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Dudley v. Berryhill

United States District Court, D. Connecticut

March 12, 2018

BRIAN DUDLEY
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

          ORDER

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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].

         For the 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 GRANTED.

         I. PROCEDURAL HISTORY[1]

         Plaintiff filed concurrent applications for DIB and SSI on August 22, 2012, alleging disability beginning January 1, 2012.[2]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.

         On 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. §405(g).

         Plaintiff, 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 credibility.

See generally Doc. #17-1 at 8-16. As set forth below, the Court finds that ALJ Harrington did not err as contended.

         I. STANDARD OF REVIEW

         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) (citation omitted).

         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. 3:13CV00073(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, 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).

         II. SSA LEGAL STANDARD

         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, 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 added)).[3]

         There 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 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.

Id.

         “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) (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. §§404.1545(a)(1), 416.945(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)).

         III. THE ALJ'S DECISION

         Following 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.

         At step 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.

         IV. DISCUSSION

         Plaintiff raises five arguments in support of reversal or remand. The Court will address each in turn.

         A. Step Two: Osteoarthritis and Hearing Loss

         Plaintiff 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 an impairment.

         At step 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.

         Before 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 ADL's”).

         Plaintiff's 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.

         1. ...


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