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Demico v. Berryhill

United States District Court, D. Connecticut

May 17, 2018

MARCELLO DEMICO
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY

          RULING ON CROSS MOTIONS

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.[1] 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. [Doc. #31].

         For the 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 DENIED.

         I. PROCEDURAL HISTORY[2]

         Plaintiff 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.[3] Plaintiff's application was denied initially on July 19, 2013, see Tr. 112-19, and upon reconsideration on May 3, 2014. See Tr. 138-40.

         On 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).

         Plaintiff, 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].[4] 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 pain”; and
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.

         II. STANDARD OF REVIEW

         The 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).

         The 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).

         “[T]he 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, 1994)).

         It is 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) (citations omitted).

         III. SSA LEGAL STANDARD

         Under the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits. 42 U.S.C. §423(a)(1).

         To be 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 considered “severe”).[5]

         There 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 ...


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