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Bradley v. Berryhillz

United States District Court, D. Connecticut

August 3, 2017



          Jeffrey Alker Meyer United States District Judge.

         Plaintiff Scott Craig Bradley alleges that he is disabled and cannot work as a result of a combination of impairments, including anxiety and pervasive developmental disorder. He has brought this action pursuant to 42 U.S.C. § 405(g), seeking review of a final decision of defendant Commissioner of Social Security denying his claim for disability insurance benefits and supplemental security income benefits. For the reasons that follow, I will grant plaintiff's motion to remand the Commissioner's decision (Doc. #17) and deny defendant's motion to affirm the Commissioner's decision (Doc. #24).[1]


         The Court refers to the transcripts provided by the Commissioner. See Doc. #11-1 through Doc. #11-9. Plaintiff is a 36-year-old man who lives in Hamden, Connecticut. His most recent long-term employer was a liquor wholesaler, where he worked in the orders department.

         After he was terminated from that job in 2007, he held several other jobs, each for no more than a few months. He has not engaged in substantial gainful work since October 20, 2009, the alleged onset date of his disability. Plaintiff's medical records reveal a variety of mental health issues, including pervasive developmental disorder, general anxiety disorder, attention deficit hyperactivity disorder, autism disorder, and mild depression.

         The Social Security Administration (SSA) initially denied plaintiff's claim for benefits in April 2013 and affirmed the denial upon reconsideration in December 2013. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ). ALJ Robert A. DiBiccaro held a hearing in December 2014 and a supplemental hearing in March 2015. Plaintiff was represented by an attorney at both hearings. Plaintiff, his sister, and a vocational expert (VE) all testified.

         In his decision of July 27, 2015, the ALJ found that plaintiff suffered from a number of severe impairments, including a history of right tibial fracture, pervasive developmental disorder, general anxiety disorder, attention hyperactivity disorder, autism disorder, and mild depression. Doc. #11-3 at 33. The ALJ determined that plaintiff had the

residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: the claimant is able to frequently use his upper extremities for handling, fingering, and feeling. He is limited to no more than occasional interaction with supervisors and coworkers. The claimant should avoid working in close proximity with coworkers. He should avoid work with the public. The claimant is limited to work that involves simple instructions and routine, repetitive tasks. He can stay on tasks for more than 90 percent of the workday. The claimant should avoid travel to unfamiliar places, and perform high-paced or stressful work (such as piecework).

Id. at 35. The ALJ then concluded that plaintiff could no longer perform any of his past relevant work, id. at 51, but that he could nevertheless perform jobs that exist in significant numbers in the national economy (based on the testimony of the VE) and thus was not disabled. Id. at 52-53.

         The Appeals Council declined to review the ALJ's decision in June 2016. Plaintiff then filed this federal action asking the Court to reverse the Commissioner's decision or remand the case for rehearing. Doc. #17. The Commissioner has moved to affirm the Commissioner's decision. Doc. #24. On July 11, 2017, this Court heard oral argument on the parties' motions.


         The Court may “set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by substantial evidence or if the decision is based on legal error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation marks and citation omitted); see also 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (per curiam). Absent a legal error, this Court must uphold the Commissioner's decision if it is supported by substantial evidence and even if this Court might have ruled differently had it considered the matter in the first instance. See Eastman v. Barnhart, 241 F.Supp.2d 160, 168 (D. Conn. 2003).

         To qualify as disabled, a claimant must show that he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months, ” and “the impairment must be ‘of such severity that [the claimant] 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.'” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015) (quoting 42 U.S.C. §§ 423(d)(1)(A), 423(d)(2)(A)). “[W]ork exists in the national economy when it exists in significant numbers either in the region where [a claimant] live[s] or in several other regions of the country, ” and “when there is a significant number of jobs (in one or more occupations) having requirements which [a claimant] [is] able to meet with his physical or mental abilities and vocational qualifications.” 20 C.F.R. § 404.1566(a)-(b); see also Kennedy v. Astrue, 343 F.App'x 719, 722 (2d Cir. 2009).

         To evaluate a claimant's disability and determine whether he qualifies for benefits, the agency engages in a well-established five-step process. See Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122-23 (2d Cir. 2012). The claimant bears the burden of proving his case at steps one through four. Before step four, the ALJ is required to identify the plaintiff's residual functional capacity (“RFC”), which is “the most the claimant can still do in a work setting despite the limitations imposed by his impairments.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (per curiam). At step five, the burden shifts to the Commissioner to demonstrate that there is other work that the claimant can perform, based on the claimant's RFC, age, education, and past relevant work. See McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). Specifically, “the Commissioner must determine [at step five] that significant numbers of jobs exist in the national economy that the plaintiff can perform. . . . An ALJ may make this determination either by applying the Medical Vocational Guidelines or by adducing testimony of a vocational expert. An ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as there is substantial record evidence to support the assumption[s] upon which the vocational expert based his opinion. . . .” Id. (citations and internal quotation marks omitted).

         Plaintiff contends that the ALJ made several errors in reaching his conclusion that plaintiff was not disabled. He argues: (1) that the ALJ erred in concluding that there were jobs available to plaintiff in the national economy, in light of the VE's testimony about off-task time; (2) that the ALJ erred in relying on the VE's testimony; (3) that the ALJ violated the treating physician rule; (4) that the ALJ misinterpreted and overly relied on Global Assessment of Functioning (GAF) scores; (5) that the ALJ improperly substituted his own judgment for that of medical experts; and (6) that the ALJ's finding that plaintiff was frequently able to use his upper extremities for handling, fingering, and feeling was unsupported.

         Alleged Error in Concluding that Available Jobs Existed in the National Economy

         Plaintiff first challenges the ALJ's conclusion that there are jobs in the national economy that he can perform. In formulating plaintiff's RFC, the ALJ found that plaintiff “can stay on tasks for more than 90 percent of the workday.” Doc. #11-3 at 35. The ALJ then concluded that plaintiff was capable of performing three jobs that the VE identified at the hearing. The VE, however, testified that the three jobs he had identified would not be available to an individual who could work only 90 percent of the day (in other words, an individual who is off-task for ten percent of the day).[2] Instead, the VE testified, these jobs were available for an individual who was off-task “no more than five minutes per work hour, or about 7.5 percent of the work day.”[3]Id. at 173. Plaintiff argues that the ALJ's conclusion that there were available jobs would have required a finding that plaintiff could work at least 92.5 percent of the day.

         I agree that the ALJ erred. The ALJ's RFC finding of “more than 90 percent” was consistent with plaintiff being off-task for, say, nine percent of the workday. And if that were so, then according to the VE's uncontradicted testimony, there would be no jobs available to plaintiff. Although the difference between 90 and 92.5 percent may seem slight, the VE explicitly drew a line between those two percentages and believed this distinction to be important. On notice of this distinction, the ALJ then specifically made a finding that plaintiff could stay on task for “more than 90 percent” of the day.

         It is true, as the Commissioner now argues, that the ALJ was not required to accept the VE's 92.5 percent cutoff. But in this case, the ALJ did accept it-his opinion explicitly “relie[d] . . ...

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