United States District Court, D. Connecticut
ERROLL D. WORTHY, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
R. Underhill United States District Judge.
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
following reasons, I deny Worthy's
motion for a remand and grant the
Commissioner's motion to affirm.
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).
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
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.
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.
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)
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.
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.
Dr. Franklin-Zitzkat's Report
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
appear to be no other evaluations of Worthy's
concentration and memory based on in-person examination in
Dr. Jonas' Report
February 26, 2014, Dr. Elizabeth Jonas completed a Spinal
Impairment Questionnaire on Worthy. (R. at
673-85) 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.
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.
Dr. Guarnaccia's Report
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
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).
respect to Worthy's mental limitations, Dr. Warren Lieb,
who reviewed the file on August 16, 2013 and after Dr.
Franklin-Zitzkat's report,  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)