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Queiroga v. Berryhill

United States District Court, D. Connecticut

March 28, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



         In the 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.

         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

         Maria 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 benefits.” Id.

         The SSA 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.”[2] Disability Determination Explanation (Initial), R. at 106. The SSA adhered to its decision upon reconsideration on December 13, 2012.[3]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 35, 65.

         At the first hearing, ALJ Matthew Kuperstein questioned Queiroga and her attorney about her ability to communicate in English, [4] Tr. 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.

         At the 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.

         The ALJ 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.

         The ALJ 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.

         Queiroga's 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.

         After 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.”[5]Id. At the third step, the ...

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