with simple work.
Applying that RFC, ALJ Ramos concluded at step four that plaintiff is incapable of performing his past relevant work as an accountant.
At step five ALJ Ramos concluded, based upon the Medical-Vocational Guidelines in the regulations, or the grids, that if plaintiff was able to perform a full range of sedentary work, Rule 201.28 of the grids would direct a no disability determination. He went on to consider the additional mental limitations of the RFC and concluded that, notwithstanding those limitations, plaintiff can still meet the basic mental demands of competitive unskilled work, and cited specifically Social Security Rulings 85-15 and 83-14. He, therefore, concluded that the job base on which the grids are predicated was not sufficiently eroded to require testimony of a vocational expert, and concluded that the grid Rules 201.28 and 201.21 directed a finding of no disability.
As you know, my role is limited. I must determine whether the Commissioner's findings resulted from the application of proper legal principles and were supported by substantial evidence. The burden, of course, of establishing disability and limitations resulting from impairments through step four rests with the plaintiff based on Poupore versus Astrue.
The first argument relates to the evaluation of plaintiff's symptomology, what we used to call credibility. The regulations provide for a two-step process, which Judge Ramos followed. 20 CFR Section 404.529 and SSR 16-3p spell out the process that an Administrative Law Judge must follow in evaluating such symptomology. In this case the ALJ concluded that plaintiff does suffer from medically determinable impairments that could reasonably be expected to produce the alleged symptoms claimed by plaintiff. He went on to state, and we've cited it, but it's at page 22, he summarizes stating that, "The claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision."
I understand the arguments raised by Mr. Dolson on behalf of his client, but in my view the Administrative Law Judge did not strictly rely only on objective medical evidence in arriving at his determination. He very carefully goes through the sequence of treatment of the plaintiff following his stroke. He mentions activities of daily living which would undermine the claims raised by the plaintiff. At page 23 the claimant's activities were noted to be attending to personal care, cleaning, doing laundry, shopping, driving, and helping to care for his two children, indicating that those clearly require a preserved ability to balance, stoop, kneel, crouch and crawl.
The Administrative Law Judge also references statements that plaintiff made to his various health care providers. SSR 16-3p makes it clear that the evidence that can be considered can include statements made by the claimant directly to medical sources. The plaintiff stated to Dr. Kim in January of 2015, doing well at home, driving. That's at 443. He can manage independently, he is driving without issue and cares for his children. That was stated to Dr. Kim on March 20, 2015, at 448. He stated on November 25, 2014 to Dr. Kim, doing well independently at home and driving, at 387. December 4, 2014 indicated no weakness and doing well. To Dr. Lodi he stated he was doing very well and was almost fluent. That's at 405. Dr. Masarech was told by plaintiff he was doing well, he had only mild dysphasia, stroke and shoulder. That's May 16, 2016, that's at 450.
The ALJ, in my view, properly considered the activities of daily living, considered statements made by the plaintiff and the findings of his physicians, the fact that he appeared to recover well from his stroke, uses no assistive ambulatory device, and although he has a slightly modified gait, it does not appear to interfere with his ability to perform work-related functions.
The ALJ relied somewhat on Dr. Jenouri's consultative report from January of 2015, and I note that that was only some six months after the stroke. Dr. Jenouri did limit plaintiff to activities in the seated position, but did not in his medical source statement indicate any work-related limitations associated with his right side or his speech impediment. And although he notes diagnoses in both of those areas in his report of the examination, he essentially notes that in terms of extremities and fine motor activity of the hands, he found no muscle atrophy evident, hand and finger dexterity intact, grip strength on the right side was between four and five over five. That's at 433.
6 So, in my view, the Administrative Law Judge carefully considered all available evidence, objective evidence and other evidence as contemplated in SSR 16-3p and his determination is supported by substantial evidence. Meadors, the case relied upon heavily by the plaintiff, is distinguishable because in Meadors the Administrative Law Judge omitted step one and the Court found that that was error.
Again, you know, when we talk about reliance on objective medical evidence, SSR 16-3p provides, "Medical evidence is a useful indicator to help make reasonable conclusions about the intensity and persistence of symptoms, including the effects those symptoms may have on the ability to perform work-related activities for an adult or to function independently." So objective evidence is certainly worthy of consideration. Of course, the Administrative Law Judge in this case did not rely strictly on objective evidence, but went beyond that as contemplated in that ruling. The other evidence, in my view, can include medical sources. That's clear from SSR 16-3p.
In my view, the ALJ explained his consideration of the objective symptomology and the determination is supported by substantial evidence.
Turning to the second argument, the regulations do, I acknowledge, contemplate a function-by-function analysis. However, under Cichocki versus Astrue, it is sufficient that the RFC determination is explained in enough detail to permit meaningful judicial review without the slavish going through of each of the factors. In this case plaintiff was deemed to be capable of performing sedentary work, which under 20 CFR Section 404.1567(a) and SSR 96-9p includes limitations on lifting, sitting, and provides significantly for periods of standing or walking for more than two hours in an eight-hour workday. So by definition those determinations were made when sedentary work was specified.
Dr. Willer, I acknowledge his opinions are somewhat curious in that he states that the plaintiff can walk for four hours in an eight-hour workday, and that was credited by the Administrative Law Judge at page 23, but he begs off on determining the ability to stand. Dr. Jenouri, of course, limits plaintiff to sitting, but I think that the treatment records of the various treatment providers, plaintiff's statements about doing well, driving, his activities of daily living, the fact he does not use an assistive device, and I think that the fact that plaintiff can walk for four hours in an eight-hour workday, I think the ALJ was within his right to conclude also that that means that he can stand and/or walk for two hours in a eight-hour workday. So that I find the step five determination is proper.
5 The mental limitations that were in the RFC, I agree, do not erode the job base on which the grids are predicated. They do not affect plaintiff's ability to meet the basic demands of competitive unskilled work.
9 I conclude that the RFC determination was proper, and the step five determination at which the Commissioner bears the burden was also proper. So I will grant judgment on the pleadings to the defendant and dismiss plaintiff's complaint.
I thank you both for excellent arguments, this was a fascinating case and you both made wonderful presentations. Hope you have a good day. Thank you.
I, EILEEN MCDONOUGH, RPR, CRR, Federal Official Realtime Court Reporter, in and for the United States District Court for the Northern District of New York, do hereby certify that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States. EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter
