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Cote v. Berryhill

United States District Court, D. Connecticut

March 9, 2018

BERRYHILL, Acting Commissioner Social Security, Defendant.


          Warren W. Eginton Senior United States District Judge

         Plaintiff Daniel Cote challenges the denial of his application for Social Security disability benefits and requests reversal 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 granted to the extent that the matter will be remanded pursuant to sentence six of section 405(g);[1] defendant's motion to affirm the decision of the Commissioner will be denied.


         The parties have filed statements of facts that detail plaintiff's medical history from November 12, 2008, prior to his disability onset, through August 25, 2015, prior to his disability onset date of September 14, 2011, through August 25, 2015. The parties do not contest the factual statements of plaintiff's medical history.

         Plaintiff was born on October 12, 1964. He filed a claim for disability insurance benefits on March 12, 2013, alleging disability onset on September 14, 2011. His claim was denied on August 7, 2013, and upon reconsideration on November 27, 2013. Upon his request, a hearing before an Administrative Law Judge (“ALJ”) was held on January 20, 2014. In a decision dated May 29, 2015, the ALJ denied plaintiff's claim for disability benefits. On December 7, 2016, the Appeals Council denied the request for review.

         The ALJ found that plaintiff had medically determinable and “severe” impairments of ischemic heart disease, atrial fibrillation, panic disorder, and alcohol abuse in early remission. She found that plaintiff had non-severe impairments of hypertension, diabetes mellitus, obstructive sleep apnea, retinopathy, cataracts and cirrhosis. She found that plaintiff was not “disabled” because he did not have an impairment or combination thereof that meets or medically equals a “listed impairment.” She determined that plaintiff had residual functional capacity (“RFC”) to perform “light work as defined in 20 C.F.R. § 404.1567(b), with the exception of frequent balancing, stooping kneeling crouching and climbing of ramps and stairs. She found that plaintiff is limited to occasional crawling and never climbing ladders, ropes or scaffolds; is limited to avoiding concentrated exposure to heat, cold and vibrations; is limited to occasional exposure to unprotected heights and dangerous moving machinery; can operate and drive motor vehicles with corrective lenses; and is limited to simple, routine tasks involving no more than simple, short instructions and simple, work-related decisions with few work place changes. She found that he could perform his past work as an assembly line worker, and alternatively, he was capable of finding work that existed in the national economy.


         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 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 challenges the denial on the grounds that the ALJ failed to develop the record to determine plaintiff's residual functional capacity (“RFC”); erred in her evaluation of the evidence; and made a flawed vocational finding.

         RFC Determination

         Plaintiff maintains that the ALJ should have obtained the medical source statements from plaintiff's gastroenterologist (Dr. Mario Ricci), cardiologist (Dr. Joseph Corning), primary care physician (Dr. Michael Kalinowski), and the surgeon who performed the hernia surgery in June 2011 (Dr. Peter Romeyn), prior to the alleged disability onset date. Defendant counters that the medical source statements were not necessary because the medical record was ...

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