United States District Court, D. Connecticut
RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE
R. UNDERHILL, UNITED STATES DISTRICT JUDGE
instant Social Security appeal, Maria Adelaide Queiroga 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 Queiroga's.
Standard of Review
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
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.
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.
Adelaide Queiroga applied for Social Security disability
insurance benefits on July 26, 2012, alleging that she had
been disabled since March 1, 2011. ALJ Decision, R. at 18.
Queiroga identified her disabilities as “[n]eck and
spine issues” and “vertigo.” See
Disability Determination Explanation (Initial), R. at 98.
Because Queiroga “last met the insured status
requirements of the Social Security Act on December 31, 2011,
” ALJ Decision, R. at 21, she may receive disability
benefits now only if she suffers from a “continuous
disability” that “began before th[e] date”
on which her “‘insured status' lapsed.”
See Arnone v. Bowen, 882 F.2d 34, 38 (2d Cir. 1989).
“[R]egardless of the seriousness of [her] present
disability, unless [Queiroga] became disabled before
[December 31, 2011], [s]he cannot be entitled to
initially denied Queiroga's claim on September 12, 2012,
finding that although Queiroga's “condition
resulted in some limitations in [her] ability to perform work
related activities, . . . [her] condition was not disabling
on any date through [December 31], 2011 when [she] w[as] last
insured for disability benefits.” Disability
Determination Explanation (Initial), R. at 106. The SSA
adhered to its decision upon reconsideration on December 13,
2012.Disability Determination Explanation
(Reconsideration), R. at 117. Queiroga then requested a
hearing before an ALJ. An initial hearing was held on July
24, 2013, and a supplemental hearing (with a vocational
examiner newly present) was held on January 23, 2014. Tr. of
ALJ Hr'g (July 24, 2013), R. at 65; id. (Jan.
23, 2014), R. at 35. Both hearings were conducted with the
assistance of a Portuguese interpreter. See Id . at
first hearing, ALJ Matthew Kuperstein questioned Queiroga and
her attorney about her ability to communicate in English,
of ALJ Hr'g, R (July 24, 2013), and her claim that her
vertigo caused her to “lose [her] balance” and
“immediately fall down.” Id. at 90. The
ALJ suggested to Queiroga and her attorney that she consider
seeking “a closed period” of disability
benefits-i.e., one that would terminate when her condition
improved-because he “d[id]n't see much from the
treatment regarding the difficulty working . . . since . . .
[her] surgery.” Id. at 93-94; see Id
. at 94 (“I know she's complaining of . . .
some neck pain, ongoing neck pain, but it doesn't seem
that significant from what I'm seeing from the
doctor's notes . . . .”). After consultation with
her attorney, Queiroga declined to seek a closed period.
Id. at 95.
supplemental hearing, the ALJ asked Queiroga more about the
nature of her past work Tr. of ALJ Hr'g (Jan. 23, 2014),
R. at 39-42, and about whether her condition had deteriorated
since the previous hearing. Id. at 43-44. Queiroga
made additional complaints about her hearing and pain in her
ear and neck. Id. at 44-45. She also stated that,
due to her vertigo, she “g[o]t dizzy and . . . ha[d] to
vomit” when she “ha[d] [her] head down.”
Id. at 49.
then called a vocational expert, Edmond Calandra. The ALJ
asked Calandra to “assume a hypothetical individual
with the past jobs” held by Queiroga. Id. at
53. He asked him “[f]urther [to] assume that th[e]
individual [was] limited to . . . light exertion work with no
pushing or pulling with [her] right arm . . . for the
operation of hand controls.” Id. at 53-54.
“[T]he individual could only occasionally climb ramps
and stairs, balance, stoop, kneel, crouch, or crawl, ”
and “would further be limited to no climbing of
ladders, ropes, or scaffolds.” Id. at 54.
Finally, “[t]he individual would have  further
limitation[s] to . . . only occasional reaching with the
right upper extremity, and no overhead reaching with the . .
. right extremity, ” and “needing to avoid
concentrated exposure to moving machinery . . . or
heights.” Id. Calandra opined that such a
hypothetical person would not be able to perform any of
Queiroga's past work, but could perform other work such
as “small parts assembler, . . . [s]olderer, . . .
[a]nd hand sewer.” Id.
also asked Calandra to consider a hypothetical individual who
“was further limited . . . to only frequent fingering
or feeling.” Id. at 55. Calandra reported that
the additional limitation would “eliminate all
three” positions he had mentioned, and that
“considering someone who has no English speaking
skills . . . and no reading skills, . . . there really would
be no jobs for th[at] person.” Id. If the
hypothetical person “w[ere] able to read addresses,
” however, Calandra opined that she “could be a
mail clerk, . . . ticket taker, . . . [or] jewelry
painter.” Id. at 56. Were the person
“limited to only occasional fingering or feeling . . .
with both hands, ” Calandra stated that would
“eliminate all of th[ose] [jobs], ” and that
there would be no other work available for the hypothetical
person. See Id . at 57.
counsel then examined the vocational expert. He asked
Calandra to consider a hypothetical person with the
restrictions already provided by the ALJ, who also
“could not have [her] head positioned downward.”
Id. Calandra stated that such an additional
limitation “would eliminate all” the jobs he had
previously listed, and that “there would be no
work” for such a person in the national economy.
See Id . at 57-58. The ALJ asked Queiroga's
attorney where in the record “there [was] any
discussion of her problem keeping her head down, ” to
which counsel responded that her doctors reported her saying
that “she c[ould] not bend without having an episode of
vertigo” and that her “symptoms worsened by
bending [her] neck forwards, backwards, and sideways.”
Id. at 60.
the second hearing, on February 28, 2014, the ALJ issued an
opinion in which he found that Queiroga “was not under
a disability, as defined in the Social Security Act, at any
time from March 1, 2011, the alleged onset date, through
December 31, 2011, the date last insured.” ALJ
Decision, R. at 27. At the first step, the ALJ found that
Queiroga “did not engage in substantial gainful
activity during the period from her alleged onset date . . .
through her date last insured.” Id. at 21. At
the second step, the ALJ found that Queiroga's
“degenerative disc disease of the cervical spine and
vertigo” were “severe impairments” that
existed “[t]hrough the date last
insured.”Id. At the third step, the ...