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Johnson v. Berryhill

United States District Court, D. Connecticut

June 1, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Stefan R. Underhill, United States District Judge.

         In the instant Social Security appeal, Darryl E. Johnson moves to reverse the decision by the Social Security Administration (SSA) denying him disability insurance benefits. The Commissioner of Social Security moves to affirm the decision. Although I conclude that most of Johnson's arguments for reversal lack merit, I hold that the Administrative Law Judge (ALJ) failed to properly describe all of Johnson's limitations to the vocational expert. As a result of the ALJ's omission, her finding that Johnson could perform other work was not supported by substantial evidence. Therefore, I grant Johnson's motion and deny the Commissioner'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

         Darryl E. Johnson applied for Social Security disability insurance benefits on December 28, 2012, alleging a period of disability from January 1, 2013. Statement of Stipulated Facts, Doc. No. 13-2, at 1. Johnson identified his disability as “[d]egenerative disc disease.” See Disability Determination Explanation (Initial), R. at 145.

         The SSA initially denied Johnson's claim on February 28, 2013, finding that although Johnson's “condition result[ed] in some limitations in [his] ability to perform work related activities, . . . th[o]se limitations d[id] not prevent [him] from performing work [he] ha[d] done in the past.” Id. at 153. In the agency's view, Johnson's condition was “not severe enough to keep [him] from working.”[1] Id.

         Johnson sought reconsideration, alleging that he also suffered from a hand injury and cognitive impairment. The SSA adhered to its decision upon reconsideration on September 12, 2013.[2] Disability Determination Explanation (Reconsideration), R. at 177.

         Johnson requested a hearing before an ALJ, which was held on February 4, 2015. Tr. of ALJ Hr'g, R. at 68. At the hearing, ALJ Sharda Singh questioned Johnson about his conditions and treatment history, particularly asking “how much weight . . . [he] th[ought] [he] c[ould] lift and carry comfortably, ” and “[h]ow long or . . . how far . . . [he] th[ought] [he] c[ould] stand or walk.” Id. at 112. Johnson replied that he could lift only “somewhere between five and 10 pounds, ” could stand only for “15, 20 minutes, ” and rarely walked. Id. at 112-13.

         The ALJ then heard testimony from two vocational experts, one for Johnson, Jeff R. Blank, PhD, and one for the SSA, Steven B. Sachs, PhD. Johnson's attorney questioned Dr. Blank first. She described Johnson as “closely approaching advanced age, ha[ving] completed a high school education with specific vocational training . . ., and his work history being self-employed as a freight broker at the sedentary exertion level.” Id. at 121. Johnson's counsel then asked, “Assuming . . . [Johnson] experiences fatigue to the extent that he or she is required to take multiple breaks during an eight-hour work day, are there jobs available for him in the local economy?” Id. at 123. Dr. Blank replied, “That description of an individual would not be consistent with competitive work, so I would not expect [] Johnson to be able to perform any of his past . . . positions or other positions given those limitations.” Id. at 124. After Johnson's attorney added furthers restriction of needing “to nap during that time period” and “experienc[ing] pain that interferes with his ability to work and complete tasks on time, ” Dr. Blank concluded that “clearly there would be no work for such a person.” Id. at 124-25.

         ALJ Singh called the SSA's vocational expert, Dr. Sachs. Dr. Sachs characterized Johnson's past work as “sedentary” and “light.” Id. at 135. The ALJ asked Dr. Sachs to “assum[e] . . . an individual [with] the same education and past work experience as [Johnson], ” who could “lift and carry 20 pounds occasionally, [and] 10 pounds frequently; stand and walk for six hours and sit for six hours with a sit/stand option; . . . never climb ladders, ropes, or scaffolds; occasionally climb ramps, stairs, balance, stoop, kneel, courch, and crawl; . . . [and be] further limited to understanding, remembering, and carrying out simple, routine, repetitive, non-complex tasks.” Id. 138. She also asked Dr. Sachs to limit the hypothetical person to “avoid[ing] concentrated exposures to hazards.” Id. at 139. Dr. Sachs opined that, although such a person could not perform Johnson's past jobs, he could find work as a “receptionist, . . . general office clerk, . . . [or] as a production inspector.” Id. With the further limitations of “frequent limitations in . . . gross hand manipulations of the left upper extremity”-Johnson's non-dominant hand- Dr. Sachs concluded that “the work as a receptionist and general officer clerk could be performed, ” but not the work as a production inspector. Id. at 139-40. When the ALJ asked if such a person could find work if they “would be off task for more than 15 percent of the work day and would need to take a nap during the day for . . . about half an hour, ” Dr. Sachs responded, “No.”[3] Id. at 140.

         On February 27, 2015, the ALJ issued an opinion in which she found that Johnson “ha[d] not been under a disability, as defined in the Social Security Act, from January 1, 2013, through the date of th[e] decision.” ALJ Decision, R. at 55. At the first step, the ALJ found that Johnson “ha[d] not engaged in any substantial gainful activity since January 1, 2013, the alleged onset date.” Id. at 40. At the second step, the ALJ found that Johnson's “degenerative disc disease, depression, encephalopathy, and fibromyalgia” were “severe impairments” that “cause[d] a more than minimal impact on the claimant's ability to maintain and perform basic work activities.”[4]Id. At the third step, the ALJ determined that Johnson's impairments were not per se disabling because Johnson “d[id] not have an impairment or combination of impairments that medically me[t] or equal[ed] a listed impairment.” Id. at 42.

         The ALJ then assessed Johnson's residual functional capacity, and found that he could “perform light work, ” with certain limitations. Those limitations were that Johnson (1) was “able to lift and carry [only] up to 20 pounds occasionally, and up to 10 pounds frequently, ” (2) could only “stand or walk for up to 6 hours of an 8 hour workday, [and] sit for up to 6 hours of an 8 hour workday, ” (3) needed to “alternate sitting and standing at will throughout the workday, ” (4) could “never climb ladder[s], ropes, or scaffolds, ” (5) could “occasionally climb ramps and stairs, ” and (6) could “occasionally balance, stoop, kneel, crouch, and crawl.” ALJ Singh also limited Johnson to “understanding, remembering, and carrying out simple, routine, repetitive, noncomplex tasks, ” and “frequently perform[ing] fine and gross hand manipulations with the upper left non-dominant extremity.” Id. at 45. Finally, she held that he “should avoid concentrated exposure to hazards.” Id.

         Although Johnson's “residual functional capacity preclude[d] performance of [his] past relevant work, ” ALJ Singh concluded that “there are jobs that exist in significant numbers in the national economy that [Johnson] c[ould] perform.” Id. at 54. “Based on the testimony of the vocational expert”-i.e., Dr. Sachs-the ALJ ruled that Johnson was “capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” Id. at 55.”A finding of ‘not disabled [was] therefore appropriate, ” and the ALJ denied Johnson's request for disability benefits. Id.

         Johnson requested a review of the ALJ's decision by the SSA's Appeals Council on April 28, 2015. Request for Review of Hearing Decision/Order, R. at 20. Holding that there was “no reason . . . to review the [ALJ]'s decision, ” the Appeals Counsel “denied [Johnson's] request for review” on May 23, 2016. Notice of Appeals Council Action, R. at 1. Johnson then filed a complaint before this court urging me to reverse the Commissioner's decision on June 27, 2016. Compl., Doc. No. 1.

         III. Discussion

         On review, Johnson asserts that the ALJ's “decision is not based on substantial evidence” and that “the Commissioner erred as a matter of law.” Mem. Supp. Mot. Reverse, Doc. No. 13-1, at 1. Specifically, he contends the ALJ's residual functional capacity determination “was not supported by substantial evidence, ” id. at 3; that the ALJ “erred in her determination that [] Johnson lacked credibility, ” id. at 7; that the ALJ wrongly “gave ‘great weight' to the opinions of non-examining state agency medical advisors” and less weight to some of “the opinions of the treating physicians, ” id. at 13, 14; that the ALJ incorrectly “rejected the [v]ocational experts' testimony that [] Johnson would be unable to sustain employment”; and that the ALJ erroneously “did not use all of the limitations in her own [residual functional capacity determination] when questioning the second vocational expert, Dr. Sachs.” Id. at 22. The Commissioner responds that the ALJ's “findings are supported by substantial evidence and made by a correct application of legal principles, ” and should be affirmed. Mot. Affirm, Doc. No. 22, at 1.

         A. Was the ALJ's residual functional capacity determination supported by substantial evidence?

         Johnson argues that the ALJ's residual functional capacity determination was not supported by substantial evidence because it “did not include limitations for all of [Johnson's] severe impairments.” Mem. Supp. Mot. Reverse, Doc. No. 13-1, at 4. In particular, Johnson asserts that ALJ's limitation to “understanding, remembering, and carrying out simple, routine, repetitive, [and] noncomplex tasks, would be appropriate if he had a low IQ but . . . does not address whether he would be off task for a percentage of the day due to his pain, loss of concentration, or . . . need for naps and frequent breaks.” Id. Johnson also disputes the ALJ's finding that he “is frequently able to perform fine and gross manipulations with . . . his left hand, ” a conclusion, he contends, that was supported by “[n]one of his doctors, nor even the state agency non-examining consultants.” Id. at 5. The Commissioner responds that the ...

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