Holly Lou S. v. Comm'r of Soc. Sec.

• Decision Date: 17 November 2021
• Docket Number: Civil Action 3:20-CV-0597 (MAD/DEP)
• Parties: HOLLY LOU S., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Northern District of New York

HOLLY LOU S., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

Civil Action No. 3:20-CV-0597 (MAD/DEP)

United States District Court, N.D. New York

November 17, 2021

APPEARANCES

FOR PLAINTIFF OLINSKY LAW GROUP

FOR DEFENDANT SOCIAL SECURITY ADMIN

OF COUNSEL

HOWARD D. OLINSKY, ESQ

JULIE ATKINS, ESQ.

AMELIA STEWART, ESQ.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

Plaintiff has commenced this proceeding, pursuant to 42 U.S.C. § 405(g), to challenge a determination of the Commissioner of Social

1

Security (“Commissioner”) finding that she was not disabled at the relevant times and, accordingly, ineligible for the disability insurance (“DIB”) benefits for which she has applied. The matter has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3. For the reasons set forth below, I recommend a finding that the Commissioner's determination resulted from the application of proper legal principles and is supported by substantial evidence.

I. BACKGROUND

Plaintiff was born in December of 1968, and is currently fifty-two years of age. She was forty-seven years old at her alleged onset date of disability of August 31, 2016, and at the time of her application for benefits in October of 2016. Plaintiff stands five-foot and two inches in height, and has weighed at various times relevant to this decision between two hundred forty-four and two hundred sixty-five pounds. Plaintiff resides in a double-wide mobile home with her husband and her nine-year-old granddaughter, who she is raising like a daughter.

Plaintiff has a high school education with no history of special education, although she did receive one-on-one tutoring in school. She also completed certificate programs for clerical skills, travel, and tourism,

2

and obtained an associate's degree in medical office assisting from Elmira Business Institute. Plaintiff reported that she has no trouble reading, writing, or doing basic math, and no difficulty understanding or comprehending what she reads and writes. Plaintiff has a driver's license and does drive.

Plaintiff reports that she stopped working in September 2016. Prior to that time, she worked as a secretary in a medical office, and previously, as a laborer who assembled tools.

Physically, plaintiff alleges that she suffers from sleep apnea and pain in her neck that extends into her left shoulder and both arms, and that causes headaches. Plaintiff has received injections related to that pain, which have helped alleviate both her neck pain and her headaches. During the relevant period, plaintiff treated for her neck pain and related symptoms with Dr. Roger Schenone and Dr. Vidyasagar Mokureddy at Arnot Health.

Mentally, plaintiff alleges that she suffers from depression, anxiety, and panic attacks. Plaintiff has received treatment for her mental conditions in the form of medication, therapy, and visits with a psychiatrist. During the relevant period, plaintiff treated for her mental impairments with St. Joseph's Hospital, where she received inpatient care for a suicide attempt in September 2016, and Family Services of Chemung County,

3

where she was seen by Dr. Joseph Touchstone, among others.

Plaintiff has been prescribed several medications over time including, though not limited to, Ambien, Cymbalta, Latuda, Paxil, Wellbutrin, Prozac, Provigil, Trazadone, Gabapentin, Lofentanil, Lantus, and Metformin.

Plaintiff has reported that she can clean, do laundry, and cook meals (although her husband does the majority of those chores), help care for multiple pets, and assist her daughter with homework. She has no problems with personal care tasks such as dressing or bathing, although she reported that her husband helps her take off her shirt because of her neck pain. Plaintiff can ride in a car and go shopping with her husband and daughter. Plaintiff uses a pill box to remember to take her medications, and her husband helps remind her to take her insulin. She is able to pay bills, count change, and handle a savings account. Plaintiff's activities include crocheting, swimming, and walking in her yard in moderation. She also watches television, but is not able to follow along with the story lines. She cannot lift more than ten or twenty pounds and cannot lift over her head, but does not have much trouble standing, walking, or sitting for long periods of time. She has a service dog to help her with her anxiety when out in public.

II. PROCEDURAL HISTORY

4

A. Proceedings Before the Agency

Plaintiff applied for DIB payments under Title II of the Social Security Act on October 19, 2017. In support of that application, she alleged a disability onset date of August 31, 2016, and claimed to be disabled based on depression, neck problems, headaches, diabetes, thyroid problems, migraines, and high cholesterol.

A hearing was conducted on November 30, 2018, by ALJ Robyn L. Hoffman, to address plaintiff's application. Following that hearing, ALJ Hoffman issued an unfavorable decision on January 15, 2019. That opinion became a final determination of the agency on March 31, 2020, when the Social Security Appeals Council (“Appeals Council”) denied plaintiff's request for review of the ALJ's decision.

B. The ALJ's Decision

In her decision, ALJ Hoffman applied the familiar, five-step sequential test for determining disability. At step one, she found that plaintiff had not engaged in substantial gainful activity during the relevant period. At step two, ALJ Hoffman found that plaintiff suffers from severe impairments that impose more than minimal limitations on her ability to perform basic work functions, including a major depressive disorder, an unspecified anxiety disorder, bipolar disorder, diabetes mellitus, obstructive sleep apnea, and

5

cervical degenerative disc disease status post a 2010 discectomy surgery.

At step three, ALJ Hoffman examined the governing regulations of the Commissioner setting forth presumptively disabling conditions (the “Listings”), see 20 C.F.R. Pt. 404, Subpt. P, App. 1, and concluded that plaintiff's conditions do not meet or medically equal any of those listed conditions, specifically considering Listings 1.04, 3.14, 12.04, and 12.06.

ALJ Hoffman next surveyed the available record evidence and concluded that plaintiff retains the residual functional capacity (“RFC”) to perform a range of light work, ^[1] as defined by the controlling regulations, with the following exceptions:

mentally, the claimant retains the ability to understand and follow simple instructions and directions; perform simple tasks independently; maintain attention/concentration for simple tasks;

6

and regularly attend to a routine and maintain a schedule. She can relate to and interact appropriately with all others to the extent necessary to carry out simple tasks. She can also handle simple, repetitive work-related stress, in that she can make occasional decisions directly related to the performance of simple tasks in a position with consistent job duties that does not require her to supervise or manage the work of others.

At step four, ALJ Hoffman concluded that plaintiff is unable to perform the demands of any of her past relevant work based on her RFC. Proceeding to step five, the ALJ found that the additional mental limitations do not preclude plaintiff from performing all of the basic mental requirements of unskilled work outlined in Social Security Ruling (“SSR”) 85-15 on a sustained basis and do not reduce the occupational base of unskilled light work that plaintiff remains able to perform. She therefore found that Medical-Vocational Guideline Rules 202.21 and 202.14 direct a finding that plaintiff is “not disabled.” Based upon these findings, ALJ Hoffman concluded that plaintiff was not disabled at the relevant times.

C. This Action

Plaintiff commenced this action on June 1, 2020.^[2] In support of her

7

challenge to the ALJ's determination, plaintiff raises several arguments, contending that (1) the ALJ failed to properly consider and weigh the opinions from treating physician Dr. Touchstone, consultative examiner Dr. Slowik, and state agency psychiatric consultant Dr. Kamin, and failed to account for their opined limitations in her RFC determination; (2) the ALJ failed to reconcile a finding, using the regulatorily-prescribed psychiatric review technique, that plaintiff was moderately limited in the area of interacting with others with the RFC, in which she failed to incorporate such moderate limitation; (3) the ALJ erred in failing to properly evaluate plaintiff's subjective allegations regarding her symptoms; (4) the ALJ erred in relying on the Medical-Vocational Guidelines for her step five finding rather than eliciting the testimony of a vocational expert because the existence of nonexertional limitations made use of the Guidelines inappropriate; (5) the portion of the ALJ's RFC finding related to her physical capabilities is not supported by any opinion from a medical source; and (6) the ALJ failed to properly consider whether a limitation relating to the need for a service dog should have been included in the RFC.

Oral argument was conducted in this matter, by telephone, on November 9, 2021, at which time decision was reserved.

III. DISCUSSION

8

A. Scope of Review

A court's review under 42 U.S.C. § 405(g) of a final decision by the Commissioner is subject to a “very deferential” standard of review, and is limited to analyzing whether the correct legal standards were applied, and whether the decision is supported by substantial evidence. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Where there...