Shrack v. Berryhill

          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 COMMISSIONER

          Robert M. Spector United States Magistrate Judge.

         This 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 [“DIB”].

         I. ADMINISTRATIVE PROCEEDINGS

         On or 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).^[1] 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. (Tr. 1-5).

         On 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. 36).

         On July 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).^[2] 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).

         For the 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.

         II. STANDARD OF REVIEW

         The 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).

         III. DISCUSSION

         A. THE ALJ'S DECISION

         Following the five step evaluation process, ^[3] 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.).^[4] 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)).

         B. THE PLAINTIFF'S CLAIMS

         The 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).

         Additionally, 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).

         C. ASSESSMENT OF THE PLAINTIFF'S PAIN

         As a 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).

         Once 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)^[5]; 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.

         At this 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.

         1. ACTIVITIES OF DAILY LIVING

         The 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).

         Additionally, 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. 62-63).

         Similarly, 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[.]” (Tr. 373).

         The ALJ 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 ...