United States District Court, D. Connecticut
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.
Brian Dudley (“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 his applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) under the Act. Plaintiff has moved for an
order reversing the decision of the Commissioner or remanding
to the Commissioner for a new hearing. [Doc. #17]. Defendant
has filed a cross-motion seeking an order affirming the
decision of the Commissioner. [Doc. #24].
reasons set forth below, plaintiff's Motion for Order
Reversing the Decision of the Commissioner or in the
Alternative Motion for Remand for a Hearing [Doc.
#17] is DENIED, and defendant's
Motion for an Order Affirming the Decision of the
Commissioner [Doc. #24] is
filed concurrent applications for DIB and SSI on August 22,
2012, alleging disability beginning January 1,
2012.See Certified Transcript of the
Administrative Record, Doc. #14, filed on July 19, 2016,
(hereinafter “Tr.”) at 203-21. Plaintiff's
applications were denied initially on March 14, 2013, see Tr.
140-47, and upon reconsideration on October 9, 2013. See Tr.
150-152. Plaintiff has since amended his alleged onset date
to September 18, 2012. See Tr. 284; see also Tr. 18.
November 4, 2014, plaintiff, represented by Attorney Mark
Waller, appeared and testified at a hearing before
Administrative Law Judge (“ALJ”) I. K.
Harrington. See Tr. 36-68; 71-83. Vocational Expert
(“VE”) Richard B. Hall testified by telephone at
the hearing. See Tr. 69-71; 83-89; 196-200. On March 10,
2015, the ALJ issued an unfavorable decision. See Tr.15-35.
On March 8, 2016, the Appeals Council denied plaintiff's
request for review, thereby making the ALJ's March 10,
2015, decision the final decision of the Commissioner. See
Tr. 1-4. The case is now ripe for review under 42 U.S.C.
now represented by Attorney Olia Yelner, timely filed this
action for review and now moves to reverse the
Commissioner's decision or for remand. [Doc. #17]. On
appeal, plaintiff argues:
1. The ALJ erred at step two by not finding plaintiff's
osteoarthritis and hearing loss to be severe impairments;
2. The ALJ erred at step three by finding that plaintiff does
not meet Listing 12.02;
3. The ALJ failed to follow the treating physician rule, and
did not give sufficient weight to the opinions of Dr. Khan,
APRN Rector, and Dr. Kelly;
4. The ALJ erred in her Residual Functional Capacity
(“RFC”) determination because it does not include
limitations related to hearing loss and osteoarthritis; and
5. The ALJ erred in her assessment of plaintiff's
See generally Doc. #17-1 at 8-16. As set forth below, the
Court finds that ALJ Harrington did not err as contended.
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) (citation omitted).
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. 3:13CV00073(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,
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, 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); 20 C.F.R.
§§404.1520(c), 416.920(c) (requiring that the
impairment “significantly limit ... physical or
mental ability to do basic work activities” to be
considered “severe” (alterations
is a familiar five-step analysis used to determine if a
person is disabled. See 20 C.F.R. §§404.1520,
416.920. In the Second Circuit, the test is described as
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) (alteration added) (citing 68 Fed. Reg. 51155
(Aug. 26, 2003)); Poupore v. Astrue, 566 F.3d 303,
306 (2d Cir. 2009) (per curiam)). The 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, the ALJ
concluded that plaintiff was not disabled under the Act. See
Tr. 30. At step one, the ALJ found that plaintiff had not
engaged in substantial gainful activity since the amended
alleged onset date of September 18, 2012. See Tr. 21. At step
two, the ALJ found that plaintiff had the severe impairments
of major depressive disorder; substance abuse disorder; and
organic mental disorder. See Id. The ALJ determined
that plaintiff's hypertension, knee osteoarthritis, and
obesity were non-severe impairments. See Tr. 21-22.
three, the ALJ found that plaintiff's impairments, either
alone or in combination, did not meet or medically equal the
severity of any of the listed impairments in 20 C.F.R. Pt.
404, Subpt. P, App. 1. See Tr. 22-24. The ALJ specifically
considered Listings 12.02 (organic mental disorders), 12.04
(affective disorders), and 12.09 (substance addiction
disorders). See Id. Before moving on to step four,
the ALJ found plaintiff had the RFC
to perform a full range of work at all exertional levels but
with the following nonexertional limitations: the claimant is
limited to simple, routine tasks involving no more than
simple, short instructions. The claimant is limited to work
requiring only simple work-related decisions with few
workplace changes. Lastly, the claimant is limited to work
with no requirement to read instructions, write reports, or
perform math calculations.
Tr. 24. At step four, the ALJ concluded that plaintiff was
able to perform his past relevant work as a laborer. See Tr.
28. At step five, and after considering plaintiff's age,
education, work experience and RFC, as well as the testimony
of the VE, the ALJ alternatively found that, in addition to
his past relevant work as a laborer, other jobs existed in
significant numbers in the national economy that plaintiff
could perform. See Tr. 29-30.
raises five arguments in support of reversal or remand. The
Court will address each in turn.
Step Two: Osteoarthritis and Hearing Loss
asserts that the ALJ erred by finding that his osteoarthritis
and hearing loss were not severe impairments. See Doc. #17-1
at 8-9. The ALJ found that osteoarthritis was a
“medically determinable” but not severe
impairment. Tr. 21. The ALJ did not identify hearing loss as
two, the ALJ is required to determine the severity of
plaintiff's impairments. See 20 C.F.R.
§§404.1520(a)(4)(ii), 416.920(a)(4)(ii); see also
Id. at (c). At this step, plaintiff carries the
burden of establishing that he is disabled, and must provide
the evidence necessary to make determinations as to his
disability. See 20 C.F.R. §§404.1512(a),
416.912(a). An impairment is “severe” if it
significantly limits an individual's ability to perform
basic work activities. See Social Security Ruling
(“SSR”) 96-3p, 1996 WL 374181, at *1 (S.S.A. July
2, 1996). An impairment is “not severe” that
constitutes only a slight abnormality having a minimal effect
on an individual's ability to perform basic work
activities. See id.
evaluating this argument, the Court pauses to note that
plaintiff was represented by counsel at the time of his
hearing (not the same counsel that represents him now), and
that he made no argument that he was disabled as a result of
any physical conditions. He asserted only mental impairments
at the time of the hearing. Plaintiff testified that he had
“no physical problems” when asked about his
difficulties with work. Tr. 62; see also Tr. 248 (August 24,
2012, Disability Report: plaintiff reported having no
appointments scheduled for any physical conditions); Tr. 323
(December 4, 2012, Mental Health Nursing Admission Evaluation
Note: “Physical limitations: None, independent in
initial allegations of impairments included “back
pain” and “nerve pain, ” but no assertion
of hearing loss. Tr. 90, 112, 245. However, plaintiff
reported to the SSA that “he did not have any
limitations from back pain.” Tr. 117. Plaintiff's
pre-hearing memorandum noted that plaintiff suffered from
obesity, hypertension, and joint pain, but did not assert
that he had any functional limitations resulting from those
conditions, and did not indicate that those physical
conditions affected his ability to work. See Tr. 284.
Nevertheless, the Court turns to plaintiff's argument
that the ALJ erred at step two.