United States District Court, D. Connecticut
RULING ON CROSS MOTIONS
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.
Marcello DeMico (“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 application for Disability Insurance Benefits
(“DIB”) for the period of December 12, 2002,
through March 31, 2005. Plaintiff has moved to reverse that
portion of the Commissioner's decision denying him
benefits. [Doc. #26]. Defendant has filed a cross motion
seeking an order affirming the decision of the Commissioner.
reasons set forth below, plaintiff's Motion to Reverse
the Decision of the Commissioner [Doc. #26]
is GRANTED, to the extent plaintiff seeks a
remand for further administrative proceedings, and
defendant's Motion for an Order Affirming the Decision of
the Commissioner [Doc. #31] is
filed an application for DIB on May 9, 2013, alleging
disability beginning July 1, 2001. See Certified Transcript
of the Administrative Record, compiled on July 28, 2017, Doc.
#12 (hereinafter “Tr.”) 221-25. Plaintiff's
application was denied initially on July 19, 2013, see Tr.
112-19, and upon reconsideration on May 3, 2014. See Tr.
April 13, 2015, plaintiff, represented by Attorney Alan
Rubenstein, appeared and testified at a hearing before
Administrative Law Judge (“ALJ”) Eskunder Boyd.
See Tr. 40-111. Vocational Expert (“VE”) Ruth
Baruch testified by telephone at that hearing. See Tr. 87-89,
91-106, 270-74. Plaintiff's wife, Kim Alyson also
appeared and testified at the administrative hearing. See Tr.
80-87. On May 12, 2015, the ALJ issued a partially favorable
decision. See Tr. 19-39. On March 2, 2017, the Appeals
Council denied plaintiff's request for review, thereby
making the ALJ's May 12, 2015, decision the final
decision of the Commissioner. See Tr. 5-7. The case is now
ripe for review under 42 U.S.C. §405(g).
now represented by Attorney Ivan Katz, timely filed this
action for review and now moves to reverse that portion of
the Commissioner's decision finding plaintiff not
disabled from December 12, 2002, through March 31, 2005.
[Doc. #26]. On appeal, plaintiff argues:
1. The ALJ failed to properly develop the administrative ]
3. The ALJ's finding of medical improvement is not
supported by substantial evidence;
4. The ALJ failed to consider plaintiff's “chronic
5. The ALJ improperly relied on the testimony of the VE.
See generally Doc. #26-2 at 2-23. As set forth
below, the Court finds that the ALJ failed to properly
develop the administrative record.
STANDARD OF REVIEW
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).
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).
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,
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 Fed.Appx. 58, 59 (2d Cir. 2013)
SSA LEGAL STANDARD
the Social Security Act, every individual who is under a
disability is entitled to disability insurance benefits. 42
considered disabled under the Act and therefore entitled to
benefits, a plaintiff must demonstrate that he or she 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) (requiring
that the impairment “significantly limit ... physical
or mental ability to do basic work activities” to be
is a familiar five-step analysis used to determine if a
person is disabled. See 20 C.F.R. §404.1520. 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 ...