Mullen v. Colvin

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________ JEFFREY M., Plaintiff, v. Civil Action No. 3:24-CV-981 (DEP) FRANK BISIGNANO, 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 13760-0089 FOR DEFENDANT SOCIAL SECURITY ADMIN. GEOFFREY M. PETERS, ESQ. OFFICE OF GENERAL COUNSEL 6401 Security Boulevard Baltimore, MD 21235 DAVID E. PEEBLES U.S. MAGISTRATE JUDGE 1 Plaintiff’s complaint named Martin O’Malley, in his official capacity as the Commissioner of Social Security, as the defendant. On May 18, 2025, Frank Bisignano took office as the Commissioner of Social Security. He 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). The clerk is respectfully directed to amend the court’s records to reflect this change. ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of a partially unfavorable administrative determination by the Commissioner of Social Security (“Commissioner”), pursuant to 42 U.S.C. § 405(g) are cross-motions for judgment on the pleadings.2 Oral argument was heard in connection with those motions on July 30, 2025, 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 Commissioner=s 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 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. ORDERED, as follows: 1) □ Defendant’s motion for judgment on the pleadings is GRANTED. 2) |The Commissioner’s determination that the plaintiff was not disabled at certain relevant times, and thus is not entitled to benefits under the Social Security Act for that period, is AFFIRMED. 3) The clerk is respectfully directed to enter judgment, based upon this determination, DISMISSING plaintiff's complaint in its entirety. U.S. Magistrate Judge Dated: August 4, 2025 Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x JEFFREY M., Plaintiff, vs. 3:24-CV-981 FRANK BISIGNANO, COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on July 30, 2025, 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 P.O. Box 89 1500 East Main Street Endicott, New York 13760-0089 BY: PETER A. GORTON, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION 6401 Security Boulevard Baltimore, Maryland 21235 BY: GEOFFREY M. PETERS, ESQ. Jodi L. Hibbard, RMR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (The Court and counsel present by telephone.) 2 THE COURT: Plaintiff has commenced this proceeding 3 pursuant to 42 United States Code Section 405(g) to challenge 4 an adverse determination by the Commissioner of Social 5 Security finding that he was not disabled at the relevant 6 times and therefore ineligible for the benefits for which he 7 applied. 8 Before addressing the merits, I did want to broach 9 the subject of consent. When this case was filed, it was 10 assigned to United States Magistrate Judge Thérèse Wiley 11 Dancks. The consent form that was signed on August 23, 2024 12 by plaintiff's counsel consented specifically to her 13 jurisdiction to hear and decide the case with direct review 14 to the Second Circuit Court of Appeals. I know that the 15 docket sheet, when it was transferred to me, suggested that 16 if consent was to be withdrawn, it should be withdrawn within 17 a certain specified period of time. But I will confirm with 18 you, Attorney Gorton, do you consent to my hearing and 19 deciding this case with direct appeal to the Second Circuit 20 Court of Appeals? 21 MR. GORTON: Yes. 22 THE COURT: Thank you. The background of this case 23 is as follows: Plaintiff was born in October of 1980. He is 24 currently 44 years of age, he was 41 at the time that he was 25 last insured for benefits on June 30, 2022. He stands 6 foot 1 1 inches in height and weighs approximately 167 pounds. 2 Plaintiff lives in Binghamton alone. He has four years of 3 college and received a sociology degree. While in school he 4 was in regular classes. Plaintiff drives. He has a 5 relatively close relationship with his mother and stepfather. 6 Apparently his parents divorced when he was extremely young 7 and his father committed suicide when he was approximately 22 8 years old. 9 Mentally, and this case involves plaintiff's mental 10 conditions, he suffers from various disorders, including 11 depressive disorder, bipolar disorder, anxiety disorder, 12 agoraphobia with panic disorder. Plaintiff has a history of 13 alcohol abuse but does not apparently engage in use of 14 alcohol. He's a daily smoker of THC against the advice of 15 his doctors. Plaintiff has not had any psychiatric inpatient 16 treatment. Over time he's been prescribed lorazepam, Xanax, 17 Spravato and Latuda to address his conditions. Plaintiff 18 sees Licensed Clinical Social Worker, or LCSW, Barry Schecter 19 and has since April 23, 2020. His primary physician was 20 Dr. Keith Nichols who retired and after that retirement he 21 began seeing Dr. Ejiro Agboro-Idahosa in or about June of 22 2022. I will refer to that person as Dr. Idahosa. 23 Plaintiff stopped working on or about January 1, 24 2020. While working he was an auto parts retailer both for a 25 company and on his own. He has been a food pantry volunteer. 1 He tried to open an auto repair shop and leased space, 2 installed a lift but could not find a mechanic to work, 3 that's at page 420, and therefore the shop did not open. 4 In terms of activities of daily living, plaintiff 5 is able to groom himself, care for his personal needs, he 6 does a minimum amount of cooking, he claims that he receives 7 leftovers and food from other people and eats one or two 8 times a day because of his depression. He can do minimal 9 cleaning, laundry, some shopping, cares for his dog, 10 including walking the dog. He does engage in some leisure 11 activities, he watches television and listens to the radio. 12 Procedurally, plaintiff applied for Title II 13 benefits on January 6, 2022, alleging an onset date of 14 January 1, 2020. He alleged at page 204 of the 15 Administrative Transcript disability based on anxiety, 16 depression, agoraphobia, and panic attacks. A hearing was 17 conducted by Administrative Law Judge, or ALJ, Kenneth 18 Theurer on September 25, 2023, to address plaintiff's 19 application. At that hearing, testimony was also elicited 20 from a vocational expert. On October 9, 2023, Administrative 21 Law Judge Theurer issued an adverse determination which 22 became a final determination of the Agency on June 6 -- I'm 23 sorry, June 10, 2024, when the Social Security Administration 24 Appeals Council denied plaintiff's application for review. 25 This action was commenced on August 9, 2024, and is timely. 1 In his decision, the administrative law judge 2 applied the familiar five-step sequential test for 3 determining disability. He first noted that plaintiff's last 4 insured date was June 30, 2022, meaning that this case 5 involves a closed period from January 1, 2020 to June 30, 6 2022. 7 At step one, the administrative law judge concluded 8 plaintiff had not engaged in substantial gainful activity 9 over that relevant period but did note that there were some 10 spare parts sales and although no earnings were reflected, 11 nonetheless that effort has been considered by the 12 administrative law judge. 13 At step two, Administrative Law Judge Theurer 14 concluded that plaintiff does suffer from severe impairments 15 that impose more than minimal limitations on his ability to 16 perform basic work functions, including anxiety disorder, 17 depressive disorder, and agoraphobia. 18 At step three, the administrative law judge 19 concluded that the conditions do not meet or medically equal 20 any of the listed presumptively disabling conditions set 21 forth in the Commissioner's regulations, specifically 22 considering Listings 12.04 and 12.06. The ALJ concluded in 23 that regard that plaintiff's condition does not meet either 24 the B or C criteria of those listings. 25 The administrative law judge next surveyed the 1 available evidence and concluded that plaintiff is capable, 2 notwithstanding his limitations, of performing a full range 3 of work at all exertional levels with the following 4 exceptions: The claimant's work is limited to simple, 5 routine, and repetitive tasks in a work environment free of 6 fast-paced production requirements as would be experienced on 7 an assembly line; involving only simple work-related 8 decisions with few, if any, workplace changes; he can 9 interact with supervisors and coworkers on an occasional 10 basis throughout the workday, after learning their job duties 11 from an instructional or demonstrational lesson; he can have 12 no more than incidental contact with the public. I define 13 incidental as more than never and less than occasional. 14 Simply, the job should not involve direct interactions with 15 the public, but the claimant does not need to be isolated 16 away from the public. 17 Applying this RFC finding, the administrative law 18 judge concluded at step four the plaintiff is unable to 19 perform his past relevant work and proceeded to step five 20 where, with the assistance of testimony from the vocational 21 expert, he concluded that there is available work in the 22 national economy that plaintiff is capable of performing, 23 citing as representative positions those of laundry laborer, 24 cleaner II, and dishwasher, and therefore found that 25 plaintiff was not disabled at the relevant times. 1 As the parties know, this case is subject to review 2 to determine whether substantial evidence supports the 3 resulting determination and correct legal principles were 4 applied. As the Commissioner's counsel has noted, the 5 standard is extremely deferential. That was noted by the 6 Second Circuit Court of Appeals in Brault v. Social Security 7 Administration Commissioner, 683 F.3d 443, Second Circuit, 8 2012, and has been reiterated many times, including 9 relatively recently by the Circuit in Schillo v. Kijakazi, 31 10 F.4th 64 from 2022. It is a more rigorous standard than even 11 the clearly erroneous standard and as the Second Circuit 12 noted in Brault, "The substantial evidence standard means 13 once an ALJ finds facts, we can reject those facts only if a 14 reasonable fact finder would have to conclude otherwise." 15 Under the standard, it doesn't matter what my 16 determination would be if I was deciding the case, 17 specifically the issue of disability. Instead, I must 18 determine whether the administrative law judge's 19 determination was supported by substantial evidence, and 20 again, whether correct legal principles were applied. 21 In this case, plaintiff alleges that the 22 administrative law judge committed error in evaluating the 23 medical opinions of record, and specifically in crediting the 24 prior administrative medical findings of the state agency 25 physicians and the consultative examiner Dr. Long, and 1 rejecting opinions from two treating primary sources and 2 plaintiff's therapist. 3 Under the regulations which took effect in March of 4 2017, the Commissioner does not give any specific weight or 5 defer to any medical opinions, including from treating 6 sources, but instead must consider whether they are 7 persuasive by primarily considering whether they are 8 supported by and consistent with the record in the case. 20 9 C.F.R. Section 404.1520(c). The ALJ must articulate to a 10 degree that permits meaningful judicial review how persuasive 11 each medical opinion is and must specifically explain how he 12 or she considered the factors of supportability and 13 consistency of those opinions. 14 The Second Circuit has noted that the -- if there 15 is not specific discussion of the factors of consistency and 16 supportability but a searching review of the record reveals 17 that they were, those factors were indeed considered, then 18 that error can be deemed harmless. Loucks v. Kijakazi, 2022 19 WL 2189293, Second Circuit, June 17, 2022, and Camille v. 20 Colvin, 652 F.App'x 25, Second Circuit 2016. 21 In this case, there are prior administrative 22 findings from two physicians. The first is from Dr. O. 23 Fassler, it is dated April 22, 2022, and it appears at 24 Exhibit 1A of the Administrative Transcript. In the 25 worksheet, there are moderate limitations noted. At page 69, 1 the conclusion is, "Based on the objective findings, the 2 claimant retains ability to perform unskilled work in a low 3 contact setting." There is a somewhat healthy discussion of 4 the record, it could be more thorough, but -- and the 5 worksheet indicates, as I said, moderate limitations which of 6 course the courts have said do not preclude a plaintiff from 7 conducting unskilled work. Porteus v. O'Malley, 2024 WL 8 2180203, Second Circuit, 2024, and Richard H. v. Saul, 2020 9 WL 467734, Second Circuit, 2020. 10 The second is from Dr. E. Kamin. It is dated 11 August 17, 2022, it appears at 3A of the Administrative 12 Transcript. That contains, as his predecessor, moderate 13 limitations noted on the worksheet portion, contains a little 14 more thorough, little more thorough explanation including 15 considering more recent medical treatment records, but 16 upholds the opinion of Dr. Fassler. 17 The third opinion that supports the RFC is from 18 Dr. Sara Long. It's based upon a consultative examination, 19 it is dated April 6, 2022. It appears at 6F of the record, 20 443 to 446. The medical source statement from Dr. Long 21 indicates basically no limitations, including of adequately 22 interacting with others, maintaining attention and 23 concentration and maintaining a regular schedule. It also 24 indicates, "There may be moderate limitations regarding 25 regulating emotions." 1 Those three medical opinions are discussed 2 collectively at page 20 of the Administrative Transcripts by 3 ALJ Theurer. The opinion of -- the opinion of ALJ Theurer 4 finds those to be persuasive, noting that they are -- 5 Dr. Fassler's and Dr. Kamin's opinions are supported by 6 detailed narrative rationale and the rationale cites 7 supporting medical status examination findings and other 8 evidence from the underlying record. I could agree with 9 plaintiff's counsel they could have been more thorough, but 10 it also indicates the medical source statements from Dr. Long 11 is well supported by the detailed findings from her mental 12 status examinations and I agree with that. The findings were 13 generally unremarkable. And thirdly, the opinions in the 14 paragraph are generally consistent with other mental status 15 examinations in the record and it cites many treatment notes 16 to that effect. 17 The other thing I will note is that it's well 18 accepted that even opinions from prior administrative medical 19 findings from nonexamining consultants can supply substantial 20 evidence to support a determination if they are supported 21 themselves. Valdes-Ocasio v. Kijakazi, 2023 WL 3573761 from 22 the Second Circuit, 2023. 23 The contrary opinions come from three, what I will 24 refer to as treating sources. The first is from LCSW Barry 25 Schecter dated August 13, 2023. It is extremely limiting. 1 It indicates that plaintiff is either markedly or extremely 2 limited in virtually all of the domains set out in the form. 3 It's basically a check-box form. It indicates that plaintiff 4 is expected to be off task more than 33 percent of the day 5 and absent three days or more per month. There is relatively 6 little explanation, although there is, on page 485, some 7 explanation which arguably supports that opinion. The 8 administrative law judge considered and rejected that opinion 9 at page 20 and continued on really to page 22. 10 The second is from Dr. Keith Nichols who was 11 plaintiff's original primary care provider. It is dated 12 August 11, 2023, appears at 478 to 480 of the record. And 13 that is even more limiting. It virtually indicates that 14 plaintiff is extremely limited in every one of the domains 15 listed, would be off task more than 33 percent of the day and 16 absent three or more days per month. Those are the maximum 17 categories set forth in the worksheet. And there's very 18 little discussion as to why that is. 19 And the last comes from Dr. Idahosa, 462 to 464. 20 It is not dated, although the questionnaire is dated August 21 of -- August 7, 2023. It's a little bit more varied, some 22 extreme, some marked, and some more than slight limitations. 23 Consistent, though, when it comes to 33 percent of the day 24 off task and three days or more absent. Some explanation 25 again offered. 1 The administrative law judge found those not to be 2 persuasive. Although they are consistent with each other, 3 they are not consistent with underlying treatment notes 4 showing a positive response to mental health counseling and 5 psychotropic medication. They are also inconsistent with 6 mental capacity indicated in claimant's activities of daily 7 living. 8 The administrative law judge goes on to 9 specifically discuss the treatment notes from LCSW Schecter 10 who, it was noted, did not conduct any, did not conduct any 11 psychiatric evaluations. 12 There's also a healthy discussion that continues on 13 page 21 and 22 and explains, in my view, why the 14 administrative law judge did not find those to be persuasive. 15 As you know, in the first instance it is for the 16 administrative law judge, and not the court, to weigh 17 competing medical opinions. Veino v. Barnhart, 312 F.3d 578, 18 Second Circuit 2002. 19 I have reviewed carefully the treatment notes from 20 the two treating providers, two medical doctors, and 21 Therapist Schecter, and while I would -- and as included in 22 1F, 2F, 3F, and 13F. They show, for example, that plaintiff 23 felt his life fell apart during COVID, that's at 467, and he 24 also had anxiety over beginning the Spravato treatment which 25 occurred over four weeks, that's at 427 and 428. But 12/21 1 into 2022, plaintiff denied disability, he was able to 2 formulate plans to open a shop, 399, 403, 405, replete with 3 indications that he volunteered at a food pantry at 392, 396, 4 398, 401. He agreed to become a part of the food pantry 5 team, 397. There was a hiatus in treatment from Therapist 6 Schecter from September 3, 2020 to December 3, 2021, more 7 than one year. That's at 407 to 420. And while he was being 8 treated, Therapist Schecter consistently noted that plaintiff 9 was stable on medications. 10 There was also a hiatus in treatment with 11 Dr. Nichols from October 27, 2020 until April 26, 2021, and 12 again, April 21, 2021 to October 26, 2021. And it appears to 13 me that by February 4, 2022, he was stable on his 14 medications. 15 In sum, the treatment notes of Dr. Nichols, 16 Dr. Idahosa show good response to treatment and medications. 17 There were very few mental status examinations in the record. 18 I find that Dr. Fassler, Dr. Kamin, and Dr. Long's 19 opinions are consistent with each other and with the 20 treatment notes in the record and are well supported. While 21 Dr. Nichols, Dr. Idahosa and Dr. -- and Therapist Schecter, 22 while they are consistent with each other, are not 23 necessarily consistent with the treatment notes. It appears 24 to me based on the record that the reason that plaintiff was 25 unable to open his car repair business is that he was not 1 able to find a mechanic to work, that's at page 420. As I 2 indicated, he does seem to have multiple sessions 3 volunteering at the food pantry. On February 4, 2022, that's 4 at 431 of the record, he indicated he likes the feeling of 5 being with people. The falling apart during the pandemic 6 appears in the intake prepared by June -- on June 6, 2022 by 7 Dr. Idahosa at page 467 where he says his life fell apart 8 during the pandemic. But I think the record clearly shows 9 improvement with medication and treatment. 10 So in sum, I find that the administrative law judge 11 properly evaluated the consistency and supportability factors 12 of the six opinions of record and exercised his judgment to 13 weigh those conflicting opinions and explained his reasoning 14 in a fashion that permits meaningful judicial review. So I 15 will grant judgment on the pleadings to the defendant, order 16 dismissal of plaintiff's complaint, and I will issue a short 17 form order memorializing that determination. 18 Thank you both for excellent presentations, and I 19 hope you enjoy the rest of your summer. 20 MR. GORTON: Thank you, your Honor, take care. 21 (Court Adjourned, 3:27 p.m.) 22 23 24 25 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RMR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 31st day of July, 2025. 17 18 19 /S/ JODI L. HIBBARD 20 JODI L. HIBBARD, RMR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25