United States District Court, D. Connecticut
RULING ON CROSS MOTIONS
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
26, 2018 The plaintiff, James Consiglio, brings this appeal
pursuant to §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 Acting Commissioner
of the Social Security Administration (the
“Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”). Plaintiff
has moved for an order reversing the decision of the
Commissioner, or in the alternative, for remand. [Doc. #17].
Defendant has filed a motion for an order affirming the
decision of the Commissioner. [Doc. #22].
reasons set forth below, defendant's Motion for an Order
Affirming the Decision of the Commissioner is
GRANTED. [Doc. #22].
Plaintiff's Motion to Reverse, or Alternatively, Remand
is DENIED. [Doc. #17].
filed an application for DIB, alleging disability beginning
November 1, 2010. See Certified Transcript of the
Administrative Record, compiled on April 15, 2017
(hereinafter “Tr.”) 188-91; Doc. #18 at 2.
Plaintiff later amended the alleged onset date to December 4,
2011. See Tr. 80-81; Doc. #18 at 2 n.3; Doc. #22-1 at 2 n.1.
Plaintiff's application was denied initially on April 30,
2013, see Tr. 139-41, and upon reconsideration on October 8,
2013, see Tr. 144-46.
December 23, 2014, plaintiff, accompanied and represented by
Attorney Robert Reger, appeared and testified at a hearing
before Administrative Law Judge (“ALJ”) Robert A.
DiBiccaro. See Tr. 74-117. On April 23, 2015, the plaintiff,
accompanied and represented by Attorney Reger, appeared and
testified at a supplemental hearing before ALJ DiBiccaro. See
Tr. 31-73. Vocational Expert (“VE”) John Bopp
also appeared and testified at the hearing. Tr. 31, 52-69. On
August 28, 2015, the ALJ issued a decision finding that
plaintiff “was not under a disability, as defined in
the Social Security Act, at any time from December 4, 2011,
the amended alleged onset date, through December 31, 2014,
the date last insured[.]” Tr. 24. On January 10, 2017,
the Appeals Council denied plaintiff's request for
review, thereby making the ALJ's August 28, 2015,
decision the final decision of the Commissioner. See Tr. 1-3.
The case is now ripe for review under 42 U.S.C. §405(g).
represented by Attorney Reger, filed this timely action for
review and now moves to reverse and/or remand the
Commissioner's decision. On appeal, the plaintiff asserts
that the ALJ made various errors that prevented him from
receiving a full and fair hearing.
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. See Balsamo v. Chater, 142
F.3d 75, 79 (2d Cir. 1998). Second, the court must decide
whether the determination is supported by substantial
evidence. See Id. 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. 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.”). “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). 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) .
“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. 3:13CV00073(JCH), 2014 WL 1304715, at *6
(D. Conn. Mar. 31, 2014).
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).
“[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 Fed.Appx. 58, 59 (2d Cir. 2013) .
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, plaintiff must demonstrate that he 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); see also 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”).
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 his residual functional
capacity.” Gonzalez ex rel. Guzman v. Dep't of
Health and Human Serv., 360 Fed.Appx. 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)). “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).
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