United States District Court, D. Connecticut
JULIA R. HARPER
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY
RULING ON CROSS MOTIONS
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
Julia R. Harper (“plaintiff”), an adult aged 47,
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 her application for Supplemental Security Income
(“SSI”) under the Act and for Adult Child's
Insurance Benefits (“CIB”) based on disability.
Plaintiff has moved to reverse the decision of the
Commissioner, or in the alternative, for remand. [Doc. #19].
reasons set forth below, plaintiff's Motion to Reverse
the Decision of the Commissioner [Doc. #19] is DENIED, and
defendant's Motion to Affirm the Decision of the
Commissioner [Doc. #21] is GRANTED.
filed concurrent applications for SSI, CIB, and Disability
Insurance Benefits (“DIB”) on January 10, 2013,
alleging disability beginning January 1, 1986. See
Certified Transcript of the Administrative Record, compiled
on August 24, 2016, (hereinafter “Tr.”) 449-465.
Plaintiff's applications were denied initially on April
4, 2013, see Tr. 87-140, 186, 189, and upon reconsideration
on September 24, 2013. See Tr.
20, 2015, plaintiff, accompanied and represented by attorney
Ivan Katz, appeared and testified at a hearing before
Administrative Law Judge (“ALJ”) Ronald J.
Thomas. See Tr. 46-85. Vocational Expert
(“VE”) Warren D. Maxim testified at the hearing
by telephone. See Tr. 74-85. On September 17, 2015,
the ALJ issued an unfavorable decision. See Tr.
14-30. On May 17, 2016, the Appeals Council denied
plaintiff's request for review, thereby making the
ALJ's September 17, 2015, decision the final decision of
the Commissioner. See Tr. 1-4. The case is now ripe
for review under 42 U.S.C. §405(g).
filed this timely action for review and moves to reverse the
Commissioner's decision, or to remand for a new hearing.
[Doc. #19]. On appeal, plaintiff argues:
1. The ALJ erred at step two of the analysis;
2. The ALJ erred by failing to develop the administrative
record and by failing to fill a gap in the administrative
3. The ALJ's Residual Functional Capacity
(“RFC”) determination is not supported by
4. The ALJ erred in evaluating the evidence; and
5. The ALJ's step five analysis is not supported by
forth below, the Court finds that the ALJ did not err as
contended by plaintiff, and that the ALJ's determination
is supported by substantial evidence.
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) (citation omitted).
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)).
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 she 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 [s]he is
not only unable to do h[er] previous work but cannot,
considering h[er] 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. §416.920(c) (requiring that the impairment
“significantly limit ... physical or mental ability
to do basic work activities” to be considered
“provides disability insurance benefits for a disabled
adult child on the earnings record of an insured person who
is entitled to old-age or disability benefits or who has died
if the claimant is 18 years old or older and has a disability
that began before the claimant became 22 years old.”
Doerr v. Colvin, No. 13CV429(JTC), 2014 WL 4057446,
at *3 (W.D.N.Y. Aug. 14, 2014) (quotation marks and citations
omitted). See 42 U.S.C. §402(d)(1)(G); 20
C.F.R. §404.350(a)(5). See also Vella v.
Astrue, 634 F.Supp.2d 410, 417 (S.D.N.Y. 2009)
(“Disabled adult child disability benefits are
available if such child was under a disability (as so
defined) at the time [s]he attained the age of 18 or if [s]he
was not under such a disability (as so defined) at such time
but was under a disability (as so defined) at or prior to the
time [s]he attained (or would attain) the age of 22.”
(quotation marks and citations omitted)), aff'd sub nom.,
Vella v. Comm'r of Soc. Sec., 394 F. App'x
755 (2d Cir. 2010). “In the context of determining
eligibility for disabled adult child's benefits, the term
‘disability' has substantially the same definition
as it does in traditional, adult disability cases.”
Doerr, 2014 WL 4057446, at *3 (citation omitted).
is a familiar five-step analysis used to determine if a
person is disabled. See 20 C.F.R. §416.920.
This process applies to cases in which a claimant applies for
child's benefits after she reaches the age of 18. See
Trombley v. Colvin, No. 8:15CV00567(TWD), 2016 WL
5394723, at *2 n.3 (N.D.N.Y. Sept. 27, 2016) (“In
determining eligibility for disabled [adult] child's
benefits... the five-step sequential process is
applicable.” (citation omitted)); see also Gagnon
v. Comm'r of Soc. Sec., No. 7:14CV1194(GLS), 2016 WL
482068, at *1 (N.D.N.Y. Feb. 5, 2016) (“The regulations
under 42 U.S.C. §405(g) govern both disability insurance
benefits (DIB) and child's insurance benefits
(CIB).” (citation omitted)).
Second Circuit, the test is described as follows:
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 his residual functional
capacity.” Gonzalez ex rel. Guzman v. Dep't of
Health and Human Serv., 360 F. App'x 240, 243 (2d
Cir. 2010) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003)
(alteration added)); Poupore v. Astrue, 566 F.3d
303, 306 (2d Cir. 2009) (per curiam)). The RFC is what a
person is still capable of doing despite limitations
resulting from his physical and mental impairments.
See 20 C.F.R. §416.945(a)(1).
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 ALJ'S DECISION
the above-described five-step evaluation process, ALJ Thomas
concluded that plaintiff was not disabled prior to the date
she attained age 22, and was not disabled from the SSI
application date through the date of the ALJ's decision.
See Tr. 18, 29. For plaintiff's CIB claim, the
ALJ first determined that plaintiff attained age 22 on
December 5, 1991. See Id. at 20. At step
one, the ALJ found that plaintiff had not engaged in
substantial gainful activity from the alleged onset date of
1986 through December 5, 1991. See Id. At
step two, the ALJ did not find evidence of a severe
impairment prior to December 5, 1991. See id.
plaintiff's SSI application, at step one, the ALJ found
that plaintiff had not engaged in substantial gainful
activity since January 1, 2013, the SSI application date.
See Id. At step two, as of January 1, 2013,
the ALJ found that plaintiff had the severe impairments of a
right rotator cuff tear with impingement; lumbago; diabetes
mellitus; obesity; and bipolar disorder. See
Id. The ALJ also found that plaintiff suffered from
a substance abuse disorder that was not severe during the
period in question, and that plaintiff's HIV was also not
a severe impairment. See Id. at 21.
three, the ALJ found that plaintiff's impairments, either
alone or in combination, did not meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Pt.
404, Subpt. P, App. 1. See Tr. 21. The ALJ
specifically considered Listings 1.02 (major dysfunction of a
joint), 1.04 (disorders of the spine), and 12.04 (affective
disorders). See id.
proceeding to step four, the ALJ found plaintiff has the RFC
to perform sedentary work as defined in 20 CFR 404.1567(a)
and 416.967(a) except she is limited to occasional overhead
reaching with the master arm; occasional bending, twisting,
squatting, kneeling, crawling, climbing and balancing. She is
further limited to occasional interaction with supervisors,
the public, and co-workers. She is capable of sustaining