Amanda E. V. v. O'Malley

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AMANDA E. V., Plaintiff, v. MARTIN J. O'MALLEY, Commissioner of Social Security,^[1] Defendant.

Civil Action No. 5:23-CV-687 (DEP)

United States District Court, N.D. New York

July 23, 2024

APPEARANCES:

FOR PLAINTIFF LEGAL AID SOCIETY OF MID-NEW YORK, INC.

FOR DEFENDANT SOCIAL SECURITY ADMIN. OFFICE OF GENERAL COUNSEL

OF COUNSEL:

CINDY DOMINGUE-HENDRICKSON, ESQ.

JASON PECK, ESQ. And

ORDER

DAVID E. PEEBLES, U.S. MAGISTRATE JUDGE

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 heard in connection with those motions on July 18, 2024, during a telephone conference conducted on the record. At the close of argument I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioners determination resulted from the application of proper legal principles and is supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by the plaintiff in this appeal.

After due deliberation, and based upon the court's oral bench decision, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is hereby ORDERED as follows:

1) Defendant's motion for judgment on the pleadings is GRANTED.

2) The Commissioners 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.

DECISION TRANSCRIPT

BEFORE THE HONORABLE DAVID E. PEEBLES

July 18, 2024 (The Court and all parties present by telephone. Time noted: 1:43 p.m.)

THE COURT: Let me begin by thanking counsel for excellent presentations. I've enjoyed working with you and you've presented some interesting and intriguing issues, including with respect to step five, which I'll address momentarily.

Before I address the merits of this case, I wanted to broach the subject of consent. When this case was filed, it was, pursuant to our General Order 18, assigned to magistrate judge -- it was assigned to -- originally to magistrate judge -I can't find it, but one of my colleague magistrate judges and a consent form was executed by attorney Elizabeth Lombardi on behalf of the plaintiff. It left blank the identity of the magistrate judge and it simply says, "voluntarily consents to have United States magistrate judge blank conduct all further proceedings in this case to disposition."

I wanted to make sure, does plaintiff consent to my jurisdiction to hear and decide the case?

MS. DOMINGUE-HENDRICKSON: Yes, your Honor.

THE COURT: All right. Thank you.

Plaintiff has commenced this proceeding pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3) to challenge an adverse determination by the Commissioner of Social Security finding that plaintiff was not disabled at the relevant times and therefore ineligible for the benefits sought.

The background is as follows: Plaintiff was born in August of 1986. She is almost 38 years of age. She was 33 years of age at the time of her application for benefits on December 30, 2019, and almost 33 at the time of the alleged onset of her disability on July 3, 2019. She stands 5'7" in height and weighs approximately 150 pounds.

Plaintiff has had various living arrangements throughout the course of this case. At one time she lived with her mother and daughter. This was at the time of the hearing conducted on November 1, 2022. She has also lived in a homeless shelter and at the YMCA, and she also reportedly lived in a rented room in 2020.

Plaintiff is unmarried. She has one daughter who was age 13 on November 1, 2022. She is in the custody of the plaintiff's mother. Plaintiff is right-handed. She has a dog. She has a 9th grade education, although the evidence is equivocal as to whether she actually finished 9th grade. At page 665 of the Administrative Transcript, there is indication she completed the 9th grade. She testified at the hearing, however, at page 52 that she had not. She has not received a GED. While in school, she attended regular classes.

Plaintiff does not drive and does not take public transportation. Plaintiff stopped working in December of 2012. She quit at that time. When working, she was a cashier in a pizza parlor. She worked in a convenience store in the deli department. She worked on an assembly line. She was in housekeeping and was a warehouse selector at one point.

Physically, plaintiff suffers from several impairments, including lumbar degenerative disc disease post laminectomy, an anoxic brain injury caused by an overdose, and -- I will spell this out -- she suffers from ankylosing, A-N-K-Y-L-O-S-I-N-G, spondylitis, which I understand is a type of arthritis that causes inflammation in the joints and ligaments of the spine and may also affect peripheral joints, like knees, ankles, and hips. She also suffers from chronic obstructive pulmonary disease, or COPD, neck pain, arthritis in her back, leg, and hands, irritable bowel syndrome, and hearing loss for which she uses hearing aids and a recommendation has been made for a cochlear plant.

Mentally, plaintiff has suffered from a drug overdose that occurred in or about May of 2016. She also suffers from bipolar disorder, posttraumatic stress disorder, anxiety, depression, and dysthymic disorder. There was a reported suicide attempt by her in May of 2016.

Plaintiff's activities of daily living, as indicated at page 698 and other portions of the Administrative Transcript, include plaintiff's ability to dress, bathe, groom, care for her support dog, clean, do laundry, shop seven days a week. She socializes a little, she builds jewelry, she watches television, she plays video games. Plaintiff is a smoker and has smoked one pack of cigarettes per day on average.

Procedurally, plaintiff applied for Title XVI benefits on December 30, 2019, alleging an onset date of July 3, 2019. There are prior unfavorable decisions based on earlier applications. Those decisions were from October 19, 2016, and July 2, 2019. In support of her current application, she alleges disability based upon PTSD, bipolar disorder, depression, anxiety, a traumatic brain injury, hearing loss, COPD, lower back issues, and arthritis.

A hearing was conducted on July 12, 2022, by Administrative Law Judge Bruce Fein, F-E-I-N. It was adjourned to give plaintiff an opportunity to seek representation. A subsequent hearing was held with a vocational expert on November 1, 2022, by ALJ Fein who then issued a subsequent unfavorable decision on November 16, 2022. The Social Security Administration Appeals Council denied plaintiff's application for review on May 23, 2023. This action was commenced on June 8, 2023, and is timely.

In his decision, ALJ Fein applied the familiar five-step sequential test for determining disability. At step one, he concluded plaintiff had not engaged in substantial gainful activity since December of 2019 and noted that she last worked, apparently, in 2012.

At step two, he concluded that plaintiff does suffer from severe impairments that impose more than minimal limitations on plaintiff's ability to perform basic work functions, including bilateral sensorineural hearing loss, lumbar degenerative disc disease, post lumbar laminectomy, a toxic brain injury, ankylosing spondylitis, COPD, bipolar disorder, dysthymic disorder, generalized anxiety disorder, and PTSD.

At step three, he concluded that plaintiff's conditions do not meet or medically equal any of the listed presumptively disabling conditions set forth in the regulations of the Commissioner, specifically considering listings 1.15, 2.10, 3.02, 11.18, 14.09, 12.02, 12.04, 12.06, and 12.15.

Reviewing the evidence, ALJ Fein next concluded that plaintiff is capable of performing the following residual functional capacity notwithstanding her impairments: She can perform light work, except she can occasionally climb ramps or stairs, ladders, ropes, or scaffolds; can occasionally balance, stoop, kneel, crouch, or crawl; and frequently handle, finger, and feel bilaterally. She should avoid concentrated exposure to noises at the louder higher level as defined in the Dictionary of Occupational Titles and the Selected Characteristics of Occupations, and concentrated exposure to pulmonary irritants such as fumes, odors, gases, dust, poorly ventilated areas, and she will need to have ready access to restroom facilities in the workplace. She can perform work limited to simple, routine, and repetitive tasks with only occasionally interaction -- that's a typographical error -- with supervisors, coworkers, and the public. She can work in a low stress job defined as having only occasional decisionmaking, changes in the work setting, and judgment required on the job.

Counsel, if you could mute your phone. We're getting a ringing on the phone.

Applying that RFC at step four, the ALJ concluded that plaintiff has no past relevant work to consider and thus proceeded to step five where, with the benefit of a vocational expert's testimony, he concluded that there is available work in the national economy that plaintiff is capable of performing, citing as representative positions garment sorter, dispatcher/router, and mail clerk/mail sorter.

As you know, my task is limited in this case to determining whether correct legal principles were applied and the resulting determination...