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Zayas v. Berryhill

United States District Court, D. Connecticut

September 27, 2017

FRANK A. ZAYAS, Plaintiff,
v.
NANCY A. BERRYHILL, [1], ACTING COMMISSIONER OF SOCIAL SECURITY Defendant.

          RULING ON THE PLAINTIFF'S MOTION TO REVERSE AND THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

          Dominic J. Squatrito United States District Judge

         This is an administrative appeal following the denial of an application filed by the plaintiff, Frank A. Zayas (“Zayas”), for disability insurance benefits (“DIB”). It is brought pursuant to 42 U.S.C. § 405(g).[2]

         Zayas now moves for an order reversing the decision of the Commissioner of the Social Security Administration (“Commissioner”). In the alternative, Zayas seeks an order remanding his case for a rehearing. The Commissioner, in turn, has moved for an order affirming her decision.

         The issues presented are whether the ALJ erred: (1) in assessing the medical evidence in the record; (2) in determining Zayas's residual functional capacity (“RFC”); and (3) in concluding, on the basis of testimony from a vocational expert, that Zayas was capable of making a successful adjustment to other work that existed in significant numbers in the national economy. For the following reasons, Zayas's motion for an order reversing or remanding the Commissioner's decision is denied, and the Commissioner's motion for an order affirming that decision is granted.

         FACTS[3]

         On or about May 25, 2010, Zayas filed an application for disability benefits alleging a disability onset date of December 18, 2008, and continuing through December 31, 2013, the last insured date.[4] On August 5, 2010, a disability adjudicator in the Social Security Administration denied his initial request for DIB benefits and thereafter denied his request for reconsideration.

         On February 13, 2012, Zayas appeared with counsel for a hearing before an ALJ and the ALJ subsequently issued a decision denying benefits. On March 28, 2013, the Appeals Council vacated the ALJ's decision and remanded the case back to the ALJ for the following reason:

The Administrative Law Judge found the claimant had the residual functional capacity to perform light work except he was limited to occasional bending, stooping, twisting, squatting, kneeling, crawling, climbing, and balancing, was able to interact on an occasional basis with the public, coworkers and supervisors, and was able to perform simple and routine tasks with occasional supervision (Finding No. 5). However, there is no vocational evidence in the record regarding the extent to which the claimant's limitations erode the occupational base for light work.

(Doc. # 13-5, at 51, p. 666).[5]

         A second hearing was held by the ALJ on April 16, 2014. On September 25, 2014, the ALJ issued a decision denying benefits. On February 22, 2016, the Appeals Council denied Zayas's request for review of that decision thereby making the ALJ's decision the final decision of the Commissoner. This appeal followed.

         Zayas, who was born on June 3, 1973, has a high school education. His past relevant work was as a residential care aide, a warehouse worker, and a mixing machine operator. His most recent job, which ended in late 2008, was “taking care of [the] mentally challenged.” (Doc. # 13-4, at 335, p. 594). He did not leave that job because of any mental or physical health issues, but because “they had me in - - in an investigation, in the job, and they (INAUDIBLE) to fire me.” (Id.).

         Medical Evidence

         A. Physical Impairment

         Zayas presented to his primary care physician, Helar Campos, M.D. (“Campos”), on March 10, 2009, complaining of lower back pain with numbness and foot pain. He reported that the pain was worse when he sat for long hours. Upon examination, Campos noted positive straight-leg raising on the right side, normal gait, and normal muscle power. Campos saw Zayas again three days later and prescribed Percocet for his back pain.

         In April 2009 Campos saw Zayas on a follow-up visit and recommended that he “start doing diet and exercise to see if we can manage” his morbid obesity. (Doc. # 13-9, at 16, p. 1009). Campos also prescribed a cane in response to Zayas's complaints of difficulty walking. On May 27, 2009, Zayas complained to Campos of knee pain and was noted to have an abnormal gait and range of motion. In June 2009 Campos noted that Zayas's back pain was stable and that his gait was within normal limits with no instability.

         A June 2009 MRI of Zayas's lumbar spine indicated “[m]ild multilevel lumbar facet[6]DJD [degenerative joint disease], moderate at ¶ 5-S1.” (Id. at 138, p. 1131). Campos reviewed the MRI report and opined that Zayas's back pain was due to his obesity. He referred Zayas to a nutritionist and a physical therapist and noted that the long-term plan was for Zayas to lose weight, strengthen his muscles, and get off pain medication. Zayas went for physical therapy for his back pain in June and July 2009. On September 22, 2009, he met with a nutritionist. He reported to the nutritionist that he was able to exercise on an elliptical trainer for thirty minutes a day and was lifting weights five days a week.

         On June 3, 2010, Dr. Daniel Glenney (“Glenney”), an orthopedist, examined Zayas's right knee and diagnosed bursitis. He found mild tenderness medially and noted that x-rays of the knee showed minor spurring but were otherwise normal. Glenney prescribed medication for pain. Zayas continued to complain of knee pain, and on July 9, 2010, Glenney administered an injection to Zayas's knee.

         In connection with Zayas's application for DIB benefits, Ronald S. Jolda, D.O. (“Jolda”) conducted a consultative examination of Zayas on July 26, 2010. At that time, Zayas reported that he suffered from the following conditions: diabetes, anxiety, arthritis in his back and left knee, back pain, bipolar disorder, depression, and sleep apnea. Zayas told Jolda that his left knee bothered him all of the time and snapped when he walked. He was vague as to how far he could walk and stated that he was not receiving treatment for his knee. Upon examination, Zayas walked slowly and leaned heavily on his cane. He refused to squat, put his full weight on each leg, or stand on his toes and heels because he said it would hurt too much. Jolda's report indicates that Zayas made a “half hearted” effort during range of motion testing and demonstrated limited range of motion in his lumbar spine. (Doc. # 13-10, at 5, p. 1252). Zayas screamed out in pain upon light palpation to the lumbar area, and, according to Jolda, Zayas's pain was “out of proportion to [the doctor's] findings.” (Id.). Jolda found full range of motion and full strength in Zayas's arms and legs with the exception of some limitation in his left knee joint. Jolda concluded that Zayas “may have some mild arthritis of the left knee, ” and that Zayas's “pain complaint and presentation is way out of line.” (Id. at 6, p. 1253).

         A September 2010 MRI of Zayas's lumbar spine found degenerative disc disease and facet joint degenerative joint disease. The Neurosurgery Progress Note regarding that MRI, which was authored by Hilary C. Onyiuke, M.D. (“Onyiuke”), indicated that the MRI of Zayas's lumbar spine was “essentially normal” and that Zayas did not require surgical intervention at that point. Onyiuke opined that Zayas's weight was “the cause of his low back pain.” (Id. at 34, p. 1281).

         On July 27, 2012, after he had run out of pain medication, Zayas went to the Backus Hospital Emergency Department complaining of non-radiating lower back pain and knee pain. Upon examination, his straight leg raising was normal, although he exhibited some tenderness and decreased range of motion. Zayas was diagnosed with chronic pain and referred to his primary care physician.

         On January 28, 2014, Megan Stone, A.P.R.N. (“Stone”), examined Zayas. She found muscle spasms and moderately reduced range of motion in his lumbar spine. In a Medical Source Statement (Physical) prepared on that same date, Stone determined the following concerning Zayas's ability to do work-related activities:

Lift and Carry:

Occasionally up to 10 lbs., Never over 10 lbs.

Sit:

One hour at a time, seven hours in an 8 hour workday

Stand:

Thirty minutes at a time, two hours in an 8 hour workday

Walk:

Thirty minutes at a time, two hours in an 8 hour workday

Reach:

Occasionally Push/Pull: Occasionally

Handle:

Occasionally

Finger:

Occasionally

Feel:

Occasionally

Foot controls:

Never

(Doc. # 13-11, at 221-24, pp. 1726-29).

         B. Mental Impairment

         On April 3, 2009, Zayas reported to Campos that he was “having trouble with his depression.” (Doc. # 13-9, at 15, p. 1008). Zayas saw Campos again on April 6, 2009, and stated that he was “extremely depressed” and had a gun (Id. at 18, p. 1011). Campos referred Zayas to the emergency room and he was admitted to the psychiatric service. A few days after Zayas visited the emergency room, Campos noted that hospital staff had prescribed Seroquel, Klonopin, and Celexa for his depression. By May 2009 Campos noted that Zayas's depression was well-controlled with these new medications. On July 29, 2009, Campos noted that with respect to his depression, Zayas was “seeing a psychiatrist and doing well.” (Doc. # 13-10, at 96, p. 1343).

         On May 22, 2009, Zayas began mental health treatment at United Community and Family Services (“UCFS”). With the exception of a six-month period during which he was incarcerated, Zayas was engaged in regular mental health therapy for over six years at UCFS.

         In September 2012 Zayas was referred by his UCFS therapist, Julia Israelski, LCSW (“Israelski”), to the Backus Hospital partial hospital program due to increasing depression, anxiety, and suicidal thoughts. Zayas began attending the partial hospital program on October 1, 2012, and his attendance at the program was noted to be “quite sporadic.” (Id. at 230, p. 1477). While in the program, Zayas learned new coping strategies and noted that his chronic pain decreased as he became more active. During this time, Zayas reported participating in activities such as riding his motorcycle, going out to dinner, and driving his family to Pennsylvania. Zayas was discharged from the partial hospital program back to UCFS on November 12, 2012. At the time of his discharge, Zayas “stated that he was not experiencing any psychotic symptoms.” (Id. at 231, p. 1478). The prognosis for Zayas noted in the partial hospital program Discharge Summary was “good.” (Id. at 232, p. 1479).

         On February 19, 2013, Israelski referred Zayas back to the Backus Hospital emergency department due to increased depression, auditory hallucinations, and suicidal ideation. He was admitted to the hospital on a voluntary basis for three days and his medication was adjusted. The Discharge Summary relating to this admission states that at the time of his discharge Zayas was “demonstrating adequate insight and judgment, brightening of his affect and there is no suicidal or self-destructive ideation.” (Doc. # 13-11, at 102, p. 1607).

         In a Medical Report for Incapacity dated November 12, 2013, Israelski opined that Zayas was not “capable of simple, competitive employment at this time” due to his “depression [with] psychotic features, apathy, low self esteem, low frustration tolerance, easily overwhelmed, anxiety, panic attacks, racing thoughts, isolates when stressed, fleeting suicidal/homicidal ...


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