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Depoto v. Colvin

United States District Court, D. Connecticut

January 31, 2017

DAWN M. DEPOTO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS

          STEFAN R. UNDERHILL, UNITED STATES DISTRICT JUDGE

         In the instant Social Security appeal, Dawn Depoto moves to reverse the decision by the Social Security Administration (SSA) denying her disability insurance benefits. The Commissioner of Social Security moves to affirm the decision. Because the decision by the Administrative Law Judge (ALJ) was supported by substantial evidence, I grant the Commissioner's motion and deny Depoto's.

         I. Standard of Review

         The SSA follows a five-step process to evaluate disability claims. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). First, the Commissioner determines whether the claimant currently engages in “substantial gainful activity.” Greek v. Colvin, 802 F.3d 370, 373 n.2 (2d Cir. 2015) (per curiam) (citing 20 C.F.R. § 404.1520(b)). Second, if the claimant is not working, the Commissioner determines whether the claimant has a “‘severe' impairment, ” i.e., an impairment that limits his or her ability to do work-related activities (physical or mental). Id. (citing 20 C.F.R. §§ 404.1520(c), 404.1521). Third, if the claimant does have a severe impairment, the Commissioner determines whether the impairment is considered “per se disabling” under SSA regulations. Id. (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). If the impairment is not per se disabling, then, before proceeding to step four, the Commissioner determines the claimant's “residual functional capacity” based on “all the relevant medical and other evidence of record.” Id. (citing 20 C.F.R. §§ 404.1520(a)(4), (e), 404.1545(a)). “Residual functional capacity” is defined as “what the claimant can still do despite the limitations imposed by his [or her] impairment.” Id. Fourth, the Commissioner decides whether the claimant's residual functional capacity allows him or her to return to “past relevant work.” Id. (citing 20 C.F.R. §§ 404.1520(e), (f), 404.1560(b)). Fifth, if the claimant cannot perform past relevant work, the Commissioner determines, “based on the claimant's residual functional capacity, ” whether the claimant can do “other work existing in significant numbers in the national economy.” Id. (20 C.F.R. §§ 404.1520(g), 404.1560(b)). The process is “sequential, ” meaning that a petitioner will be judged disabled only if he or she satisfies all five criteria. See id.

         The claimant bears the ultimate burden to prove that he or she was disabled “throughout the period for which benefits are sought, ” as well as the burden of proof in the first four steps of the inquiry. Id. at 374 (citing 20 C.F.R. § 404.1512(a)); Selian, 708 F.3d at 418. If the claimant passes the first four steps, however, there is a “limited burden shift” to the Commissioner at step five. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). At step five, the Commissioner need only show that “there is work in the national economy that the claimant can do; he need not provide additional evidence of the claimant's residual functional capacity.” Id.

         In reviewing a decision by the Commissioner, I conduct a “plenary review” of the administrative record but do not decide de novo whether a claimant is disabled. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam); see Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam) (“[T]he reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.”). I may reverse the Commissioner's decision “only if it is based upon legal error or if the factual findings are not supported by substantial evidence in the record as a whole.” Greek, 802 F.3d at 374-75. The “substantial evidence” standard is “very deferential, ” but it requires “more than a mere scintilla.” Brault, 683 F.3d at 447-48. Rather, substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Greek, 802 F.3d at 375. Unless the Commissioner relied on an incorrect interpretation of the law, “[i]f there is substantial evidence to support the determination, it must be upheld.” Selian, 708 F.3d at 417.

         II. Facts

         Drawn Depoto applied for Social Security disability insurance benefits on September 14, 2012, alleging that she had been disabled since August 10 of the same year. ALJ Decision, R. at 24. Depoto-who had been injured in a car accident in November 2011, id. at 30-identified her disabilities as, among other things, “obesity, degenerative disc disease of the cervical spine, anxiety disorder, depressive disorder, and lumbosacral spondylosis without myelopathy.” See Id. at 27; Compl., Doc. No. 1, at ¶ 4. The SSA initially denied Depoto's claim on December 18, 2012, finding that although Depoto's “condition result[ed] in some limitations in [her] ability to perform work related activities, . . . [her] condition [was] not severe enough to keep [her] from working.”[1] Disability Determination Explanation (Initial), R. at 125. The SSA adhered to its decision upon reconsideration on March 13, 2013.[2] Disability Determination Explanation (Reconsideration), R. at 138. Depoto then requested a hearing before an ALJ, which was held on January 7, 2014. Id.

         At the hearing, ALJ Matthew Kuperstein questioned Depoto and her attorney regarding Depoto's receipt of unemployment benefits, Tr. of ALJ Hr'g, R. at 52, as well as her claim to have taken off time from work following her car accident. Id. at 53. ALJ Kuperstein noted that Depoto's “earning[s] record [did] not show[] . . . a reduction in [her] earnings, ” and agreed to “leave the record open for two weeks [so that she] c[ould] supply the pay stubs for 2012.” Id. at 54. He later warned Depoto's attorney that the issue whether Depoto had taken time off work pertained to her “credibility, ” because he “want[ed] to see if she [was] telling the truth . . . or if she [was] lying to [him].” Id. at 110. Despite the warning, Depoto did not submit pay stubs during the additional period the ALJ left the record open. ALJ Decision, R. at 24.

         The ALJ also questioned Depoto about other claimed ailments, some of which she appears to have abandoned on her current petition for review. For example, Depoto asserted that she suffered from carpal tunnel syndrome, which caused her to “drop things all the time” and prevented her from “lift[ing] more than two pounds.” Tr. of ALJ Hr'g, R. at 55-56. The ALJ observed that he “d[id]n't see any diagnosis . . . for [carpal tunnel syndrome], ” that he “d[id]n't see any treatment for it, ” and that he therefore “d[id]n't see any basis for any limitations regarding it.” Id. at 75. The ALJ also pressed Depoto with respect to her alleged incontinence: she claimed that she “wet [her]self . . . about 20 times during the week, ” but-to the ALJ's evident surprise-“still [did] not wear[] diapers.” Id. at 83. With those physical disabilities, as well as Depoto's pain and mental impairment, the ALJ stated that he “just d[id]n't see . . . [t]he extent [of] th[o]se limits . . . in the record.” Id. at 78.

         The ALJ also heard testimony from a vocational expert, John Bopp. The ALJ presented Bopp with a hypothetical of Depoto's characteristics, i.e., a person who “was limited to light exertional work with . . . standing and walking no more than four hours cumulative during an[] eight-hour workday, ” who was “limited to only occasional climbing ramps and stairs, balancing, stooping, kneeling, crouching or crawling, ” and who could only perform “work that involve[d] understanding, remembering and carrying out simple instructions and making simple work-related decisions.” Id. at 91. Bopp testified that such a person could be employed in a number of jobs, such as “surveillance system monitor, . . . cutter and paster, . . . charge account clerk, . . . [t]elephone quotation clerk, . . . toy stuffer, . . . [e]yeglass frame polisher . . ., table worker, . . . [and] order clerk.” Id. at 94. On examination by Depoto's attorney, Bopp added that if the hypothetical person “were limited to lifting up to 10 pounds occasionally and . . . needed to get up and move around every 10 minutes for five minutes, and . . . were further limited to only occasional reaching, ” no work would be available for her in the national economy. Id. at 100-01.

         After the hearing, on April 29, 2014, the ALJ issued an opinion in which he found that Depoto “ha[d] not been under a disability, as defined in the Social Security Act, from August 10, 2012, through the date of th[e] decision.” ALJ Decision, R. at 36-37. At the first step, the ALJ found that Depoto “ha[d] not engaged in substantial gainful activity since . . . the alleged onset date.” Id. at 27. At the second step, the ALJ found that Depoto's “obesity, degenerative disc disease of the cervical spine, anxiety disorder, depressive disorder, and lumbosacral spondylosis without myelopathy” were “severe impairments” that “ha[d] been diagnosed by approved medical sources and confirmed by clinical findings and diagnostic testing.”[3] Id. At the third step, the ALJ determined that Depoto's impairments were not “per se disabling” because Depoto “d[id] not have the requisite neurological deficits” under SSA regulations.[4] Id. at 28-30. The ALJ then assessed Depoto's residual functional capacity based on the evidence in the record, and found that she could “perform sedentary work . . . except” that she “[was] limited to occasional climbing of ramps and stairs and occasional stooping, kneeling, crouching, or crawling; . . . never climbing ladders, ropes, or scaffolds; . . . frequent rather than constant handling, fingering, or feeling; and . . . work involving understanding, remembering, and carrying out simple instructions and simple work related decisions.” Id. at 30.

         Although Depoto's residual functional capacity would not allow her “to perform any past relevant work, ” ALJ Kuperstein determined that “there are jobs that exist in significant numbers in the national economy that [Depoto] c[ould] perform.” Id. at 35. Relying on “the testimony of the vocational expert, ” the ALJ ruled that Depoto “[was] capable of making a successful adjustment to other work that exists in significant numbers in the national economy, ” and that “[a] finding of ‘not disabled' [was] therefore appropriate.” Id. at 36. He denied Depoto's request for Social Security disability insurance benefits. Id. at 37.

         Depoto requested review by the SSA's Appeals Council on May 13. Request for Review of Hearing Decision/Order, R. at 20. Concluding that there was “no reason . . . to review the [ALJ]'s decision, ” the Appeals Counsel “denied [Depoto's] request for review” on December 16, 2015. Notice of Appeals Council Action, R. at 6. Depoto then filed a complaint in this court on February 16, 2016, requesting that I reverse the Commissioner's decision. Compl., Doc. No. 1.

         III. Discussion

         On appeal, Depoto does not challenge the ALJ's findings that Depoto “ha[d] not engaged in substantial gainful activity since . . . the alleged onset date, ” ALJ Decision, R. at 27; that she suffered from a number of “severe impairments, ” such as “obesity, degenerative disc disease of the cervical spine, anxiety disorder, depressive disorder, and lumbosacral spondylosis without myelopathy, ” id.; that her ailments were not “per se disabling, ” id. at 28-30; and that “there are jobs that exist in significant numbers in the national economy” that a person with the residual functional capacity ...


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