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Etemi v. Berryhill

United States District Court, D. Connecticut

March 27, 2018

IDAET ETEMI, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          STEFAN R. UNDERHILL, United States District Judge

         In this Social Security appeal, Idaet Etemi moves to reverse the decision by the Social Security Administration (“SSA”) denying her claim for disability insurance benefits. Mot. to Reverse, Doc. No. 21. The Commissioner of Social Security moves to affirm the decision. Mot. to Affirm, Doc. No. 30. For the reasons set forth below, I DENY Etemi's Motion to Reverse the Decision of the Commissioner (Doc. No. 21) and GRANT the Commissioner's Motion to Affirm its Decision (Doc. No. 30).

         I. Standard of Review

          The SSA follows a five-step process to evaluate disability claims. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). First, the Commissioner determines whether the claimant currently engages in “substantial gainful activity.” Greek v. Colvin, 802 F.3d 370, 373 n.2 (2d Cir. 2015) (per curiam) (citing 20 C.F.R. § 404.1520(b)). Second, if the claimant is not working, the Commissioner determines whether the claimant has a “‘severe' impairment, ” i.e., an impairment that limits his or her ability to do work-related activities (physical or mental). Id. (citing 20 C.F.R. §§ 404.1520(c), 404.1521). Third, if the claimant does not have a severe impairment, the Commissioner determines whether the impairment is considered “per se disabling” under SSA regulations. Id. (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). If the impairment is not per se disabling, then, before proceeding to step four, the Commissioner determines the claimant's “residual functional capacity” based on “all the relevant medical and other evidence of record.” Id. (citing 20 C.F.R. §§ 404.1520(a)(4), (e), 404.1545(a)). “Residual functional capacity” is defined as “what the claimant can still do despite the limitations imposed by his [or her] impairment.” Id. Fourth, the Commissioner decides whether the claimant's residual functional capacity allows him or her to return to “past relevant work.” Id. (citing 20 C.F.R. §§ 404.1520(e), (f), 404.1560(b)). Fifth, if the claimant cannot perform past relevant work, the Commissioner determines, “based on the claimant's residual functional capacity, ” whether the claimant can do “other work existing in significant numbers in the national economy.” Id. (citing 20 C.F.R. §§ 404.1520(g), 404.1560(b)). The process is “sequential, ” meaning that a petitioner will be judged disabled only if he or she satisfies all five criteria. See id.

         The claimant bears the ultimate burden to prove that he or she was disabled “throughout the period for which benefits are sought, ” as well as the burden of proof in the first four steps of the inquiry. Id. at 374 (citing 20 C.F.R. § 404.1512(a)); Selian, 708 F.3d at 418. If the claimant passes the first four steps, however, there is a “limited burden shift” to the Commissioner at step five. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). At step five, the Commissioner need only show that “there is work in the national economy that the claimant can do; he [or she] need not provide additional evidence of the claimant's residual functional capacity.” Id.

         In reviewing a decision by the Commissioner, I conduct a “plenary review” of the administrative record but do not decide de novo whether a claimant is disabled. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam); see Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam) (“[T]he reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.”). I may reverse the Commissioner's decision “only if it is based upon legal error or if the factual findings are not supported by substantial evidence in the record as a whole.” Greek, 802 F.3d at 374-75. The “substantial evidence” standard is “very deferential, ” but it requires “more than a mere scintilla.” Brault, 683 F.3d at 447-48. Rather, substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Greek, 802 F.3d at 375. Unless the Commissioner relied on an incorrect interpretation of the law, “[i]f there is substantial evidence to support the determination, it must be upheld.” Selian, 708 F.3d at 417.

         II. Facts

         Idaet Etemi filed for Social Security disability benefits on December 6, 2012, alleging a period of disability from January 2, 2009. See Disability Determination Decision, R. at 11. At the time of the alleged onset of disability, Etemi was 44 years old. Int'l Disability Determination Explanation, R. at 50. Etemi identified her disability as right and left arm injuries, asthma, high blood pressure, thyroid, and Addison's Disease. Id. The SSA initially denied her claim on January 29, 2013, finding that although Etemi's “condition resulted in some limitations in [her] ability to perform work related activities … [her] condition was not disabling.” Id. at 59. The SSA went on to say that it “studied [her] records, including the medical evidence and [her] statements, and considered [her] age and education in determining how [her] condition affected [her] ability to work.” Id. Further, it stated it did not “have sufficient vocational information to determine whether [she could] perform any of [her] past relevant work.” Id. In the agency's view, she could “adjust to other work.” Id. At the time of the agency's denial, Etemi was 49 years old. Id.

         Etemi sought reconsideration, alleging that her right arm was numb from her “shoulder down to fingers.” Notice of Reconsideration, R. at 84. The SSA again denied her claim on reconsideration on April 25, 2013 stating that her “condition is not severe enough to keep [her] from working” and that she can “adjust to other work.” Id. In the Reconsideration Explanation, it was noted that Etemi's statements about her conditions were not “substantiated by the objective medical evidence alone” and were only “partially credible.” Reconsideration Explanation, R. at 70.

         Etemi requested a hearing before an Administrative Law Judge, which was held via video-conference on October 9, 2014. Tr. of ALJ Hr'g, R. at 29. At the hearing, ALJ Gerald Resnick questioned Etemi about her conditions and treatment history, particularly asking questions regarding her capacity to perform daily working and living functions. Id. at 35-37. Etemi responded that she could only sit comfortably for “10, 15 minutes, ” could stand for “five, 10 minutes, ” and could walk for “10, 15 minutes.” Id. at 35-36. She further testified that she could lift and carry “three to five pounds.” Id. at 36. The ALJ asked Etemi a number of questions regarding the use of her hands, to which she responded that “a lot of [her] fingers on [her] right side [don't] even work.” Id. at 37. She testified that she did not think she could work eight hours per day, five days per week. Id. at 39. She testified that she didn't sleep well at night, so she laid down from 2:00 pm to 5:00 pm every day. Id. at 42.

         The ALJ then heard testimony from Kenneth R. Smith, a neutral vocational expert who testified that Etemi was employed in “light and medium” housekeeping. Tr. of ALJ Hr'g, R. at 43. The ALJ then asked Smith to assume that the ALJ found Etemi's testimony credible that she “needed to lie down three hours in the afternoon … can only sit comfortably for 15 minutes, stand for five to 10 minutes, life and carry three to five pounds … can only walk for 10 to 15 minutes, that she has problems with her right thumb … [s]he can only write for three to four minutes[, s]he'd be unable to perform reaching above her right shoulder[, and s]he'd be unable to perform repetitive pushing or pulling of arm controls [and that she could not] concentrate and focus [and could not] work eight hours a day five days a week” and has a problem with “dust, humidity, fumes, and pollutants.” Id. at 44-45. Based upon those assumptions, Smith testified that there were no jobs available to her. Id. at 45.

         The ALJ then referenced Exhibit 3A, the Reconsideration Explanation, R. at 62, and changed the hypothetical to being able to “lift and carry 20 pounds occasionally and 10 pounds frequently, sits six hours out of an eight hour work day, stand and walk six hours out of an eight hour work day, frequently climb ramps and stairs, occasionally climb ladders, ropes, or scaffolding, frequently balance, frequently stoop, frequently kneel, frequently crouch, frequently crawl” and “avoid exposure to dust, fumes, and pollutants.” Tr. of ALJ Hr'g, R. at 45. With those assumptions, Smith testified that there was “light work” available as an assembler, packager, or inspector. Id. at 46. On cross-examination by Etemi's lawyer, Smith stated that those jobs would require reaching over the head, and would not be available at a “full-time competitive basis” if the employee missed two or three days of work per month. Id. at 47.

         On October 30, 2014, the ALJ issued an opinion in which he found that Etemi “was not under a disability within the meaning of the Social Security Act from January 2, 2009, through the date last insured[, September 30, 2012].” ALJ Decision, R. at 11. At the first step, the ALJ found that Etemi “did not engage in substantial gainful activity during the period from her alleged onset date of January 2, 2009, through her date last insured of September 30, 2012.” Id. at 13. At the second step, the ALJ determined that Etemi's impairments of “asthma/chronic obstructive pulmonary disease, carpal tunnel syndrome status post[-surgery], and tenosynovitis of the right thumb/finger status post-surgery” were “severe impairments” that “have more than a minimal impact on [her] functioning.” Id.

         The ALJ cited five years of medical records and found that a number of her claimed impairments were not severe. Id. at 13-16. He opined:

[Etemi] occasionally reported chest pain; however extensive cardiac examinations and tests were unremarkable and cardiac catheterization was not indicated. Further, she had an episode of rectal bleeding and diverticulosis that resolved with limited treatment. While she alleged a hearing loss, testing revealed normal hearing then a slight/mild loss and no source observed difficulty hearing. She reported dizziness and sinus symptoms with unremarkable examinations. She also had two thyroid aspirations that revealed a benign hyperplastic nodule that did not require treatment. Further, she had mild, non-positional obstructive sleep apnea with no significant treatment/symptoms. While she told [her doctor] that she had recurrent nosebleeds since childhood, she had no emergency room visits for such, she denied epistaxis in records, and there was otherwise no mention of this. She has controlled hypertension … within normal blood pressure and no end organ damage or other associated symptoms. She has a diagnosis of reflux disease yet she generally denied heartburn. She also reported migraines, hyperthyroidism, a hiatal hernia, a rash, acne, and anemia yet she generally denied headaches, she had little treatment for these, and exams were unremarkable. She had controlled diabetes with treatment as she had no symptoms despite an intermittent elevation in HgA1c. She had an episode of left breast tenderness with unremarkable exams and a benign biopsy. She is overweight at 60 to 64 inches and 193 to 174 pounds yet she did not report any associated symptoms/limitations. Based on the limited findings on examinations and testing, the positive response to treatment, the lack of presentation for some complaints, and her activities, these were not severe impairments.

Id. at 15-16. The ALJ also noted that “[b]ased on the limited presentation and complaints and the general observations that [Etemi] was pleasant with a normal/appropriate affect, the record does not support a ...

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