United States District Court, D. Connecticut
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 ...