Hernandez v. Berryhill

          RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS

          STEFAN R. UNDERHILL, UNITED STATES DISTRICT JUDGE

         In this Social Security appeal, Linda Hernandez 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. 27. Although I conclude that most of Hernandez's arguments for reversal lack merit, I hold that the ALJ erred in failing to consider Hernandez's kidney stones in his analysis and, subsequently, erred in failing to include the limitation in his hypothetical questions to the vocational expert. Further, I hold that the ALJ erred in relying on the vocational expert's inadequate testimony regarding the number of jobs in the national economy that were available to Hernandez. As a result of the ALJ's reliance on that testimony, his finding that Hernandez had available to her a significant number of jobs in the national economy was not supported by substantial evidence. Therefore, I GRANT Hernandez's Motion to Reverse the Decision of the Commissioner (Doc. No. 21) and DENY the Commissioner's Motion to Affirm its Decision (Doc. No. 27).

         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

         Linda Hernandez filed for Social Security disability benefits and supplemental security income on October 1, 2013 alleging a period of disability from December 2, 2011. Int'l Disability Determination Explanation, R. at 70. At the time of the alleged onset of disability, Hernandez was 40 years old. Id. Hernandez identified her disability as depression, back issue, clubbed feet, and high blood pressure. Id. The SSA initially denied her claim on March 27, 2014, finding that Hernandez's “condition result[ed] in some limitations in [her] ability to perform work related activities … [her] condition [was] not severe enough to keep [her] from working.” Id. at 81. The SSA went on to say that they “considered the medical and other information and work experience in determining how [her] condition affect[ed her] ability to work.” Id. Further, they stated they did not “have sufficient vocational information to determine whether [she] can 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, Hernandez was almost 43 years old. Id. at 70.

         On April 8, 2014, Hernandez sought reconsideration of the agency's decision, alleging that her condition had “gotten worse since her last disability report was completed.” Notice of Reconsideration, R. at 138; Reconsideration Explanation, R. at 95. The SSA again denied her claim on reconsideration on May 20, 2014, stating that her “condition is not severe enough to keep [her] from working” and that she can “adjust to other work.” Id. at 107.

         On June 2, 2014, Hernandez requested a hearing before an Administrative Law Judge; Hr'g Request, R. at 162; which was held on May 7, 2015. Tr. of ALJ Hr'g, R. at 45. At the hearing, ALJ Ronald Thomas questioned Hernandez about her conditions and treatment history, particularly asking questions regarding her capacity to perform daily working and living functions. Id. at 50-58. Hernandez testified that she had worked at Fair Haven Community Health Center for twelve years as a part time medical records clerk until she left in 2011 for health reasons. Id. at 50-51. She testified that she has club feet and uses a cane to walk, that she has back and hip pain because she has “one leg longer than the other … [and] one hip higher than the other.” Id. She testified that she last had surgery on her feet “in [her] early 20s” and doctors have told her “there's really nothing else they can do.” Id. at 53-54. She also testified that she takes over-the-counter pain medication for her back pain and takes prescription medication for depression. Id. at 54. Additionally, she testified that she has kidney stones in both of her kidneys and has a “stent in both sides.” Id. at 55.

         Regarding her physical limitations, Hernandez testified that she cannot lift anything, Tr. of ALJ Hr'g, R. at 52; she does things around the house but has to “take [her] time, ” id. at 56; she has to take baths instead of showers because “it's hard for [her] to stand on [her] feet, ” id.; her live-in children do most of the housework so she doesn't have to “lift[] or bend[], ” id.; she goes grocery shopping, id.; she does not drive or take public transportation, id. at 56-57; she does not go out much, does not travel, and has no hobbies. Id. at 57-58. Her non-attorney representative, Stephen Eby, asked her about her depression, and Hernandez testified that she has had depression since she was a child but that it is “worse now.” Id. at 59. She testified that she was depressed that she was “born with club feet” and because she was “sexually molested [as a child] by a family member.” Id. She testified that her depression makes it “hard for [her] to concentrate sometimes” and makes her “forget everything.” Id. at 60. She also testified that she previously had a drinking problem but is “doing better now” and had been sober for about one year. Id. at 60-61.

         The ALJ then heard testimony from John Matzilevich, a neutral vocational expert who testified that Hernandez was employed as a medical records clerk which is a “semi-skilled job” with a “light” exertion level. Tr. of ALJ Hr'g, R. at 62-63. The ALJ then asked Matzilevich to assume “an individual of [Hernandez's] age, education, and past relevant work experience, who is limited to [a] sedentary” exertion level, and that the individual “has a further limitation of being unable to complete tasks from beginning to end on a consistent basis, and is unable to maintain competitive pace for more than 80 percent of the time in the work place.” Id. at 63. In response, Matzilevich opined that “there would be no jobs” for that individual. Id. The ALJ then asked Matzilevich a separate hypothetical and to again assume “an individual of [Hernandez's] age, education, and past educational work experience, who is limited to [a] sedentary” exertion level, and who “needs the use of a cane to ambulate;” can “occasional[ly]” bend, squat, twist, climb, balance, kneel, and crawl; and can “occasional[ly] interact[] with coworkers, with the public, and with the supervisors.” Id. at 63-64. Matzilevich opined that “there are other jobs” for that individual, other than the prior work Hernandez had done. Id. at 64. He offered three options: (1) “document preparer” with 28, 291 national jobs and 207 in Connecticut; (2) “addressing clerk” with 12, 456 national jobs and 105 in Connecticut; and (3) “trimmer, a press clipping” with 7, 516 national jobs and 52 in Connecticut. Id. at 64-65.

         On June 23, 2015, the ALJ issued an opinion in which he found that Hernandez was not “under a disability within the meaning of the Social Security Act from December 2, 2011, through the date of th[e] decision.” ALJ Decision, R. at 9. At the first step, the ALJ found that Hernandez “ha[d] not engaged in substantial gainful activity since December 2, 2011, the alleged onset date.” Id. at 11. At the second step, the ALJ determined that Hernandez's impairments of “bilateral club foot deformity; bilateral hammertoe deformity; depressive disorder; anxiety disorder; and alcohol abuse disorder in variable remission” were “severe impairments” that “impose[] more than a minimal limitation on [Hernandez's] ability to perform basic work activities.” Id. The ALJ ruled that Hernandez's hip and back pain were not “medically determinable impairments” because there was “no evidence of any formal medical treatment or diagnostic evaluations for the … alleged hip and back pain” and were supported only by Hernandez's “statement of symptoms.” Id. at 11-12. Additionally, the ALJ ruled that Hernandez's history of alcohol abuse was “not a factor material to the determinations of disability” because although she reported “extensive alcohol abuse, ” she testified that “she had been sober for about one year” and “[t]he record [did] not indicate that her mental impairments were significantly worse or significantly improved based on her level of substance abuse.” Id. at 12.

         At the third step, the ALJ determined Hernandez “d[id] not have an impairment or combination of impairments that me[t] or medically equal[ed] the severity of one of the listed impairments[.]” ALJ Decision, R. at 12. Specifically, he stated that he considered the criteria for “dysfunction of a major joint” and opined that “[n]o treating or examining physician ha[d] proffered findings that [were] equivalent in severity” to major joint dysfunction. Id. Additionally, he stated that he considered “affective disorders” and “anxiety-related disorders” and found that Hernandez's “mental impairments, considered singly and in combination, d[id] not meet or medically equal” those listings. Id. He found that she had a “mild limitation” in activities of daily living, a “moderate limitation” in social functioning, a “mild limitation” in concentration, persistence, or pace, and has had “no episodes of decompensation.” Id. at 12-13. Further, he found that “there [was] no evidence in the record to show that [Hernandez's] anxiety … resulted in a complete inability to function independently outside of her home.” Id. at 13.

         The ALJ then assessed Hernandez's residual functional capacity, and found that she could “perform sedentary work” with certain limitations. ALJ Decision, R. at 14. Those limitations were that Hernandez (1) “require[d] the use of a cane for ambulation, ” (2) “could occasionally bend, squat, twist, climb, balance, kneel, or crawl, ” and (3) “could occasionally interact with coworkers, supervisors, or the general public.” Id. The ALJ stated that he “considered all symptoms and the extent to which th[ose] symptoms [could] reasonably be accepted as consistent with the objective medical evidence and other evidence” as well as “opinion evidence” in making his determination. Id. The ALJ cited numerous medical records, id. at 14-18, and concluded that Hernandez's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Hernandez's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible[.]” Id. at 18. The ALJ discredited Hernandez's testimony regarding the severity of her limitations because “the objective medical evidence of record [was] not consistent with [Hernandez's] allegations regarding her physical and mental impairments …, the record [did] not indicate that [Hernandez had] made any persistent complaint of side effect from medication or that medical providers have seen a need to make any significant change in the type or dose of medication … [, and Hernandez had] reported a range of daily activities that are not generally consistent with her allegations of disabling physical and mental impairments.” Id. at 19.

         At the fourth step, the ALJ determined that Hernandez was “unable to perform any past relevant work." ALJ Decision, R. at 19. At the fifth step, the ALJ concluded that, based on Hernandez's “age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [Hernandez] c[ould] perform.” Id. at 20. The ALJ further stated that “[b]ased on the testimony of the vocational expert … [Hernandez was] capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” Id. at 21. “A finding of ‘not disabled' [was] therefore appropriate, ” and the ALJ denied Hernandez's request for disability benefits. Id. at 21.

         Hernandez requested a review of the ALJ's decision by the SSA's Appeals Council on August 11, 2015. Request for Review of Hearing Decision/Order, R. at 5. Holding that there was “no reason … to review the [ALJ]'s decision, ” the Appeals Council “denied [Hernandez's] request for review” on January 4, 2017. Notice of Appeals Council Action, R. at 1-4. Hernandez then filed a complaint before this court on March 2, 2017 urging reversal of the Commissioner's decision. Compl., Doc. No. 1. Hernandez filed a Motion to Reverse the Decision of the Commissioner on September 12, 2017. Mot. to Reverse, Doc. No. 21. The Commissioner filed a Motion to Affirm its decision on February 9, 2018. Mot. to Affirm, Doc. No. 27.

         III. Discussion

         On review, Hernandez asserts that the ALJ's “findings are not supported by substantial evidence in the record as a whole and/or that the [ALJ]'s decision was not rendered in accordance with law. Mot. to Reverse, Doc. No. 21, at 1. Specifically, she contends: (1) that the ALJ failed to follow the treating physician rule, Mem. Supp. Mot. Reverse, Doc. No. 21-1, at 15; (2) that the ALJ failed to develop the record, id. at 24; (3) that the ALJ failed to find that certain physical conditions were “severe impairments, ” id. at 29; (4) that the ALJ improperly evaluated Hernandez's claims of pain, id. at 31; and (5) that the ALJ's vocational analysis was defective, id. at 35. The Commissioner responds that “the ALJ's decision is supported by substantial evidence and is legally correct, ” and should therefore be affirmed. Mem. Supp. Mot. Affirm, Doc. No. 27, at 2.

         A. Did the ALJ fail to follow the treating physician rule?

         Hernandez argues that the ALJ failed to follow the treating physician rule and gave “greater weight to the opinions of State Agency document reviewers” than Hernandez's treating physician. Mem. Supp. Mot. Reverse, Doc. No. 21-1, at 16.

         “The treating physician rule provides that an ALJ should defer ‘to the views of the physician who has engaged in the primary treatment of the claimant, '” but need only assign those opinions “controlling weight” if they are “well-supported by medically acceptable clinical and laboratory diagnostic techniques and … not inconsistent with the other substantial evidence in [the] case record.”^[1] Cichocki v. Astrue, 534 F. App'x 71, 74 (2d Cir. 2013) (summary order) (quoting Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); 20 C.F.R. § 404.1527(c)(2)). When the ALJ gives controlling weight to a non-treating physician, and he does not give the treating source's opinion controlling weight, he must “apply the factors listed” in SSA regulations, 20 C.F.R. § 404.1527(c)(2), including “(1) the frequency, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). After considering those factors, the ALJ must “comprehensively set forth [his] reasons for the weight assigned to a[n] … opinion, ” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004), and provide “good reasons” for the weight assigned. Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008). But “where the ALJ's reasoning and adherence to the regulation are clear, ” he need not “slavish[ly] recite[] each and every factor” listed in the regulations. Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013) (summary order). Moreover, “[g]enuine conflicts in the medical evidence are for the Commissioner”-not the court-“to resolve.” Burgess, 537 F.3d at 128.

         The Second Circuit has “cautioned that ALJs should not rely heavily on the findings of consultative physicians after a single examination, ” and has advised that, ordinarily, “a consulting physician's opinions or reports should be given little weight.” Selian, 708 F.3d at 419; Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990). In some circumstances, however, “the report of a consultative physician may constitute [substantial] evidence.” See Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983); see also Prince v. Astrue, 490 F. App'x 399, 401 (2d Cir. 2013) (“consultative examinations were still rightly weighed as medical evidence”); Petrie v. Astrue, 412 F. App'x 401, 405 (2d Cir. 2011) (summary order) (“the report of a consultative physician may constitute … substantial evidence”). The question here is whether the ALJ sufficiently provided “good reasons” for weighing the opinions of the consultative physicians-Dr. Bernstein, Dr. Khan, Dr. Mongillo, Dr. Hanson, and Dr. Hill-more heavily than the opinion of Hernandez's treating physician-Dr. Anderson. See Burgess, 537 F.3d at 129.

         With respect to Hernandez's physical impairments, the ALJ stated that he gave “some weight” to the assessments of Dr. Abraham Bernstein and Dr. Khurshid Khan, state non-examining physicians; “less weight” to the assessment of Dr. Sharon Anderson, Hernandez's treating physician; and “some weight”/“less weight” to the assessment of Dr. Frank Mongillo, a consultative examiner. ALJ Decision, R. at 18-19.

         In Dr. Bernstein's report dated March 27, 2014, he opined that Hernandez could occasionally lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk for 3 hours; sit for 6 hours in an 8-hour workday; push and/or pull; occasionally climb ramps/stairs, ladders/ramps/scaffolds; occasionally stoop, kneel, crouch, and crawl; and frequently balance. Int'l Disability Determination Explanation, R. at 78. Dr. Bernstein opined that Hernandez could perform sedentary, unskilled work. Id. at 80. In his report dated May 29, 2014, Dr. Khan made the same findings as Dr. Bernstein regarding Hernandez's physical abilities. Reconsideration Disability Determination Explanation, R. at 102-103. The ALJ stated that those assessments were “generally consistent with the objective record viewed as a whole” but also that he gave Hernandez's “subjective allegations the benefit of the doubt by accounting for a somewhat more restrictive range of abilities in the residual functional capacity assessment[.]” ALJ Decision, R. at 18.

         On September 26, 2014, Dr. Anderson opined in a letter that Hernandez had a “fair prognosis” with respect to her “club foot deformity, ” depression, hypertension, and nephrolithiasis. Letter from Dr. Anderson, R. at 567. She further opined that Hernandez was “unable to walk or stand for long periods of time … [and] goes through episodes of worsened symptoms of depression” and, accordingly, Hernandez was “unable to work for a period of 6-12 months.” Id. In a May 28, 2015 Disability Questionnaire, Dr. Anderson opined that Hernandez could sit for 6 hours per day; could stand/walk for 1 hour per day; could frequently lift/carry over 50 pounds; had no limitation using her hands and arms; had frequent “pain, fatigue, or other symptoms severe enough to interfere with [her] attention and concentration;” and was “likely to be absent from work as a result of [her] impairments or treatment … [m]ore than three times a month.” Disability Questionnaire, R. at 648-651.

         In giving “less weight” to Dr. Anderson's findings, the ALJ stated: (1) “the determination of disability is a matter reserved to the Commissioner” and Dr. Anderson's opinion that Hernandez could not work for six to twelve months was “not entitled to any significant weight;” (2) Dr. Anderson's “proffered physical limitations … are inconsistent with [Hernandez]'s conservative, effective treatment history” because “there is no evidence that her impairment has become exacerbated during the time period in question;” (3) Dr. Anderson's “proffered limitations are inconsistent with [Hernandez]'s reported activities of daily living;” and (4) Dr. Anderson's “proffered limitations are inconsistent with [Hernandez]'s examination findings” because she “does not have a significant gait abnormality, and there is no evidence indicating that she would be nearly completely unable to walk with the assistance of a cane.” ALJ Decision, R. at 18.

         In his March 20, 2014 assessment, Dr. Mongillo opined that Hernandez had a “stiff gait” but “did not have any focal gait abnormalities.” Determination Service Report, R. at 358. Further, he opined that she had “some difficulty walking or standing for prolonged periods of time” and had “some tenderness and spasm in her low back.” Id. at 359. He determined that Hernandez “could do light or moderate work, certainly could do sedentary work but would have difficulty with extended periods of time on her feet.” Id. The ALJ gave “some weight” to Dr. Mongillo's assessment to the extent that “it sets forth an ability to perform sedentary work activity that does not involve ‘extended periods of time on her feet'” and “less weight” to Dr. Mongillo's assessment to the extent that it sets forth an ability to perform “light work ...