United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION TO REVERSE THE
DECISION OF THE COMMISSIONER AND ON DEFENDANT'S MOTION TO
AFFIRM THE DECISION OF THE COMMISSIONER
Glazer Margolis United States Magistrate Judge
action, filed under ' 205(g) of the Social Security Act,
42 U.S.C. §§ 405(g) and 1383(c)(3), as amended,
seeks review of a final decision by the Commissioner of
Social Security [“SSA”] denying plaintiff
Disability Insurance Benefits ["DIB"] and
Supplemental Security Income ["SSI"] benefits.
April 22, 2013, plaintiff filed an application for DIB and
SSI benefits claiming that he has been disabled since August
1, 2004, which date was later amended to September 6, 2012,
due to heart failure and low back pain. (Certified Transcript
of Administrative Proceedings, dated November 13, 2015
[“Tr.”] 94, 247-63, 355; see also Tr.
110, 305, 322, 330). Plaintiff's applications were denied
initially and upon reconsideration (Tr. 137-70; see
Tr. 108-09, 130-31), and on January 6, 2014, plaintiff filed
his request for a hearing before an Administrative Law Judge
["ALJ"]. (Tr. 171-72; see Tr. 173-79). A
hearing was held on April 21, 2015, before ALJ Alexander
Peter Borré, at which plaintiff and vocational expert
Stephen Sachs testified. (Tr. 37-93; see Tr.
193-246; see also Tr. 353-54). Plaintiff has been
represented by counsel. (Tr. 133, 135). On May 12, 2015, ALJ
Borré issued his decision finding that plaintiff has
not been under a disability from September 6, 2012 through
the date of his decision. (Tr. 17-32). On July 14, 2015,
plaintiff filed his request for review of the hearing
decision (Tr. 7; see also Tr. 8-16), and on August
26, 2015, the Appeals Council denied plaintiff's request
for review, thereby rendering the ALJ's decision the
final decision of the Commissioner. (Tr. 1-3).
October 7, 2015, plaintiff filed his complaint in this
pending action. (Dkt. #1).On October 22, 2015, the parties
consented to jurisdiction before this Magistrate Judge, and
the case was transferred accordingly. (Dkt. #13). On December
8, 2015, defendant filed her answer, along with a copy of the
1, 186 page administrative record. (Dkt. #14).Thereafter, on
February 22, 2016, plaintiff filed his Motion to Reverse the
Decision of the Commissioner, with brief in support (Dkt.
#18), along with a Stipulation of Facts (Dkt. #19), and on
April 22, 2016, defendant filed her Motion to Affirm, with
brief in support. (Dkt. #21).
reasons stated below, plaintiff's Motion to Reverse the
Decision of the Commissioner (Dkt. #18) is granted such
that this case is remanded consistent with this Ruling,
and defendant's Motion to Affirm the Decision of the
Commissioner (Dkt. #21) is denied.
ACTIVITIES OF DAILY LIVING AND HEARING TESTIMONY
time of his hearing, plaintiff was living with his
fiancée and stepson; he also has a teenage son who
lives with the son's mother. (Tr. 48, 50). Plaintiff was
homeless for a period of time, but with the help of others,
plaintiff and his family eventually moved into an apartment.
(Tr. 52-53). His fiancée does the cleaning and
shopping (Tr. 83-84, 315), and plaintiff cooks and washes
dishes, vacuums and makes his bed. (Tr. 314-15). During a
typical day, plaintiff does crossword puzzles and watches
television. (Tr. 316).
is a high school graduate. (Tr. 54). At the time of the
hearing, plaintiff was working three days a week at
Denny's as a dishwasher. (Tr. 52-55; see Tr.
289). He works between four and five hours a shift,
"because [he cannot] do much more than that without
hurting." (Tr. 52-53, 55). According to plaintiff, his
employer is "pretty good with [him] because . . . they
know [his] situation, " and they are "kind of
working with [him]." (Tr. 53). The waitresses bring him
the dishes, and at most he carries four or five plates within
his small work area that he described as a
"square[.]" (Tr. 66). Plaintiff testified that he
can lift "[m]aybe" five or ten pounds. (Tr. 71).
According to plaintiff, when he lifts or carries items, he
experiences shooting pain and his arm will just drop. (Tr.
69, 72). He cannot clean the parking lots, take out grease,
or fill the ice machine, but he can clean the bathrooms,
although not the toilets. (Tr. 55). Prior to working for
Denny's, he worked as a janitor (Tr. 54; see Tr.
288), in maintenance at a car dealership, as an assembly
worker, and as a cook. (Tr. 306).
to plaintiff, he "sometimes" takes fifteen minute
breaks and he cannot work sitting down because of his
"[b]ack issues." (Tr. 56). For the same reason, he
does not drive often. (Tr. 57). During a four hour shift, he
sits down probably three times for ten or fifteen minutes at
a time. (Tr. 79). He also testified that he can sit for
"maybe five, [ten] minutes" (Tr. 67), can stand
for ten or fifteen minutes (Tr. 70), and can walk for ten or
fifteen minutes before having to stop to rest. (Tr. 318). He
provided his employer with a doctor's note that says he
should take more frequent breaks. (Tr. 79). Additionally, he
takes frequent bathroom breaks due to his medication. (Tr.
rates his back pain as a ten on a scale to ten, and reported
that sleeping "is very hard" due to his back
pain. (Tr. 57; see also Tr. 60-61 (back pain is
"always there"), 313 (has a "sleep
disorder")). He cannot stoop or bend because of his
back. (Tr. 74-75). He finds it "hard to really
constantly stand up or walk far or climb stairs without [his]
heart feeling like it's beating out [his] chest."
(Tr. 57). Plaintiff testified that he has pain in his feet,
for which he needs surgery, and it is "painful to
stand[.]" (Tr. 58). When walking, he stops and leans on
something to rest. (Tr. 67). Sometimes he has to leave work
early because after three hours, it is just "too much
for" him (Tr. 78), and he cannot stand as long as he
needs to. (Id.). According to plaintiff, his
impairments affect his ability to lift, squat, bend, stand,
reach, walk, sit, kneel, climb stairs, complete tasks,
remember, understand, follow instructions, use his hands, and
concentrate. (Tr. 317).
plaintiff is seen by doctors for heart issues and he
experiences dizziness which causes him to need to take breaks
at work. (Tr. 59-60; see Tr. 313 (dizzy spells, out
of breath)). He also experiences dizzy spells when
doing household chores. (Tr. 315). He has a defibrillator.
(Tr. 68). Plaintiff also has shortness of breath (Tr. 60),
and at times, he feels sharp pain or fluttering in his chest.
(Tr. 82; see Tr. 318). He testified that he has a
"little bit of asthma going on" but he stopped
using an inhaler; he "didn't pursue it." (Tr.
63). Plaintiff smokes a pack of cigarettes every two to three
days (id.), but he is bothered by fumes and heat,
the latter of which makes him dizzy. (Tr. 64-65). According
to plaintiff, if it gets too hot when he is working, they
send him home. (Tr. 65).
vocational expert testified at plaintiff's hearing that
plaintiff's past work as a janitor was semi-skilled
medium level work, as a server was light work, as a
dishwasher was medium work, and as a food prep worker was
light work. (Tr. 86). The vocational expert then testified
that a person can perform the work of a server and could
perform food prep work if the individual is limited to light
work, but is not able to climb ladders, ropes and
scaffolding, must avoid hazards such as open, moving
machinery and temperature extremes, and is limited to
occasional climbing of ramps and stairs, occasional
balancing, stooping, kneeling, crouching and crawling. (Tr.
86-87). Additionally, a person with such limitations could
also perform the work of a hand packer, production worker, or
production inspector. (Tr. 87). If such a person was limited
to sedentary work, he could perform the work of a hand
packager or production worker (Tr. 88), and if such a person
was off task approximately fifteen percent of the workday for
unscheduled breaks due to either back pain, or just to catch
their breath, such a person could not work. (Tr. 88-89).
Similarly, if such a person were absent two or more days a
month, such a person could not work. (Tr. 89).
CHRONIC HEART FAILURE
was first diagnosed with cardiomegaly and congestive heart
failure ["CHF"] ¶ 2002-03, when plaintiff was
seen at the Hospital of Central Connecticut
["HCC"](formerly known as New Britain Hospital)
Emergency Department on several occasions. (See Tr.
544-58, 573, 574, 576, 596; see generally Tr.
591-95, 797). Most of plaintiff's care has been through
HCC's Emergency Department, its Medical Clinic, or its
Cardiology Clinic. On October 20, 2002, plaintiff was
diagnosed with cardiomegaly. (Tr. 596). Less than two months
later, on December 8, 2002, plaintiff presented to the
Emergency Department with pneumonia (Tr. 646-48; see
Tr. 883-87); he was admitted and over the course of the next
three days (see Tr. 649-76), he was found to have
dyspnea (Tr. 655-56), acute CHF (Tr. 573, 655, 881;
see Tr. 574), a severely reduced left ventricular
ejection fraction ["LVEF"](Tr. 658), systolic
dysfunction of major proportion (Tr. 657), systemic
hypertension (id.), and morbid obesity
(id.). Three days later, he was noted again to have
an enlarged heart and interval decrease in CHF. (Tr. 574,
661). He was discharged with diagnoses of acute congestive
heart failure, cardiomyopathy, upper respiratory viral
syndrome, and hypertension. (Tr. 881-82).
February 10 and 11, 2003, plaintiff was found to have CHF, in
part due to medication noncompliance, dilated cardiomyopathy,
morbid obesity, and hypertension. (Tr. 566, 839-40;
see Tr. 567-69, 841-55). On April 29, 2003, he
presented to the Emergency Department with shortness of
breath. (Tr. 548).
2, 2004, he underwent a Treadmill Exercise Study (Tr.
386-87), the results of which were "[a]bnormal."
(Tr. 387). At that time, he had a diagnosis of biventricular
cardiomyopathy with severe reduction of left ventricle
["LV"] function, as well as both mitral and
tricuspid regurgitation. (Tr. 386). An echocardiogram
["ECG"] performed on July 8, 2004 revealed dilated
cardiomyopathic LV with biatrial dilation. (Tr. 388).
was hospitalized with bronchitis, dilated cardiomyopathy, and
obstructive sleep apnea ["OSA"] from January 16 to
January 18, 2005. (Tr. 856-80; see Tr. 799-802). The
results of an ECG taken January 17, 2005 revealed severe
dilated cardiomyopathy with severe LV dysfunction. (Tr. 868).
On October 5 and 6, 2005, plaintiff was again diagnosed with
CHF, hypertension, hyperlipidemia, and OSA, with a past
history of cocaine use and then current marijuana use. (Tr.
815-16; see Tr. 817-38).
presented to the Emergency Department on February 1, 2009
(see Tr. 375-85) with chest pain; his LVEF was
moderately decreased to an estimate of 30-35%, with LV cavity
moderately to severely increased. (Tr. 375).
September 6, 2012, plaintiff was admitted to HCC from the
Emergency Department with chest pain (Tr. 406, 412, 624;
see Tr. 403-15, 505, 508-18, 623-29, 692-703),
what would be the start of more regular medical treatment for
his cardiac and other conditions. At that time, he was
morbidly obese with a BMI of 38. (Tr. 514, 516, 626, 628).
The record includes reference to an ejection fraction
[“EF”] by echocardiogram in 2010 of less than
20%. (Tr. 510, 622). He was diagnosed with chronic systolic
congestive heart failure, cardiomyopathy in a setting of a
remote history of myocarditis, with an EF of approximately
20%, with hypertension. (Tr. 510, 515, 622, 627). The next
day, plaintiff underwent a cardiac catheterization; his
doctors concluded that he had "[s]evere
cardiomyopathy[.]" (Tr. 506-07, 618-19; see Tr.
807). An echo 2-D doppler test performed the same day
revealed that the LVEF was severely decreased globally with
regional disparities, the LVEF was estimated to be 25-30%,
the left ventricular cavity size was severely increased,
there was mild concentric left ventricular hypertrophy, and
mild mitral regurgitation with mildly dilated left atrium.
(Tr. 518-20, 630-32).
was seen in the Cardiology Clinic on September 14, 2012
(see Tr. 501-04, 613-16) for resumption of care; he
reported feeling "generally well" and denied any
chest discomfort or shortness of breath. (Tr. 501, 613).
Catherine Callan, APRN, saw him in the clinic on September
27, 2012 (see Tr. 497-500, 609-12), at which time he
could walk two blocks without shortness of breath, and he
denied any chest pain, palpitations, presyncope, syncope,
orthopnea, night-time shortness of breath, edema, or
claudication. (Tr. 497, 609). The catheterization showed
LVEDP of 26, and EF less than 20%, and APRN Callan assessed
nonischemic cardiomyopathy and New York Heart Association
["NYHA"] Class II heart failure. (Tr. 498, 610). On
October 15, 2012 (see Tr. 494-96, 606-08), plaintiff
reported that he was feeling "very well" overall.
(Tr. 494, 606). His walking limit without shortness of breath
was still two blocks; an examination revealed regular heart
rate and rhythm, with no murmurs, rubs, gallops, or thrills,
and no edema in his extremities, and APRN Callan assessed
chronic systolic dysfunction and NYHA Class II heart failure.
(Tr. 495, 607; see Tr. 491-93, 603-05).
April 10, 2013, when seen at the Cardiology Clinic (Tr.
487-89, 597-99, 951-53), plaintiff again reported
difficulties with insurance. (Tr. 487, 597, 951). He had run
out of his medications for a time, but reported that once he
resumed his medications, he regained his energy.
(Id.). He had shortness of breath climbing two
flights of stairs as well as tying his shoes. (Id.).
On examination, his heart rate and rhythm were regular, and
there were no murmurs, rubs, ...