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Pino v. Berryhill

United States District Court, D. Connecticut

March 22, 2018

SYLVIA PINO, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REMANDING CASE

          Alvin W. Thompson United States District Judge

         For the reasons set forth below, the decision of the Commissioner is reversed and this case is remanded for additional proceedings consistent with this order.

         “A district court reviewing a final [] decision . . . [of the Commissioner of Social Security] pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). The court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. See Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's function is to ascertain whether the Commissioner applied the correct legal principles in reaching a conclusion and whether the decision is supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is “more than a mere scintilla or touch of proof here and there in the record.” Williams, 859 F.2d at 258.

         Here, the plaintiff claims that the ALJ did not apply the correct legal principles because he “failed to properly evaluate Ms. Pino's pain and functional limitations imposed by her pain, as described in her testimony; and 2) failed to properly determine Ms. Pino's Residual Functional Capacity.” Pl.'s Mem. to Reverse (“Doc. No. 15-1”) at 2. The defendant argues that the Administrative Law Judge's “decision is supported by substantial evidence and is based upon the application of the correct legal standards.” Def.'s Mem. to Affirm (Doc. No. 19-1) at 1.

         In order to determine whether a claimant is disabled within the meaning of the Social Security Act, the Administrative Law Judge (“ALJ”) must follow a five-step evaluation process: (1) consider whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities; (3) if so, ask whether, based solely on the medical evidence, the claimant has an impairment that “meets or equals” an impairment listed in Appendix 1 of the regulations; if so, and the claimant meets the duration requirements, the ALJ will find him or her disabled, without considering vocational factors such as age, education, and work experience; (4) if not, the ALJ asks whether, despite the claimant's severe impairment, he or she has the residual functional capacity (“RFC”) to perform his or her past work; and (5) if not, determine whether there is other work which the claimant could perform. See 20 C.F.R. § 416.920(a)(4)(i)-(v).

         In substance, the plaintiff challenges the ALJ's credibility findings when determining the RFC at Step Four. “When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and other limitations into account . . . .” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing 20 C.F.R. § 416.929); Connors v. Connecticut General Life Ins. Co., 272 F.3d 127, 136 (2d. Cir. 2001) (“It has long been the law of this Circuit that the subjective element of pain is an important factor to be considered . . . .” (citation and internal quotation marks omitted)). The Social Security regulations provide a two-step process for evaluating assertions of pain: First, determine whether there is a medically determinable physical impairment shown by medically acceptable clinical and laboratory diagnostic techniques that could reasonably be expected to produce the plaintiff's pain; and second, evaluate the intensity, persistence, and limiting effects of the symptoms to determine the extent to which those symptoms limit the individual's ability to do basic work activities. See 20 C.F.R. § 416.929(a)-(c); SSR 96-7p[1]. See also 42 U.S.C. § 423(d)(5)(A).

         In this case, the ALJ found that the plaintiff's left knee meniscal tear was a severe impairment (R. at 25) and that the medically determinable impairment could reasonably be expected to produce the plaintiff's pain (R. at 29) but found that the plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms” were “not entirely credible” (R. at 29) because “[t]he documentary medical evidence of record does not support a finding of the level of limitation alleged” by the plaintiff (R. at 30). Consequently, the ALJ did not credit her statements and incorporate them into the RFC except to the extent “portions thereof support the assigned” RFC (R. at 32).

         “In recognition of the fact that an individual's symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone, the regulations require that “any statements of the individual concerning his or her symptoms must be carefully considered if a fully favorable determination or decision cannot be made solely on the basis of objective medical evidence.” 20 C.F.R. § 416.929; SSR 96-7p.

         Pursuant to 20 C.F.R. § 416.929(c), when assessing the credibility of an individual's statements, in addition to objective medical evidence such as “reduced joint motion, muscle spasm and sensory deficit”, the ALJ must consider other kinds of evidence such as longitudinal history, information provided by medical and nonmedical sources and evidentiary inconsistencies and conflicts. The ALJ must also consider seven specific factors: (i) daily activities, (ii) location, duration, frequency, and intensity of pain or other symptoms, (iii) precipitating and aggravating factors, (iv) type, dosage, effectiveness, and side effects of medication, (v) treatment other than medication used for relief of pain or other symptoms, (vi) any measures used to relieve pain or other symptoms, and (vii) other factors concerning functional limitations and restriction due to pain or other symptoms. See 20 C.F.R. § 416.929(c)(3); SSR 96-7p.

         "When additional information is needed to assess the credibility of the individual's statements about symptoms and their effects, the adjudicator must make every reasonable effort to obtain available information that could shed light on the credibility of the individual's statements." SSR 96-7p.

         "The finding on the credibility of the individual's statements cannot be based on an intangible or intuitive notion . . . . The reasons for the credibility finding must be grounded in the evidence and articulated” and “must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." SSR 96-7p. See also Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988) (The basis for the credibility finding “must . . . be set forth with sufficient specificity to permit intelligible plenary review of the record.”) (citing Carroll v. Sec'y of Health and Human Serv., 705 F.2d 638, 643 (2d Cir. 1983)). “This [] is necessary in order to give the individual a full and fair review of his or her claim, and in order to ensure a well-reasoned determination or decision.” SSR 96-7p.

         In part, the ALJ supported his conclusion that the plaintiff's alleged limitations were not entirely credible with the MRIs taken on February 19, 2013 and March 6, 2015, the physical therapy records from September 17, 2013 through October 31, 2013, and Dr. Boland's neurological reports of the May 20, 2014 and July 24, 2014 consultations.

         As to the February 19, 2013 MRI, the Decision states:

An MRI from February 2013 found a small radial tear of the lateral meniscus and an underlying cartilage fissure. (Exhibit 4F) Around this time, physical examination findings revealed a full range of motion and no evidence of swelling . . .

R. at 28 (citing Ex. 8F). This mischaracterizes the report and the evidence. As to the report, the findings included

a linear full thickness articular cartilage fissure through mid to posterior lateral tibial plateau . . . . underlying osteochondral lesion in the lateral tibial plateau with moderate surrounding bone marrow edema likely reactive changes. There is a small overlying radial tear involving the free edge of the lateral meniscus at its junction of the body and posterior horn.

Ex. 4F at R. 273, Ex. 5F R. at 312.

         As to the reference to a “full range of motion”, the physical ...


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