IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

ALYSSA H., Plaintiff, v. Civil Action No. 3:20-cv-1506 (DEP)

KILOLO KIJAKAZI, Acting Commissioner of Social Security,1

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LACHMAN GORTON LAW FIRM PETER A. GORTON, ESQ. P.O. Box 89 1500 East Main Street Endicott, NY 13761-0089

FOR DEFENDANT

SOCIAL SECURITY ADMIN. CHRISTINE A. SAAD, ESQ. 625 JFK Building 15 New Sudbury St Boston, MA 02203

1 Plaintiff’s complaint named Andrew M. Saul, in his official capacity as the Commissioner of Social Security, as the defendant. On July 12, 2021, Kilolo Kijakazi took office as the Acting Social Security Commissioner. She has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See 42 U.S.C. § 405(g). DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security (“Commissioner”), pursuant to 42 U.S.C. '§ 405(g) and 1383(c), are cross-motions for judgment on the pleadings.2 Oral argument was conducted in connection with those motions on July 13, 2022, during a telephone conference held 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 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

2 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. 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 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.

U.S. Magistrate Judge Dated: July 18, 2022 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x ALYSSA H., Plaintiff, vs. 3:20-CV-1506

KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on July 13, 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: LACHMAN GORTON LAW FIRM Attorneys at Law P.O. Box 89 1500 East Main Street Endicott, New York 13761-0089 BY: PETER A. GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel J.F.K. Federal Building Room 625 Boston, Massachusetts 02203 BY: CHRISTINE A. SAAD, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 (The Court and all counsel present by telephone.) THE COURT: Let me begin by thanking both counsel for excellent spirited presentations. Plaintiff has commenced this action pursuant to 42 United States Code Sections 405(g) and 1383(c)(3) to challenge an adverse determination by the Acting Commissioner of Social Security finding that she was not disabled at the relevant times and therefore ineligible for the Title XVI benefits which she sought. The background is as follows: Plaintiff was born in February of 1991 and is currently 31 years of age. She was 27 years old at the alleged onset of disability which is actually the date of her application for benefits of March 19, 2018. Plaintiff stands 5 foot 1 inch in height and has weighed between 117 and 130 pounds at various times. Plaintiff lives in Johnson City with her mother, a son together with the wife's son -- the wife's son's father, and also with her sister. Plaintiff is right-handed. She achieved a GED and attended regular classes while in school. I note that the marital situation is fairly fuzzy, it's unclear whether she and the son's father are married. They live apart but cohabitate when the son is with the father. Plaintiff does not have a driver's license. Plaintiff stopped working in March of 2018 and actually, according to page 31 of the administrative transcript, has not worked since 2013. When she did work, she worked as a part-time cashier in a restaurant, as a janitor, and as a grocery store produce worker. According to page 231 of the administrative transcript, she was fired from that position as a result of a conflict with her boss. Plaintiff does suffer from some relatively minor physical impairments including tarsal tunnel syndrome, left lower, for which she underwent release surgery in September of 2018, fibromyalgia, and sleep apnea, although she does not use a CPAP machine. The issue really in this case surrounds her mental condition. She has at various times been diagnosed as suffering from depressive disorder, panic disorder without agoraphobia, bipolar disorder, and cannabis disorder. In March of 2017, she attempted suicide through overdose of gabapentin and Klonopin and was hospitalized as a result of that suicide attempt. There were also indications of physical confrontations with her mother at or about that time. Plaintiff has treated with various providers including Endwell Family Physicians, Lourdes Primary Care, UHS Rheumatology, Lourdes Center for Mental Health, UHS Mental Health, and Family and Children's Society. In terms of activities of daily living, plaintiff does some cooking, child care, including dropping off and picking up her son at the bus stop. She plays with her son, she cleans, watches television, listens to the radio. She can dress herself, she does not shop, instead relying on her mother for that. Procedurally, plaintiff applied for Title XVI benefits on March 19, 2018. On page 150, she claims disability based upon fibromyalgia, anxiety, depression, and sleep apnea. A hearing was conducted on November 5, 2019 by Administrative Law Judge Shawn Bozarth to address plaintiff's application for benefits. ALJ Bozarth issued an unfavorable decision on November 15, 2019. That became a final determination of the agency on October 6, 2020 when the Social Security Administration Appeals Council denied plaintiff's request for review. This action was commenced on December 8, 2020, and is timely. In his decision, ALJ Bozarth applied the familiar five-step sequential test for determining disability. At step one he determined that plaintiff had not engaged in substantial gainful activity since the date of her application. At step two he found that plaintiff suffers from severe impairments that impose more than minimal limitations on her ability to perform basic work functions, and specifically fibromyalgia, depressive disorder, panic disorder, cannabis disorder, sleep apnea, tarsal tunnel syndrome, and bipolar disorder. At step three, ALJ Bozarth concluded that plaintiff's conditions do not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering Listings 1.02, 12.04, and 12.06, as well as Social Security Ruling 12-2p which addresses fibromyalgia. After surveying the medical evidence in the record and other evidence, ALJ Bozarth concluded that plaintiff retains the residual functional capacity, or RFC, to perform sedentary work as defined in the regulations, with additional physical limitations not at issue in this case, as well as the following mental limitations. The claimant is capable of simple, routine, and repetitive tasks in low-stress jobs which are jobs that are defined as goal-oriented and which do not have an assembly line, piecework, or numerical production quota pace, a job in which the individual is limited to occasional decision making, occasional changes of workplace setting, and occasional changes to workplace routine and a job in which she has only occasional contact with supervisors, coworkers, and customers. And based upon that RFC, the administrative law judge determined, after concluding at step four that plaintiff did not have any past relevant work of sufficient duration or earnings to be considered, concluded based upon the testimony of a vocational expert that plaintiff is capable of performing available work in the national economy, citing as representative positions document preparer, lens inserter, and final assembly. As the parties are well aware, the court's function in this case is to determine whether correct legal principles were applied and substantial evidence supports the resulting determination. As the Second Circuit noted in Brault v. Social Security Administration Commissioner, 683 F.3d 443 from 2012, this is an extremely rigid -- Mr. Gorton, are you there? MR. GORTON: I am back, yes, somehow I got cut off, I don't know if everybody else got cut off, but -- so I called back. THE COURT: All right. Well, I don't know where you left off but I'll continue and you'll be receiving a transcript of my determination. MR. GORTON: It'll be fine, yeah. THE COURT: So in Brault, the Second Circuit noted that this is an extremely stringent standard, substantial evidence being defined as such relevant evidence as a reasonable mind would find sufficient to support a conclusion. That is even more demanding than the clearly erroneous standard. Significantly, the Circuit noted that once the administrative law judge finds a fact, under this deferential standard, the fact can be rejected only if a reasonable fact finder would have to conclude otherwise. In this case, plaintiff raises several contentions, the focus being on plaintiff's mental condition. First, she challenges the failure of the Appeals Council to consider LCSW Kathleen Loftus' letter of April 28, 2020. Second, she asserts that it was error committed in assessing plaintiff's medical records and relying on his assessment for affixing the RFC. Third, she challenges the weight assigned to medical opinions issued by state agency consultant Dr. L. Haus and Consultative Examiner Dr. Amanda Slowik. Fourth, she challenges the social limitation as not supported, and fifth, claims that the step five determination, which the Commissioner bears the burden of proof of course, is flawed based upon the hypothetical that is based upon a residual functional capacity finding not supported by substantial evidence. The relevant period in this case of course is March of 2018 to November 2019, although that does not necessarily mean that records outside that date are wholly irrelevant. Addressing the first argument, on April 28, 2020, Therapist Kathleen M. Loftus issued a letter that is in the record -- Mr. Gorton, are you there? Ms. Saad, are you there? MS. SAAD: I'm here, your Honor. THE COURT: Let's wait a minute for Mr. Gorton to call back. He should pay his phone bill. MR. GORTON: I'm here, I'm here, I had it on mute, I've been here. THE COURT: It just sounded like somebody signed off, but we'll continue. MR. GORTON: It did, it sounded the same to me. I was assuming that this time it was maybe the defendant's attorney. But the first time, I didn't sign off by the way, it just killed me, but this time I've been on, I just -- doggone it, I put it on mute so I don't disturb and then I forget. THE COURT: Okay. MR. GORTON: But I'm here. THE COURT: Maybe the court should pay its phone bill. All right. So addressing Therapist Loftus' opinion, in that letter, she states, "As a psychotherapist, part of my job is to be an agent of change, a beacon of hope for my patients. I believe we all have the ability to change and heal with motivation and support. It's just not easy." Significantly she states, "In my opinion, Ms. H.'s mental illness makes it impossible to participate in activities that most people would say are normal, including working, at this point in her treatment." The Social Security Administration Appeals Council said the following with regard to that letter, this is at page 2 of the administrative transcript. The letter of Therapist Loftus, by the way, is at page 6. "You submitted a letter from Kathleen Loftus, LCSW-R, Family and Children's Society, dated April 28, 2020 (1 page). The administrative law judge decided your case through November 5, 2019. This additional evidence does not relate to the period at issue. Therefore it does not affect the decision about whether you were disabled beginning on or before November 15, 2019." To be properly considered, of course, it is well accepted new evidence must be new, obviously, material, and must relate to the period before the ALJ's decision. Lesterhuis v. Colvin, 805 F.3d 83 from the Second Circuit, 2015. I agree with plaintiff's counsel that the mere fact that the letter postdates the administrative law judge's decision by some six months, the mere fact alone does not mean that it does not qualify as new evidence that must be considered. Williams v. Commissioner of Social Security, 236 F.App'x 641 from the Second Circuit, 2007, and Pollard v. Halter, 377 F.3d 183 from the Second Circuit, 2004. But clearly, it must reflect in some way, shape, or form that it relates to the period at issue. Anna G. v. Commissioner of Social Security, 2021 WL 3721140, Western District of New York, August 23, 2021. Aside from the fact that the therapist began treating the plaintiff in March of 2018, it does not on its face say anything to indicate that it relates to the period in question. So I do not believe it was error or would be error not to consider this letter, and even if it was, I believe the error was harmless because the sentence that I read, beginning with, "In my opinion," in my view, speaks to a matter reserved to the Commissioner, specifically whether the plaintiff is capable of working. Turning to the next argument, whether the residual functional capacity is supported and specifically whether the medical treatment notes were properly evaluated by the administrative law judge. A claimant's RFC represents a finding of the range of tasks she is capable of performing, notwithstanding her impairments. Specifically it ordinarily represents a maximum ability to perform sustained work activities in an ordinary setting on a regular and continuing basis, meaning eight hours a day for five days a week, or an equivalent schedule. Tankisi v. Commissioner of Social Security, 521 F.App'x 29 at 33, Second Circuit 2013. Of course an RFC determination is informed by consideration of all of the relevant and other medical evidence, all of the other evidence, and must be supported by substantial evidence. In this case, the residual functional capacity is fairly limited. Support for the RFC comes in the form of treatment notes, although they are admittedly mixed. The plaintiff, at pages 1 through 5 of her brief, has outlined what she believes to be treatment records that support her position. The defendant at pages 9 and 10 outlines many of the same -- records from many of the same dates, and excerpts that she believes supports her position. The administrative law judge also relied on the opinions of Dr. Haus and Dr. Slowik, as well as plaintiff's activities of daily living. The crux is whether I can say that no reasonable fact finder could find the RFC that the administrative law judge did, based upon the evidence in the record. The evidence is equivocal. There is something in it for both sides, but I am unable to say that no reasonable fact finder could have arrived at the same conclusion, based on the evidence in the record. The crux of this case really is in the evaluation of medical opinions. This case of course was filed after March of 2017, the application that is, and therefore is subject to the new revised regulations that took effect at that time. Under the new regulations, an ALJ does not defer or give any specific evidentiary weight, including controlling weight, to any medical opinions or prior administrative medical findings, including those from a claimant's medical sources, 20 C.F.R. Section 416.920c(a). Instead, an ALJ must consider factors that are laid out in the regulations. Among them, paramount are supportability and consistency, although the other factors must be considered. Under the regulations, the ALJ must articulate how persuasive he found the medical opinion and explain how he considered the supportability and consistency of the opinions. The ALJ may, but is not required to, discuss the other factors. 20 C.F.R. Section 416.920c(b). In this case, the focus of the arguments are upon the opinions of Dr. -- first of Dr. L. Haus, a state agency consultant, who rendered an opinion on April 25, 2018, it appears at Exhibit 1A, pages 52 to 66 of the administrative transcript, and also at 410 to 411. In his opinion or her opinion, Dr. Haus finds moderate limitations in many areas: The ability to understand or remember detailed instructions, the ability to carry out detailed instructions, the ability to maintain attention and concentration for extended periods, the ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances, the ability to work in coordination with or in proximity to others without being distracted by them, the ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods, the ability to interact appropriately with the general public, the ability to accept instructions and respond appropriately to criticisms from supervisors, the ability to respond appropriately to changes in the work setting, the ability to travel in unfamiliar places or use public transportation. In each of the subdomains listed on the worksheet, when asked to explain in narrative form the adaptation capacities and/or limitations, the notation is made, "See below." In the mental RFC portion of Dr. Haus' opinion, he or she recites what the medical evidence shows and draws the conclusion, "Retains the mental ability to complete simple work with occasional contact with others. These findings complete the medical portion of the disability determination." No explanation whatsoever as to how he or she arrived at that conclusion, what the extent of the limitations reflected in the worksheet was. In my view, it is woefully lacking in explanation that would permit meaningful review of Dr. Haus' opinion as to whether it's supported. And so Jeaninne C. v. Andrew M. Saul, Docket Number 19-CV-1176, civil action number, Docket Number 19, I addressed a similarly deficient state agency consultant opinion and ordered a remand for that reason, and I find that it was error in this case because of the woeful deficiency. In his decision, ALJ Bozarth found at page 20 that Dr. Haus' opinion was significantly persuasive based on the following: "The source has program knowledge. The doctor provided a detailed supporting rationale," which he did not. "And 3, this opinion is generally consistent with the contemporaneous treatment notes, the claimant's reported activities of daily living and her mental health treatment course." I do not find that that is a sufficient explanation of the issue of either consistency or supportability. And I note when relying on activities of daily living, the plaintiff has fairly limited activities of daily living as she reported to both Dr. Slowik and Dr. Jenouri and in my view, what she is capable of doing in terms of activities of daily living do not translate well into the ability to work on a sustained basis in competitive employment and the ALJ did not tell me otherwise as to how that bridge is gapped, or that gap is bridged I guess is the correct term. She doesn't take public transportation because of her anxiety, she doesn't shop because of her anxiety, anxiety limits her from leaving her house. She does care for her son and drop him off at a nearby bus stop and pick him up, but in my view, those don't necessarily translate well into competitive employment capability. But the bottom line is, I don't believe that the administrative law judge's analysis of Dr. Haus permits meaningful judicial review. Raymond M. v. Commissioner of Social Security, 2021 WL 706645 from the Northern District of New York, it is February 22, 2021. The -- in my view that error alone would warrant remand. The second opinion at issue comes from Dr. Amanda Slowik, it appears at pages 405 through 409, it was issued on April 18, 2018. In her medical source statement, Dr. Slowik finds, among other things, that claimant is limited in her ability to interact adequately with supervisors, coworkers, and the public to an extent that is described as moderately to markedly. She also finds that the claimant is markedly limited in her ability to sustain an ordinary routine and regulate emotions, and concludes that these difficulties are caused by distractibility, anxiety, and depression. In his decision, ALJ Bozarth concluded that Dr. Slowik's opinion was partially persuasive, finding that she has program knowledge, was able to examine the claimant, but she -- he concluded that the degree of severity assessed by this opinion is greater than supported by claimant's activities of daily living, I've already addressed that, and contemporaneous treatment notes. In my view, it's not sufficient, sufficiently adequate to simply say it's in contemporaneous treatment notes without further specificity. In my view, again, Dr. Slowik, the administrative law judge's consideration of Dr. Slowik's opinion is woefully deficient and does not properly address supportability and consistency to an extent that would permit meaningful review. I don't agree that the opinion is vague, and I reject the Commissioner's argument that was made in the brief but not pressed at -- acknowledge that it was not pressed during argument, that Dr. Slowik's opinion is not a medical opinion under the regulations that are subject to the requirement of addressing supportability and consistency. I've already said how I don't believe the activities of daily living reflected, including in Dr. Slowik and Dr. Jenouri's reports, show that plaintiff can work five days a week eight hours a day. Pamela P. v. Saul, 2020 WL 2561106 from the Northern District of New York signed May 20, 2020, by my colleague Magistrate Judge Daniel J. Stewart, and Coyle v. Commissioner of Social Security, 2018 WL 3559073 from the Northern District of New York, 2018, my colleague Administrative Law Judge William Mitchell. So I find error in the reliance on the activities of daily living without specifying the relationship between the ADLs relied on and plaintiff's ability to meet the mental demands of competitive employment. I don't believe that the ALJ's analysis of Dr. Slowik's opinion permits meaningful judicial review. I find that the error is harmful because Dr. Slowik's opinion is inconsistent with the RFC when it comes to plaintiff's ability to maintain a schedule and stay on task, and so I believe the matter should be remanded for further consideration of the evidence. I do not find persuasive proof of disability and therefore will order that the Commissioner's determination be vacated and the matter be remanded for further consideration. Thank you both for excellent presentations, I hope you have a good afternoon and the rest of your summer. MR. GORTON: Thank you, your Honor. MS. SAAD: Thank you, your Honor. (Proceedings Adjourned, 2:58 p.m.)

CERTIFICATE OF OFFICIAL REPORTER

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

Dated this 15th day of July, 2022.

/S/ JODI L. HIBBARD

JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25