United States District Court, D. Connecticut
KEVIN M. DANIELS
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION
RULING ON CROSS MOTIONS
SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE
Kevin M. Daniels (“plaintiff”), brings this
appeal under §205(g) of the Social Security Act (the
“Act”), as amended, 42 U.S.C. §405(g),
seeking review of a final decision by the Commissioner of the
Social Security Administration (the
“Commissioner” or “defendant”)
denying his applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) under the Act. Plaintiff has moved for an
order reversing the decision of the Commissioner. [Doc. #16].
reasons set forth below, plaintiff's Motion for Order
Reversing the Decision of the Commissioner [Doc. #16] is
DENIED, and defendant's Motion for an Order Affirming the
Decision of the Commissioner [Doc. #18] is
filed concurrent applications for DIB and SSI on October 10,
2012, alleging disability beginning August 1, 2008. See
Certified Transcript of the Administrative Record, Doc. #11,
compiled on August 12, 2016, (hereinafter “Tr.”)
209-24.Plaintiff's applications were denied
initially on March 7, 2013, see Tr. 114-21, and upon
reconsideration on June 28, 2013. See Tr. 125-30.
November 10, 2014, plaintiff, represented by Attorney John C.
Wirzbicki, appeared and testified at a hearing before
Administrative Law Judge (“ALJ”) Ronald J.
Thomas. See Tr. 31-59; see also Tr. 122-23. Vocational Expert
(“VE”) Lawrence P. Takki also testified at the
hearing. See Tr. 51-57; see also Tr. 197-99. On January 28,
2015, the ALJ issued an unfavorable decision. See Tr. 8-28.
On June 1, 2016, the Appeals Council denied plaintiff's
request for review, thereby making the ALJ's January 28,
2015, decision the final decision of the Commissioner. See
Tr. 1-7. The case is now ripe for review under 42 U.S.C.
timely filed this action for review and now moves to reverse
the Commissioner's decision. [Doc. #16]. On appeal,
1. The ALJ erred by failing to consider a closed period;
2. The ALJ erred at step three by failing to adequately
address Listing 1.02;
3. The ALJ erred at step two by failing to find that
plaintiff's chronic pain is a severe impairment; and
4. The ALJ's findings regarding plaintiff's mental
limitations are not supported by substantial evidence.
See Doc. #16-1 at 11-21. As set forth below, the
Court finds that ALJ Thomas did not err as contended.
STANDARD OF REVIEW
review of a social security disability determination involves
two levels of inquiry. First, the Court must decide whether
the Commissioner applied the correct legal principles in
making the determination. Second, the Court must decide
whether the determination is supported by substantial
evidence. See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.
1998) (citation omitted). Substantial evidence is evidence
that a reasonable mind would accept as adequate to support a
conclusion; it is more than a “mere scintilla.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). The reviewing court's responsibility is
to ensure that a claim has been fairly evaluated by the ALJ.
See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983)
Court does not reach the second stage of review - evaluating
whether substantial evidence supports the ALJ's
conclusion - if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912
F.Supp.2d 33, 70 (S.D.N.Y. 2012) (“The Court first
reviews the Commissioner's decision for compliance with
the correct legal standards; only then does it determine
whether the Commissioner's conclusions were supported by
substantial evidence.” (citing Tejada v.
Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999))).
“Where there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of the
substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will
be deprived of the right to have her disability determination
made according to the correct legal principles.”
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
crucial factors in any determination must be set forth with
sufficient specificity to enable [a reviewing court] to
decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d
Cir. 1984) (alterations added) (citing Treadwell v.
Schweiker, 698 F.2d 137, 142 (2d Cir. 1983)). The ALJ is
free to accept or reject the testimony of any witness, but a
“finding that the witness is not credible must
nevertheless be set forth with sufficient specificity to
permit intelligible plenary review of the record.”
Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d
Cir. 1988) (citing Carroll v. Sec. Health and Human
Servs., 705 F.2d 638, 643 (2d Cir. 1983)).
“Moreover, when a finding is potentially dispositive on
the issue of disability, there must be enough discussion to
enable a reviewing court to determine whether substantial
evidence exists to support that finding.” Johnston
v. Colvin, No. 3:13CV00073(JCH), 2014 WL 1304715, at *6
(D. Conn. Mar. 31, 2014) (citing Peoples v. Shalala,
No. 92CV4113, 1994 WL 621922, at *4 (N.D.Ill. Nov. 4,
important to note that in reviewing the ALJ's decision,
this Court's role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited
to determining whether the SSA's conclusions were
supported by substantial evidence in the record and were
based on a correct legal standard.” Talavera v. Astrue,
697 F.3d 145, 151 (2d Cir. 2012) (quoting Lamay v.
Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir.
2009)). “[W]hether there is substantial evidence
supporting the appellant's view is not the question here;
rather, we must decide whether substantial evidence supports
the ALJ's decision.” Bonet ex rel. T.B. v.
Colvin, 523 F. App'x 58, 59 (2d Cir. 2013)
SSA LEGAL STANDARD
the Social Security Act, every individual who is under a
disability is entitled to disability insurance benefits. 42
considered disabled under the Act and therefore entitled to
benefits, plaintiff must demonstrate that he is unable to
work after a date specified “by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §423(d)(1)(A). Such impairment
or impairments must be “of such severity that he is not
only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national
economy.” 42 U.S.C. §423(d)(2)(A); 20 C.F.R.
§§404.1520(c), 416.920(c) (requiring that the
impairment “significantly limit ... physical or
mental ability to do basic work activities” to be
considered “severe” (alterations added)).
is a familiar five-step analysis used to determine if a
person is disabled. See 20 C.F.R. §§404.1520,
416.920. In the Second Circuit, the test is described as
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he is
not, the Secretary next considers whether the claimant has a
“severe impairment” which significantly limits
his physical or mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry
is whether, based solely on medical evidence, the claimant
has an impairment which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
Secretary will consider him disabled without considering
vocational factors such as age, education, and work
experience; the Secretary presumes that a claimant who is
afflicted with a “listed” impairment is unable to
perform substantial gainful activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)
(per curiam). If and only if the claimant does not have a
listed impairment, the Commissioner engages in the fourth and
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's severe
impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to
perform his past work, the Secretary then determines whether
there is other work which the claimant could perform. Under
the cases previously discussed, the claimant bears the burden
of proof as to the first four steps, while the Secretary must
prove the final one.
the fourth step, the claimant carries the burdens of
production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of
proof and the Commissioner is obligated to demonstrate that
jobs exist in the national or local economies that the
claimant can perform given [her] residual functional
capacity.” Gonzalez ex rel. Guzman v. Dep't of
Health and Human Serv., 360 F. App'x 240, 243 (2d
Cir. 2010) (alteration added) (citing 68 Fed. Reg. 51155
(Aug. 26, 2003)); Poupore v. Astrue, 566 F.3d 303,
306 (2d Cir. 2009) (per curiam)). The Residual Functional
Capacity (“RFC”) is what a person is still
capable of doing despite limitations resulting from his
physical and mental impairments. See 20 C.F.R.
assessing disability, factors to be considered are (1) the
objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4)
the claimant's educational background, age, and work
experience.” Bastien v. Califano, 572 F.2d
908, 912 (2d Cir. 1978). “[E]ligibility for benefits is
to be determined in light of the fact that ‘the Social
Security Act is a remedial statute to be broadly construed
and liberally applied.'” Id. (quoting
Haberman v. Finch, 418 F.2d 664, 667 (2d Cir.
the above-described five-step evaluation process, the ALJ
concluded that plaintiff was not disabled under the Act. See
Tr. 22. At step one, the ALJ found that plaintiff had not
engaged in substantial gainful activity since January 27,
2011, the day after the previous determination. See Tr. 14.
At step two, the ALJ found that plaintiff had the severe
impairments of arthritis of the bilateral knees status post
arthroscopic surgery; bipolar disorder; and polysubstance
dependence. See Id. The ALJ determined that
plaintiff's deep vein thrombosis was a non-severe
impairment. See id.
three, the ALJ found that plaintiff's impairments, either
alone or in combination, did not meet or medically equal the
severity of any of the listed impairments in 20 C.F.R. Pt.
404, Subpt. P, App. 1. See Tr. 14-16. The ALJ specifically
considered Listings 1.02 (major dysfunction of a joint),
12.04 (affective disorders), and 12.09 (substance addiction
disorders). See Id. Before moving on to step four,
the ALJ found plaintiff had the RFC
to perform sedentary work as defined in 20 CFR 404.1567(a)
and 416.967(a) except he cannot operate left or right foot
controls. He can occasionally balance, climb, crawl, kneel,
bend, twist, and squat. He can only occasionally interact
with supervisors, coworkers, and the public.
Tr. 16. At step four, the ALJ concluded that plaintiff was
unable to perform any past relevant work. See Tr. 21. At step
five, and after considering plaintiff's age, education,
work experience and RFC, as well as the testimony of the VE,
the ALJ found that jobs existed in significant numbers in the
national economy that plaintiff could perform. See Tr. 21-22.
raises four general arguments in support of reversal. The
Court turns first to the argument that the ALJ failed to
consider a closed period, because the resolution of this
issue will necessarily ...