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Ebert v. Berryhill

United States District Court, D. Connecticut

June 19, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This is an administrative appeal following the denial of the plaintiff, Matthew Ebert's, application for Title II disability insurance benefits (“DIB”). It is brought pursuant to 42 U.S.C. § 405(g).[1] Plaintiff now moves for an order reversing the decision of the Commissioner of the Social Security Administration (“the Commissioner”), or in the alternative, an order remanding his case for a rehearing. [Doc. # 16]. The Commissioner, in turn, has moved for an order affirming her decision. [Doc. # 17]. After careful consideration of the arguments raised by the parties, the Court denies Plaintiff's motion and grants the Commissioner's motion.


         “A district court reviewing a final . . . decision [of the Commissioner of Social Security] pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842 (2d Cir. 1981). “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, [are] conclusive . . . .” 42 U.S.C. § 405(g). Accordingly, the district court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. Id.; Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's function is to first ascertain whether the Commissioner applied the correct legal principles in reaching her conclusion, and then whether the decision is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Therefore, absent legal error, a decision of the Commissioner cannot be set aside if it is supported by substantial evidence. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Further, if the Commissioner's decision is supported by substantial evidence, that decision will be sustained, even where there may also be substantial evidence to support the plaintiff's contrary position. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence must be “more than a scintilla or touch of proof here and there in the record.” Williams, 859 F.2d at 258.


         a. Facts

         Plaintiff filed his DIB application on December 4, 2012, alleging his disability began on that date. He last met the insured status requirements of the Social Security Act on September 30, 2014.[2] His claims were denied at both the initial and reconsideration levels. Thereafter, Plaintiff requested a hearing. On January 14, 2015, a hearing was held before administrative law judge John Benson (“the ALJ”). On April 2, 2015, the ALJ issued a decision denying Plaintiff's claims. Plaintiff sought review with the Appeals Council, and also submitted to the Appeals Council additional evidence. The Appeals Council denied review of the ALJ's decision, and found that the additional evidence submitted did not meet the criteria for consideration under the regulations. Therefore, the ALJ's decision became the final decision of the Commissioner. This action followed.

         Plaintiff is a veteran of the Gulf War era, serving in the Army from 1999 to 2004. (R. 8, 132). He completed college with a double major in philosophy and psychology. (R. 82). He last worked, in 2012, at the Department of Veterans Affairs (“VA”) as a patient representative. (R. 84). Plaintiff testified that he resigned from this position because of his physical symptoms. (R. 85-86).

         Plaintiff's complete medical history is set forth in the Joint Statement of Medical Facts filed by the parties. [Doc. # 23]. The Court adopts this statement and incorporates it by reference herein.

         b. The ALJ's Decision

         The Commissioner must follow a sequential evaluation process for assessing disability claims. The five steps of this process are as follows: (1) the Commissioner considers whether the claimant is currently engaged in substantial gainful activity; (2) if not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities; (3) if the claimant has a “severe impairment, ” the Commissioner must ask whether, based solely on the medical evidence, the claimant has an impairment which “meets or equals” an impairment listed in Appendix 1 of the regulations (the Listings). If so, and it meets the durational requirements, the Commissioner will consider him or her disabled, without considering vocational factors such as age, education, and work experience; (4) if not, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has the residual functional capacity to perform his or her past work; and (5) if the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work in the national economy which the claimant can perform. 20 C.F.R. § 404.1520 (a)(4)(i)-(v). The claimant bears the burden of proof on the first four steps, while the Commissioner bears the burden of proof on the final step. McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014).

         In this case, at Step One, the ALJ found that Plaintiff had not engaged in substantial gainful activity from the alleged onset date through the date last insured. (R. 47). At Step Two, the ALJ found Plaintiff had the following severe impairments: polyneuropathy; diabetes; intervertebral disc syndrome; tendinosis and bursitis of the left shoulder; obesity; post-traumatic stress disorder (“PTSD”); generalized anxiety disorder; and depression.[3] (R. 47). At Step Three, the ALJ found these impairments did not meet or medically equal the severity of one of the listed impairments. (R. 48-51). Next, the ALJ determined Plaintiff retains the following residual functional capacity[4]:

Plaintiff can perform light work except he cannot climb ladders, ropes, or scaffolds; he can frequently climb ramps and stairs and balance; he can occasionally stoop, crouch, kneel, and crawl; he can frequently reach overhead with the left upper extremity. He can have only occasional exposure to extreme cold and vibration. He can have no contact with the public, and contact with coworkers is limited such that he cannot engage in tandem tasks but can participate in occasional passing of products or material. He is limited to simple, routine, and repetitive tasks in a work environment free of fast-paced production requirements. He can be off task up to, but not exceeding, ten percent of the workday.

(R. 51-61). At Step Four, the ALJ found Plaintiff was unable to perform past work. (R. 61). Finally, at Step Five, the ALJ relied on the testimony of a vocational expert (“VE”) to conclude that there are jobs existing in significant numbers in the national economy Plaintiff can perform. (R. 62). Specifically, the VE testified that Plaintiff could perform the positions of small hospital products assembler, small products assembler I, and small products assembler II. (R. 62). Accordingly, the ALJ found Plaintiff not to be disabled.


         On appeal, Plaintiff advances a number of arguments, which the Court will address in turn.

         1. Evaluation of Plaintiff's Impairments

         Plaintiff first argues that the ALJ erred in not finding that his celiac disease, migraine headaches, and CIDP were severe impairments. The Commissioner responds that these impairments did not result in any functional limitations significant enough to establish severity.

         At Step Two, the ALJ must determine the “severity” of a claimant's impairments. Pursuant to the regulations, a medically determinable impairment, or a combination of impairments, is not severe “if it does not significantly limit [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1522. “A finding of ‘not severe' should be made if the medical evidence establishes only a ‘slight abnormality' which would have ‘no more than a minimal effect on an individual's ability to work.'” Rosario v. Apfel, No. 97-CV-5759, 1999 WL 294727, at *5 (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n. 12 (1987)); see also SSR 85-28; 20 C.F.R. § 404.1520a. “The claimant bears the burden of presenting evidence establishing severity.” Taylor v. Astrue, 32 F.Supp.3d 253, 265 (N.D.N.Y. 2012). While the second step of the evaluation process is limited to screening out de minimis claims, “the mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment is not, by itself, sufficient to render a condition severe.” Id. (internal quotation marks omitted).

         The Court finds that substantial evidence supports the ALJ's Step Two finding. That medical records mention a diagnosis or presence of a particular condition is not commensurate with a finding of severity. See Id. There is no evidence - and Plaintiff points to none in his brief - that establishes that celiac disease or CIDP significantly limited Plaintiff's ability to perform basic work activities. Likewise, there is no compelling evidence to suggest the ALJ erred in finding Plaintiff's migraine headaches were non-severe.[5] Plaintiff reported experiencing them only five times per year, and that they lasted less than one day. (R. 439-42).

         Further, an AJL's finding that an impairment is not severe at Step Two is harmless error when, as here, the ALJ finds other severe impairments and continues with the sequential evaluation. See Jones-Reid v. Astrue, 934 F.Supp.2d 381, 402 (D. Conn. 2012), aff'd, 515 Fed.Appx. 32 (2d Cir. 2013). In such a circumstance, “because the ALJ did find several severe impairments and proceeded in the sequential process, all impairments, whether severe or not, were considered as part of the remaining steps.” Id. In all the ALJ properly discussed all of Plaintiff's impairments - severe or not - in his decision.

         2. ...

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