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Stergue v. Colvin

United States District Court, D. Connecticut

May 19, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Plaintiff Kathryn Ferris Stergue brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance and supplemental security income benefits. Magistrate Judge Martinez has issued a recommended ruling that plaintiff’s motion to reverse the Commissioner’s decision be denied and that defendant’s motion to affirm the decision be granted. Plaintiff has filed an objection to the recommended ruling and defendant has responded. For reasons that follow, the recommended ruling is approved and adopted.

         I. Background

         Between 1988 and the mid-2000s, plaintiff was employed as a dental hygienist. Since then, her ability to work has been adversely affected by a number of impairments. Symptoms of fibromyalgia, which plaintiff has experienced since the mid- 1990s, worsened after a cerebral hemorrhage in 2004. R. 851-52. Obesity contributed to pain in her back, legs and neck and complicated other ailments. She experienced edema in her legs, developed degenerative disc disease in her back, and had trouble in her left shoulder that compromised her range of motion. Id. This constellation of problems increased in severity after she had a bad fall and car accident. Id. Emotional distress accompanied the plaintiff's physical infirmities: she began to suffer from depression and anxiety attacks, which occasionally caused her to remain in bed for a day or two at a time. Id.

         Plaintiff’s troubles prevented her from continuing to work as a dental hygienist and she has not been formally employed for any significant period of time since 2006. In the years since, a number of doctors, including mental health professionals, have credited her complaints and documented her struggles. R. 853-56. But at the same time, plaintiff has almost never been unable to function from day to day. At various points since she stopped working as a hygienist, she has been able to serve as primary caregiver to her sick father, to socialize, and to work for a dog-walking business she started with her roommate. R. 857. She has also regularly participated in religious services and instructed others in Bible study.

         The plaintiff filed her first application for disability benefits in 2007. After several years of review at multiple levels and the filing of two more applications, an administrative law judge (“ALJ”) determined that plaintiff was not disabled and denied her applications for disability insurance and supplemental security income benefits.

         Plaintiff contends that the ALJ erred in his determination that she is not disabled. Her argument rests on four different grounds. First, she argues that the ALJ erred in assessing the severity of her impairments. Second, she argues that the ALJ improperly declined to credit some of her testimony. Third, she argues that the ALJ failed to comply with the treating physician rule. Finally, she contends that the ALJ should have called a vocational expert to determine whether she is able to work instead of relying on the Medical Vocational Guidelines. In the recommended ruling, Magistrate Judge Martinez concludes that the ALJ’s finding should be affirmed over plaintiff’s objections.

         II. Standard of Review

         This Court may set aside the ALJ’s decision "only if the factual findings are not supported by substantial evidence or if the decision is based on legal error." Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation marks omitted). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010). This Court's role is not to reweigh the evidence. Rather, the ALJ’s decision must be affirmed "if it is based upon substantial evidence even if the evidence would also support a decision for the plaintiff." Bellamy v. Apfel, 110 F.Supp.2d 81, 87 (D. Conn. 2000). When a decision “rests on adequate findings supported by evidence having rational probative force, ” a court may “not substitute [its] judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).

         III. Discussion

         A person who is disabled is entitled to benefits under the Social Security Act. 42 U.S.C. §§ 423(a)(1), 1381a. A "disability" is "an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Under the Social Security regulations, determining whether an individual is disabled entails five steps:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a 'severe impairment' which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a 'listed' impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work that the claimant could perform.

Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983). With respect to the first four steps, the claimant bears the burden of proof. But once the claimant shows at the fourth step that she cannot perform her past work, the burden shifts to the Commissioner at step five to show the existence of other work suited to the claimant's abilities. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008).

         In this case, the ALJ's five-step evaluation proceeded as follows. First, he found that plaintiff had not engaged in substantial gainful activity since December 2006. He then found that she suffered from a number of "severe impairments, " including fibromyalgia, shoulder impingement, obesity, episodes of cellulitis, sleep apnea, depression, panic disorder, and obsessive-compulsive disorder. The ALJ found that these impairments did not meet or medically exceed the "listed impairments" in 20 CFR, Pt. 404. R. 849. He determined that the plaintiff had the "residual functional capacity to perform sedentary work . . . except she can only frequently use her upper extremities for reaching. She is limited to simple instructions and can perform routine, repetitive tasks." R. 850. At step four, the ALJ found that plaintiff could not perform her past relevant work as a dental hygienist. At step ...

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