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Whitley v. Colvin

United States District Court, D. Connecticut

February 23, 2018




         Plaintiff 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].

         For the 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 GRANTED.


         Plaintiff 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.

         On 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).

         Plaintiff 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 argues:

1. The ALJ failed to consider plaintiff's diagnosis of rhabdomyolysis;
2. The ALJ improperly evaluated plaintiff's fibromyalgia;
3. The ALJ failed to assess plaintiff's impairments in combination;
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.


         The 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).

         The 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).

         “[T]he 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)).

         It is 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).


         Under the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits. 42 U.S.C. §423(a)(1).

         To be 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 considered “severe”).[1]

         There 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 fifth steps:

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.


         “Through 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. §404.1545(a)(1).

         “In 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. 1969)).


         Following 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.

         At step 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, repetitious work.

Tr. 227.

         At step 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. 232-33.

         V. DISCUSSION

         Plaintiff raises six arguments in support of reversal or remand. See generally Doc. #22-1. The Court will address each argument in turn.

         A. Plaintiff's ...

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