United States District Court, D. Connecticut
RULING ON CROSS MOTIONS
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.
Kimberly Ann Whitley (“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 her application for Disability Insurance Benefits
(“DIB”) under the Act. Plaintiff has moved to
reverse the decision of the Commissioner, or in the
alternative, for remand to the Social Security Administration
for a new hearing. [Doc. #22].
reasons set forth below, plaintiff's Motion for Order
Reversing the Decision of the Commissioner [Doc.
#22] is DENIED, and defendant's
Motion for an Order Affirming the Decision of the
Commissioner [Doc. #27] is
filed an application for DIB on March 25, 2011, alleging
disability beginning September 28, 2009. See Certified
Transcript of the Administrative Record, compiled on March
31, 2017, (hereinafter “Tr.”) 504-05.
Plaintiff's application was denied initially on June 21,
2011, see Tr. 373-76, and upon reconsideration on September
19, 2011. See Tr. 377-79.
March 14, 2012, plaintiff, represented by Attorney Joe Smith,
appeared and testified at a hearing before Administrative Law
Judge (“ALJ”) Gilbert Rodriguez. See Tr. 253-93.
On June 29, 2012, ALJ Rodriguez issued an unfavorable
decision. See Tr. 344-63. On December 12, 2013, the Appeals
Council vacated ALJ Rodriguez's decision and remanded the
matter. See Tr. 364-69. Plaintiff, again represented by
Attorney Joe Smith, appeared and testified at a hearing
before Administrative Law Judge Ronald J. Thomas on December
4, 2014. See Tr. 294-341. Vocational Expert
(“VE”) Larry Takki also testified at that
hearing. See Tr. 333-37. On April 24, 2015, the ALJ issued an
unfavorable decision. See Tr. 219-42. On December 9, 2016,
the Appeals Council denied plaintiff's request for
review, thereby making the ALJ's April 24, 2015, decision
the final decision of the Commissioner. See Tr. 1-7. The case
is now ripe for review under 42 U.S.C. §405(g).
timely filed this action for review and now moves to reverse
the Commissioner's decision, or in the alternative, to
remand for a new hearing. See Doc. #22. On appeal, plaintiff
1. The ALJ failed to consider plaintiff's diagnosis of
2. The ALJ improperly evaluated plaintiff's fibromyalgia;
3. The ALJ failed to assess plaintiff's impairments in
4. The ALJ failed to develop the record;
5. The ALJ improperly weighed Dr. Manuel Pecana's medical
source statement; and
6. The ALJ's vocational analysis was insufficient.
See generally Doc. #22-1. As set 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).
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. 3:13CV73(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, 1994)).
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) (citations omitted).
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, a plaintiff must demonstrate that he or 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 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) (requiring
that the impairment “significantly limit ... physical
or mental ability to do basic work activities” to be
is a familiar five-step analysis used to determine if a
person is disabled. See 20 C.F.R. §404.1520. In the
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 [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) (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 ALJ'S DECISION
the above-described five-step evaluation process, ALJ Thomas
concluded that plaintiff was not disabled under the Act
during the relevant time period. See Tr. 233. As the ALJ
noted, the relevant timeframe for this DIB application is
from the alleged onset date of September 28, 2009, through
the date of last insured, December 31, 2010. See Behling
v. Comm'r of Soc. Sec, 369 F. App'x 292, 294 (2d
Cir. 2010) (stating that to be entitled to DIB, plaintiff
“[is] required to demonstrate that she was disabled as
of the date on which she was last insured” (citing 42
U.S.C. §423(a)(1)(A))). At step one, the ALJ found that
plaintiff had not engaged in substantial gainful activity
during the period from the alleged onset date of September
28, 2009, through December 31, 2010. See Tr. 224. At step
two, the ALJ found that plaintiff had the severe impairments
of “migraine; hypothyroidism; degenerative disc disease
of the cervical and thoracic spine; obesity; fibromyalgia;
lower extremity dystonia; conversion disorder; major
depressive disorder.” Tr. 224.
three, the ALJ found that plaintiff's impairments, either
alone or in combination, did not meet or medically equal any
of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P,
App. 1. See Tr. 225-27. The ALJ specifically considered
Listings 1.04 (disorders of the spine); neurological listings
in section 11.00; thyroid disorders in section 9.00; 14.09
(inflammatory arthritis); 12.04 (affective disorders); and
12.07 (somatoform disorders). See Tr. 225-27. Before moving
on to step four, the ALJ found plaintiff had the RFC to
perform sedentary work as defined in 20 C.F.R.
§404.1567(b). See Tr. 227. The ALJ found that plaintiff
was further limited to occasional bending, twisting,
squatting, kneeling, crawling, climbing, and balancing. She
needed to avoid hazards such as heights, vibration, and
dangerous machinery -- including driving. She was limited to
occasional interaction with co-workers, supervisors, and the
general public. She was further limited to simple, routine,
four, the ALJ concluded that plaintiff was not capable of
performing her past relevant work. See Tr. 231. At step five,
after considering plaintiff's age, education, work
experience, and RFC, and after consulting a VE, the ALJ found
that there existed jobs in significant numbers in the
national economy that plaintiff could perform. See Tr.
raises six arguments in support of reversal or remand. See
generally Doc. #22-1. The Court will address each argument in