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Sims v. Berryhill

United States District Court, D. Connecticut

September 6, 2017

KENNETH SIMS, Plaintiff,
v.
NANCY BERRYHILL, Commissioner Of Social Security, Defendant.

          MEMORANDUM OF DECISION ON THE MOTION FOR ORDER REVERSING OR REMANDING COMMISSIONER'S DECISION AND THE MOTION TO AFFIRM THE FINAL DECISION

          WARREN W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff Kenneth Sims challenges the denial of his application for Social Security disability benefits and requests reversal or remand of the Commissioner's decision pursuant to sentence four of 42 U.S.C § 405(g). For the following reasons, plaintiff's motion for order reversing the Commissioner's decision will be denied; and defendant's motion to affirm the decision of the Commissioner will be granted.

         BACKGROUND

         The plaintiff has filed a statement of facts and medical history that commences with plaintiff's May 1987 amputation of the left leg after a motorcycle accident. Defendant adopted plaintiff's statements with the exception of plaintiff's listing of impairments, which is a legal conclusion for the Commissioner; and plaintiff's characterization of chrondromalacia as a firm diagnosis rather than a noted impression in a treatment report by a physician assistant. Subject to these exceptions, the Court incorporates the factual statements submitted by plaintiff herein.

         Plaintiff, who was born in 1967, filed a claim for disability insurance benefits on March 15, 2012, alleging disability onset on October 28, 2012, due to chronic right leg swelling, depression, back pain, arthritis, ankle pain and anxiety. His claim was denied on July 15, 2013, and upon reconsideration on November 5, 2013. On October 29, 2014, a hearing took place before an Administrative Law Judge (“ALJ”), with plaintiff represented by counsel. On January 12, 2015, the ALJ denied plaintiff's claim for disability benefits in a written ruling that found plaintiff had the severe impairments of status post amputation of the lower extremity, affective disorder and substance addiction disorder; but that plaintiff did not have an impairment or combination thereof that met or medically equaled any of the Agency's listed impairments. The ALJ determined that plaintiff had residual functional capacity (“RFC”) to perform a range of sedentary work.[1] The ALJ found that plaintiff's range of sedentary work was limited by his ability to stand and walk a maximum of four hours in an eight-hour workday; to climb ramps and stairs occasionally; never climb ladders ropes or scaffolds; kneel, crouch and crawl occasionally. He found that plaintiff could balance frequently and perform simple work tasks but he could no longer perform his past relevant work. In finding that plaintiff could perform jobs that existed in the national economy, the ALJ noted that a vocational expert had testified that a person of plaintiff's same age, education, vocational background and his RFC could perform jobs such as order clerk, information clerk, and cashier. However, the ALJ recognized that plaintiff “is able to perform less than the full range of sedentary work, as he has difficulty carrying objects due to his use of a cane.”

         The ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review on August 3, 2016.

         DISCUSSION

         In reviewing a final decision of the Commissioner under 42 U.S.C. §§ 405(g) and 1383(c), the district court performs an appellate function. Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981); Igonia v. Califano, 568 F.2d 1383, 1387 (D.C. Cir. 1977). A reviewing court will “set aside the ALJ's decision only where it is based upon legal error or is not supported by substantial evidence.” Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). See also Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)(“As a general matter, when we review a decision denying benefits under the Act, we must regard the [Commissioner's] factual determinations as conclusive unless they are unsupported by substantial evidence”). “Substantial evidence” is less than a preponderance, but “more than a scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see Yancey v. Apfel, 145 F.3d 106, 110 (2d Cir. 1998); Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

         In determining whether the evidence is substantial, the court must “take into account whatever in the record fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). In so doing, the Court must “review the record as a whole.” New York v. Sec'y of Health and Human Servs., 903 F.2d 122, 126 (2d Cir.1990). The ALJ need not “reconcile every conflicting shred of medical testimony.” Miles v. Harris, 645 F.2d 122, 124 (2d Cir.1981).

         The regulations promulgated by the Commissioner establish a five-step analysis for evaluating disability claims. Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987); 20 C.F.R. §§ 404.1520 and 416.920. First, the Commissioner considers if the claimant is, at present, working in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(I). If not, the Commissioner next considers if the claimant has a medically severe impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the severity requirement is met, the third inquiry is whether the impairment is listed in Appendix 1 of the regulations or is equal to a listed impairment. 20 C.F.R. § 416.920(a)(4)(iii); Pt. 404, Subpt. P. App. 1. If so, the disability is granted. If not, the fourth inquiry is to determine whether, despite the severe impairment, the claimant's residual functional capacity allows him or her to perform any past work. 20 C.F.R. § 416.920(a)(4)(iv). If a claimant demonstrates that no past work can be performed, it then becomes incumbent upon the Commissioner to come forward with evidence that substantial gainful alternative employment exists which the claimant has the residual functional capacity to perform. 20 C.F.R. § 416.920(a)(4)(v). If the Commissioner fails to come forward with such evidence, the claimant is entitled to disability benefits. Alston, 904 F.2d at 126.

         When the reviewing court has “no apparent basis to conclude that a more complete record might support the Commissioner's decision, ” it may remand for the sole purpose of calculating benefits. Butts v. Barnhart, 399 F.3d 277, 385-86 (2d Cir. 2004). However, the reviewing court may remand the matter to allow the ALJ to further develop the record, make more specific findings, or clarify his or her rationale. See Grace v. Astrue, 2013 WL 4010271, at *14 (S.D.N.Y.); see also Butts, 399 F.3d at 385-86. Plaintiff claims that the ALJ erred by assigning great weight to the opinions of the non-examining state agency experts Drs. Maria Lorenzo, Angelina Jacobs, and Janine Swanson, and by affording little weight to the opinions of plaintiff's treating physicians and sources, Drs. Babu Kumar and Brian Coyle and Nurse Practitioner Suni Jacob. Plaintiff also asserts that the ALJ erred in his consideration of the listing impairments and in his assessment of plaintiff's credibility.

         Defendant counters that the ALJ accorded proper weight to medical sources; that the ALJ's findings with regarding to plaintiff's listing impairments and RFC were supported by substantial evidence, and that the ALJ properly assessed plaintiff's credibility.

         Treating Source Rule

         The Court must determine whether the ALJ applied the correct standards when he accorded substantial weight to the non-examining medical opinions but little or ...


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