United States District Court, D. Connecticut
RANDY A. SHRACK
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY
RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE
DECISION OF THE COMMISSIONER AND ON THE DEFENDANT'S
MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE
M. Spector United States Magistrate Judge.
action, filed under § 205(g) of the Social Security Act,
42 U.S.C. § 405(g), seeks review of a final decision by
the Commissioner of Social Security [“SSA”]
denying the plaintiff Disability Insurance Benefits
about May 10, 2013, the plaintiff filed an application for
DIB benefits claiming he has been disabled since July 18,
2007, due to a “[s]pine handicap consisting of [two]
rods and [six] screws.” (Certified Transcript of
Administrative Proceedings, dated February 21, 2017
[“Tr.”] 219-220, 231; see Tr. 122). The
plaintiff's application was denied initially (Tr. 122-33;
see Tr. 134, 149-53) and upon reconsideration. (Tr.
135-47; see Tr. 148, 154-58). On April 29,
2014, the plaintiff requested a hearing before an
Administrative Law Judge [“ALJ”] (Tr. 159-160;
see Tr. 161-78), and on June 5, 2015, a hearing was
held before ALJ Edward F. Sweeney, at which the plaintiff and
a vocational expert, Estelle Hutchinson, testified. (Tr.
36-89). On September 25, 2015, ALJ Sweeney issued an
unfavorable decision denying plaintiff's claim for
benefits. (Tr. 16-35). On October 27, 2015, the plaintiff
requested review of the hearing decision (Tr. 13-15), and on
October 19, 2016, the Appeals Council denied the
plaintiff's request for review, thereby rendering the
ALJ's decision the final decision of the Commissioner.
December 15, 2016, the plaintiff filed his complaint in this
pending action (Doc. No. 1), and on March 31, 2017, the
defendant filed her answer and administrative transcript,
dated February 21, 2017. (Doc. No. 15; see Doc. Nos.
14, 16). On April 26, 2017, the case was transferred to
Magistrate Judge Joan G. Margolis upon consent of the parties
(Doc. No. 20; see Doc. No. 19), and on May 1, 2018,
the case was reassigned to this Magistrate Judge. (Doc. No.
25, 2017, the plaintiff filed his Motion to Reverse the
Decision of the Commissioner, with brief in support. (Doc.
No. 25; see Doc. Nos. 17-18, 21-24). On December 20,
2017, the defendant filed her Motion for an Order Affirming
the Decision of the Commissioner and brief in support. (Doc.
No. 35; see Doc. Nos. 26-27, 29-34).
reasons stated below, the plaintiff's Motion to Reverse
the Decision of the Commissioner (Doc. No. 25) is granted
in part and denied in part, and defendant's Motion
to Affirm (Doc. No. 35) is denied in part and granted in
part such that this case is remanded for the reasons
stated in this Ruling.
STANDARD OF REVIEW
scope of 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). The court may “set aside
the Commissioner's determination that a claimant is not
disabled only if the factual findings are not supported by
substantial evidence or if the decision is based on legal
error.” Burgess v. Astrue, 537 F.3d 117, 127
(2d Cir. 2008) (internal quotation marks & citation
omitted); see also 42 U.S.C. § 405(g).
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) (citation omitted); see Yancey
v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) (citation
omitted). The substantial evidence rule also applies to
inferences and conclusions that are drawn from findings of
fact. See Gonzalez v. Apfel, 23 F.Supp.2d 179, 189
(D. Conn. 1998) (citation omitted); Rodriguez v.
Califano, 431 F.Supp. 421, 423 (S.D.N.Y. 1977)
(citations omitted). However, the court may not decide facts,
reweigh evidence, or substitute its judgment for that of the
Commissioner. See Dotson v. Shalala, 1 F.3d 571, 577
(7th Cir. 1993) (citation omitted). Instead, the court must
scrutinize the entire record to determine the reasonableness
of the ALJ's factual findings. See Id.
Furthermore, the Commissioner's findings are conclusive
if supported by substantial evidence and should be upheld
even in those cases where the reviewing court might have
found otherwise. See 42 U.S.C. § 405(g);
see also Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d
Cir. 1997) (citation omitted); Eastman v. Barnhart,
241 F.Supp.2d 160, 168 (D. Conn. 2003).
THE ALJ'S DECISION
the five step evaluation process,  the ALJ found that the
plaintiff's date last insured under Title II of the
Social Security Act was December 31, 2012 (Tr. 21), and that
he has not engaged in substantial gainful activity from his
July 18, 2007 onset date through his date last insured. (Tr.
21, citing 20 C.F.R. § 404.1571 et
seq.). The ALJ concluded that the plaintiff has
the severe impairments of degenerative disc disease and
obesity (Tr. 22, citing 20 C.F.R. § 404.1520(c)), but
that the plaintiff does not have an impairment or combination
of impairments that meet or medically equal the severity of a
listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix
1 (Tr. 22, citing 20 C.F.R. §§ 404.1520(d),
404.1525, and 404.1526), and in particular, that the
plaintiff's degenerative disc disease does not meet
Listing 1.04. (Tr. 22). At step four, the ALJ found that the
plaintiff had the residual functional capacity
[“RFC”] to perform light work as defined in 20
C.F.R. § 404.1567(b), except that he “could
frequently climb ramps and stairs and never climb ladders,
ropes, or scaffolds[;] . . . frequently balance and
occasionally stoop, kneel, crouch, and crawl[; and] . . .
ha[s] to avoid exposure to vibration and workplace hazards
such as moving machinery and unprotected heights.” (Tr.
23-27). Finally, the ALJ found that the plaintiff was not
capable of performing any past relevant work (Tr. 28, citing
20 C.F.R. § 404.1565), but that, considering the
plaintiff's age, education, work experience, and RFC,
there were jobs that existed in significant numbers in the
national economy that the plaintiff could have performed
through his date last insured. (Tr. 28-29, citing 20 C.F.R.
§§ 404.1569 and 404.1569(a)). Accordingly, the ALJ
concluded that the plaintiff was not under a disability
between the alleged onset date of July 18, 2007 through
December 31, 2012, his date last insured. (Tr. 29, citing 20
C.F.R. § 404.1520(g)).
THE PLAINTIFF'S CLAIMS
plaintiff contends that the ALJ erred in his assessment of
the plaintiff's pain by failing to deal with the
plaintiff's claims of pain (Doc. No. 25-1
[“Pl.'s Mem.”] at 32-39), and addressing them
“under the guise of a credibility finding.”
(Id. at 34). According to the plaintiff, the ALJ
“cherry-picked” the record by noting the
plaintiff's “ability to ambulate throughout the
relevant period[, ]” the plaintiff's “ability
to care for his two children while his wife was at work[,
]” and the plaintiff's work on the farm. (Pl.'s
Mem. at 35-37; see Tr. 25, 27). The defendant argues
that the ALJ properly considered the plaintiff's
allegations of pain, and after doing so, concluded that they
were not entirely credible in light of their inconsistency
with other evidence in the record. (Doc. No. 35
[“Def.'s Mem.”] at 4-5).
the plaintiff contends that the ALJ erred in assigning
“great weight” to the opinions of the State
Agency medical consultants, while affording little weight to
the opinions of Dr. Mitchell Garden, and the medical source
statement of Dr. John Turchiano. (Pl.'s Mem. at 39-44).
The defendant argues that Dr. Garden did not provide a
medical opinion, but rather, reported “factual
assertions[, ]” and issued an opinion on the
plaintiff's ability to work, which is an opinion reserved
to the Commissioner. (Def.'s Mem. at 6-7). Additionally,
the defendant argues that Dr. Turchiano's opinion
post-dated the relevant period of the ALJ's decision, was
not supported by the objective medical evidence, and was
inconsistent with the other evidence in the record.
(Def.'s Mem. at 7-9).
ASSESSMENT OF THE PLAINTIFF'S PAIN
preliminary matter, the regulations provide “that
subjective assertions of pain alone cannot ground a
finding of disability.” Genier v. Astrue, 606
F.3d 46, 49 (2d Cir. 2010) (emphasis in original) (citing 20
C.F.R. § 404.1529(a)). Accordingly, first the ALJ must
decide whether the claimant suffers from a medically
determinable impairment that could reasonably be expected to
produce the symptoms alleged. 20 C.F.R. § 404.1529(b).
In this case, the ALJ concluded that the plaintiff has the
severe impairments of degenerative disc disease and obesity
(Tr. 22), and that the plaintiff's “medically
determinable impairments could reasonably be expected to
cause the alleged symptoms[.]” (Tr. 27).
the ALJ makes that decision, the ALJ must determine
“the extent to which [the claimant's] symptoms can
reasonably be accepted as consistent with the objective
medical evidence and other evidence” of record.
Genier, 606 F.3d at 49 (citing 20 C.F.R. §
404.1529(a)); see Watson v. Berryhill, No. 17-2156,
2018 WL 2123257, at *2-3 (2d Cir. May 9, 2018) (summary
order). In addition to weighing objective medical evidence,
the ALJ must consider the following: the claimant's daily
activities; the location, duration, frequency, and intensity
of pain or other symptoms; the factors that precipitate and
aggravate symptoms; the type, dosage, effectiveness and side
effects of any medications taken to alleviate the pain;
treatment, other than medication, received for pain relief;
any measures other than treatment that the individual uses to
relieve pain; and any other factors concerning functional
limitations and restrictions due to pain. Social Security
Ruling [“SSR”] 97-7p, 1996 WL 374186, at *3
(S.S.A. July 2, 1996); see also 20 C.F.R. §§
404.1529(c)(3)(i)-(vii); Meadors v. Astrue, 370
Fed.Appx. 179, 183-84 (2d Cir. 2010) (summary order);
Taylor v. Barnhart, 83 Fed.Appx. 347, 350-51 (2d
Cir. 2003) (summary order). As explained in SSR 96-7p,
“the extent to which an individual's statements
about symptoms can be relied upon as probative evidence in
determining whether the individual is disabled depends on the
credibility of the statements.” Id., 1996 WL
374186, at *4.
second step, the ALJ concluded that, although the
plaintiff's “medically determinable impairments
could reasonably be expected to cause the alleged symptoms .
. ., the claimant's statements . . . are not entirely
credible for the reasons explained in [the] decision.”
(Tr. 27). The ALJ stated that the plaintiff “reported a
full range of activities of daily living[, ]” from
caring for his two children while he wife was at work, to
preparing meals, performing some housework, mowing the lawn
with a tractor mower, and driving short distances. (Tr. 23).
He concluded that the “longitudinal medical record and
the claimant's reported activities of daily living
support a finding that his back impairment and obesity result
in some work-related limitations. His abilities to lift,
carry, and perform posturals are affected, and the [RFC]
reflects this.” (Tr. 27). The ALJ then noted that the
plaintiff could “ambulate independently[, ]” he
“complained of morning stiffness and nighttime
soreness[, ]” he denied weakness but reported leg
fatigue after prolonged walking, and months after the date
last insured, “without any significant intervention,
the claimant reported the ability to care for his two
children[, ]” one of whom was an infant for the
relevant period. (Tr. 27). The ALJ concluded, “In sum,
the claimant's reported activities of daily living and
his complaints are inconsistent with a debilitating spinal
impairment.” (Tr. 27). However, to reach this
conclusion, the ALJ focused on some reported activities of
daily living to the exclusion of the others, and failed to
consider the other factors articulated in 20 C.F.R.
§§ 404.1529(c)(ii)-(vii). See also SSR
97-7p, 1996 WL 374186, at *3.
ACTIVITIES OF DAILY LIVING
plaintiff testified at his hearing that he is the primary
daytime caregiver for his children. (Tr. 50, 249). He
reported that he plays with his son at the table because he
cannot get down on the floor to play with him. (Tr. 50).
Similarly, the plaintiff reported to Dr. Lauren Burke at the
Orthopedic Associates of Hartford, P.C., that he is able to
perform activities of daily living, including take care of
his children, but that he has lower back pain that causes
numbness, radiates down the back of both of his legs to his
ankles, and makes it difficult to rise from a seated
position. (Tr. 437, 497; see Tr. 437-39, 497-99).
The plaintiff also testified that he is able to bathe, dress
and change his son “when [he] need[s] to[, ]” but
he cannot lift his son onto the changing table and he
sometimes relies on his daughter for help. (Tr. 50, 250).
According to the plaintiff, he does “a little
bit” of dishwashing and sometimes “throw[s] a few
things in the washer” but otherwise does not do laundry
because he cannot carry laundry baskets around the house.
(Tr. 51, 252). The plaintiff only occasionally goes to the
grocery store with his wife because it requires too much
walking; when he does go with her, he sits in a motorized
cart. (Tr. 52). He uses a shower chair most of the time (Tr.
61) and requires his wife's assistance to dress and bathe
because his “mobility is limited and safety is a big
concern.” (Tr. 250). The plaintiff cooks meals for his
children at night and can cook anything prepared on the
stove, but cannot easily bend to reach the oven. (Tr. 51,
249, 251). The plaintiff's testimony is consistent with
Dr. Garden's medical record from April 2011 in which he
rated the severity of the plaintiff's low back pain as
“moderate[, ]” aggravated by activities, and he
noted that the plaintiff's range of motion was limited
due to pain, “especially forward bending.” (Tr.
659-62, 1545-47, 1550-52). The plaintiff testified at the
hearing that he cannot do outdoor chores such as mowing the
lawn or gardening (Tr. 51), but wrote on a December 9, 2013
Activities of Daily Living Form that he “can mow with a
tractor and  help when [he] can around the house with
little tasks.” (Tr. 252).
although the ALJ considered the plaintiff's ability to
drive short distances as support for his conclusion that the
plaintiff can perform a “full range of activities of
daily living” (Tr. 27), the plaintiff repeatedly
reported that he could not sit for long periods and had
increased pain when driving. (Tr. 316, 1224). The plaintiff
testified that sharp and continuous pain in his back and
knees prevent him from sleeping, walking “long
distances without stopping[, ]” and standing or sitting
“for long periods of time[, ]” which he described
as fifteen to twenty minutes. (Tr. 44, 46-47). He spends
“most of [his] time” in a recliner with his feet
up (Tr. 56); he is tired “most of the time”
because of his inability to sleep due to pain. (Tr. 58, 250).
The plaintiff testified that he “probably” has to
lie down for about four hours in an eight-hour period because
he “get[s] uncomfortable and . . . [cannot] find . . .
a position that [he] can get some kind of relief.” (Tr.
Dr. Garden noted that driving and sitting “is not
beneficial to him in his condition.” (Tr. 316, 1224).
Additionally, Dr. Garden stated that, “although [he
felt that the plaintiff] does have the capacity of doing some
. . . very sedentary type of work[, ]” he did not think
that the plaintiff could “compete in a competitive work
environment” that requires him to “come in every
day, sit and do activities.” (Tr. 316, 1224). And
though the plaintiff was the primary daytime caregiver for
his children during the relevant period, Dr. Garden did
“not feel that caring for a young child by
himself” was reasonable for the plaintiff in light of
his “lifting/activity restrictions as well as the need
for pain medication during [his] early postoperative
stage.” (Tr. 373). As discussed at length below, the
plaintiff's need for pain medication did not improve
following that “early postoperative stage[.]”
accurately noted that the plaintiff was engaging in farm
work, and that, in March 2011, he sought care for a
laceration to his knee sustained when he was chopping wood.
(Tr. 23-24; see Tr. 889-90; see also Tr.
310 (Dr. Garden's note: the plaintiff reported that
“with the activities that he has been doing on the
‘farm' has [led] to increased pain.”), Tr.
319 (Dr. Garden's note: “The mother made me aware
that he has been doing activities that were more than what
was told . . . including moving of boulders and other
activities although he was not released to do this.”),
Tr. 523-32, 882 (emergency room record: left knee laceration
from chopping wood with axe)). However, the ...