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Worthy v. Berryhill

United States District Court, D. Connecticut

March 27, 2017

ERROLL D. WORTHY, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, [1]Defendant.

          ORDER

          Stefan R. Underhill United States District Judge.

         On December 1, 2015, the plaintiff, Erroll Worthy, filed a complaint seeking review of the Social Security Commissioner's decision to deny his application for Disability Insurance Benefits. (doc. 1) The parties have subsequently filed cross-motions seeking to overturn and affirm the Commissioner's decisions respectively. (docs. 12 and 14) On July 21, 2016, I held a hearing on those motions.

         For the following reasons, I deny Worthy's motion for a remand and grant the Commissioner's motion to affirm.

         I.Standard of Review

         A district court may enter a judgment “affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Judicial review of the Commissioner's decision is limited. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). It is not the court's function to determine de novo whether the claimant was disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Rather, the court must review the record to determine first whether the correct legal standard was applied and then whether the record contains substantial evidence to support the decision of the Commissioner. 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”); see Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).

         When determining whether the Commissioner's decision is supported by substantial evidence, the court must consider the entire record, examining the evidence from both sides. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). Substantial evidence need not compel the Commissioner's decision; rather substantial evidence need only be evidence that “a reasonable mind might accept as adequate to support [the] conclusion” being challenged. Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002) (internal quotation marks and citations omitted). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (internal quotation marks and citation omitted).

         II. Background

         The parties have filed a joint stipulation of the facts and procedural history in this case. Joint Stipulation, (doc. 13-1). The pertinent portions are summarized below.

         A. Factual Background

         Worthy is a high school graduate born in 1966. His only past relevant work was as a trash collector. Worthy asserts that he has been disabled since September 2, 2006, see Compl. at ¶ 4; however, the joint medical history does not identify any specific diagnoses or injuries before May 2012, apparently because a previous negative ALJ decision prohibits him from recovering through that date. The Joint Stipulation suggests that the root cause of Worthy's disabilities was a work-related injury.

         In February 2012, before the period described by the joint stipulation, Worthy was admitted to a rehabilitation program for mood disorder and cannabis dependence, but was discharged after one session for non-compliance. (R. at 433-45)

         In May 2012, Worthy complained of an inability to sleep, but examination and follow-up studies of his spinal nerves found no irregularities. In June 2012, he presented with chronic neck pains and spasms, and was diagnosed with chronic pain, depression and anxiety, and hypertension. Worthy was provided with a range of pain medications. He also reported that he had been working out twice weekly, walking, and staying active. (R. at 452) In September 2012, Worthy presented with an abnormally fast heart rate, and was referred for additional studies and given refills on his pain medications. On October 3, 2012, he reported that his pain was “under control” on the medications. It appears that Worthy continued to complain about pain in his neck and back, for which his pain medications were continually refilled through the date of the ALJ hearing.

         In October 2013, Worthy was seen for depression in addition to his pain complaints. In November 2013, Worthy underwent a lumbar spine MRI, which revealed compression of various spinal nerves and a discomfort-causing deterioration of the facet joints in the spine. In January 2014, Worthy also reported that he had been doing construction work from June through August of 2013. (R. at 645) He stated, however, that engaging in that work had worsened his pain symptoms. Id. In addition to his chronic pain, he was also diagnosed with a kidney disease at that time.[2]

         1. Dr. Franklin-Zitzkat's Report

         On August 2, 2013, Dr. Liese Franklin-Zitzkat, the Social Security Administration's Examining Psychologist, examined Worthy. (R. at 601-605) She diagnosed a major depressive disorder and an anxiety disorder. She observed that Worthy had “exhibited only mild difficulty” with a task assessing short-term memory, but based on his self-reporting, she determined that he would have “moderate to marked difficulty” remembering instructions and maintaining concentration at work or withstanding the stress of an average work day. She observed that those conditions might improve if Worthy returned to work.

         There appear to be no other evaluations of Worthy's concentration and memory based on in-person examination in the record.

         2. Dr. Jonas' Report

         On February 26, 2014, Dr. Elizabeth Jonas completed a Spinal Impairment Questionnaire on Worthy. (R. at 673-85)[3] She indicated that she had been treating Worthy since before March 27, 2013, which is borne out by records showing her treatment in May 2012, (R. at 459-60), and that she had seen him approximately every four months. She diagnosed “severe lumbar and cervical degenerative disk disease” and “chronic pain syndrome, ” and observed that Worthy's prognosis was “poor.” She stated that her conclusions were based on MRIs in November 2013 and May 2010. On the basis of those diagnoses, Dr. Jonas indicated that Worthy could sit for only one hour per eight-hour workday, and could stand between zero and one hours. She indicated that he could never lift or carry any weight, including in the zero-to-five pound range, that he could not tolerate even “low stress” work, and that he would need to take 15-20 minute breaks every half hour and take time off more than three times per month. She did not discuss how Worthy's previous self-reported periods of work and exercise comported with those conclusions, nor did she discuss Worthy's assertion to an examining physician in October 2013 that he could lift or carry no more than ten to fifteen pounds. (R. at 607) She also did not indicate that Worthy suffered from any psychological limitations to work.

         Following the submission of her report, on September 10, 2014, Jonas indicated in a treatment note that Worthy reported that he had been “[m]oving and working at odd jobs a lot.” (R. at 770) Jonas was not asked to update or reconcile her opinion with that information.

         3. Dr. Guarnaccia's Report

         On September 17, 2013, Dr. Joseph Guarnaccia examined Worthy at the behest of the Social Security Administration. (R. at 607-610) Worthy reported experiencing pain constantly in his lower back, (R. at 607), and using a cane “occasionally, ” (R. at 608). On the basis of his examination, Dr. Guarnaccia diagnosed Worthy with chronic lower back pain, migraine headaches, and unexplained numbness of the left arm. (R. at 610) He opined that Mr. Worthy would not be able to perform work activities that require “extending walking, standing, bending, lifting, or carrying.” Id.

         4. Non-Examining Physicians

         Worthy's file was also reviewed by several non-examining physicians at the request of the State Agency. With respect to Worthy's physical limitations, both Dr. Virginia Rittner, who reviewed the file on September 18, 2013 before Dr. Jonas' report, and Dr. Kurshid Khan, who reviewed the file on February 3, 2014 after the Jonas report, determined that Worthy had the following exertional limitations: lifting twenty pounds occasionally and ten pounds frequently; sitting and standing for six hours each in an eight-hour workday; and occasionally performing postural activities, such as stooping, kneeling, and crouching. See (R. at 155-57, 172-73).

         With respect to Worthy's mental limitations, Dr. Warren Lieb, who reviewed the file on August 16, 2013 and after Dr. Franklin-Zitzkat's report, [4] noted that Worthy's claimed problems with memory were not supported in the record, but observed that he would have some “moderate” limitations in his ability to carry out detailed instructions, maintain concentration for a long period of time, or interact appropriately with the general public. (R. at 157-58) Dr. Adrian Brown, who reviewed the file on February 7, 2014, came to similar conclusions. (R. at 188-90)

         B. Proce ...


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