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Woodard v. Berryhill

United States District Court, D. Connecticut

July 23, 2018

GAILA AUGUSTA WOODARD
v.
NANCY A. BERRYHILL,[1] 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 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 Supplemental Security Income benefits [“SSI”].

         I. ADMINISTRATIVE PROCEEDINGS

         On or about March 12, 2014, the plaintiff filed an application for SSI benefits claiming that she has been disabled since November 1, 2011, due to anxiety, depression, agoraphobia, bipolar disorder, type II diabetes, hypertension, high cholesterol, limited kidney function, asthma, gastroesophegeal reflux disease, drug addiction, and sleep apnea. (Certified Transcript of Administrative Proceedings, dated August 18, 2017 [“Tr.”] 222-30, 247).[2] The plaintiff's application was denied initially (Tr. 151-54; see Tr. 155-57) and upon reconsideration. (Tr. 163-66). The plaintiff requested a hearing before an Administrative Law Judge [“ALJ”] (see Tr. 167-72), and on September 29, 2015, a hearing was held before ALJ Judith M. Stolfo, at which the plaintiff, her case manager, Heidi Novajaski, and a vocational expert, Tamara Prairie, testified. (Tr. 59-95; see Tr. 190-211). On November 30, 2015, the ALJ issued an unfavorable decision denying the plaintiff's claim for benefits. (Tr. 8-37). The plaintiff requested review of the hearing decision (Tr. 220), and on May 15, 2017, 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 July 7, 2017, the plaintiff filed her complaint in this pending action (Doc. No. 1), [3] and on September 17, 2017, the case was transferred to Magistrate Judge Joan G. Margolis upon consent of the parties. (Doc. No. 17; see Doc. Nos. 15-16). On September 29, 2017, the defendant filed her answer and administrative transcript, dated August 18, 2017. (Doc. No. 20; see Doc. Nos. 18-19), and on December 20, 2017, the plaintiff filed her Motion to Reverse the Decision of the Commissioner and brief in support (Doc. No. 24), along with the parties' Joint Statement of Material Facts. (Doc. No. 25). On February 6, 2018, the defendant filed her Motion to Affirm and brief in support. (Doc. No. 26). On February 21, 2018, the plaintiff filed her reply brief (Doc. No. 28), and on May 1, 2018, this case was reassigned to this Magistrate Judge. (Doc. No. 29).

         For the reasons stated below, the plaintiff's Motion to Reverse the Decision of the Commissioner (Doc. No. 24) is GRANTED IN PART AND DENIED IN PART such that the case is remanded consistent with this Ruling; defendant's Motion to Affirm (Doc. No. 26) is DENIED IN PART AND GRANTED IN PART.

         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. TESTIMONY AT THE ADMINISTRATIVE HEARING

         At the time of her hearing, on September 29, 2015, the plaintiff was forty-eight years old. (See Tr. 62). She had completed the tenth grade and earned her general equivalency diploma in 2002. (Tr. 62). She lives with her daughter who, at the time of the hearing was seventeen years old. (Tr. 68). Her daughter also has narcolepsy and receives SSI benefits for Type 1 diabetes. (Tr. 78).

         The plaintiff testified that she experiences “[e]xtreme sleepiness throughout the day[, ]” and, when she is “really stressed out, ” she can get “really, really sleepy to the point [that she cannot] function[.]” (Tr. 64). She testified that she used to have hobbies, but she is “so exhausted all the time.” (Tr. 69). Although she takes Adderall, on “bad days, [she] can sleep all day, all night[, ]” even while on Adderall. (Tr. 64-65). The plaintiff's daughter does a lot of the cooking and cleaning because the plaintiff can only “work for about five minutes” before she has to stop to rest. (Tr. 68; see also Tr. 270 (“I'm too sleepy to be able to spend a long time cooking.”); see Tr. 271, 295). Additionally, she has “problems focusing because of the narcolepsy[]”; she cannot stay on task, and she forgets what she is saying in the middle of sentences. (Tr. 68). She naps every day, and when she cannot sleep, she cannot concentrate; she is “just in a haze.” (Tr. 73). According to the plaintiff, when she has a cataplexy[4] attack, which is brought on by stress, it is an “all-day thing[]”; she is “really, really weak[, ]” she cannot focus, and she has “total fogginess, total grogginess.” (Tr. 79; see Tr. 298 (stress causes cataplexy attacks)). The plaintiff testified that she drives but is “very careful about making sure that [she is] well rested.” (Tr. 67). She testified that she “oversleep[s] for appointments[, ]” (Tr. 69), and she gets rides to her appointments or cancels them when she is “too tired.” (Tr. 67; see Tr. 269 (“I could drive whenever I wanted, now I can't.”); see Tr. 271 (“I can only drive when I'm rested. I have to plan naps around all appointments due to narcolepsy sleep episodes.”), Tr. 295). Additionally, when she has a cataplexy attack, she cancels her appointments or misses them because she cannot function. (Tr. 79).

         According to the plaintiff, she has anxiety and depression, for which she has seen a psychiatrist and counselor. (Tr. 67-68). However, according to the plaintiff, because of her “problems . . . with the narcolepsy, ” she cannot get to her therapy appointments. (Tr. 77). She was “falling asleep in there[, ] [and] missing appointments. (Tr. 77). Additionally, the plaintiff testified that she has PTSD, the symptoms of which include “horrible, horrible, horrible nightmares[]” and night terrors “[w]here [she is] screaming out [loud] in [her] sleep[.]” (Tr. 80).

         The plaintiff also testified that she cannot work due to back pain (Tr. 65-66), for which she takes Suboxone as a pain management medication. (Tr. 66).[5] The plaintiff testified that she has had three epidurals, including a diagnostic nerve block. (Tr. 67). She can sit for five to ten minutes without pain; she requested to stand while she was testifying. (Tr. 71). According to the plaintiff, she can stand for five or ten minutes before her back gets “extremely stiff[, ]” and she can walk for five minutes without pain. (Tr. 71). The plaintiff testified that she is a candidate for back surgery but, at the time of the hearing, she wanted to wait until her daughter finished school. (Tr. 72).

         The plaintiff's case manager, Heidi Novajaski, testified that it is “important that the home visits [with the plaintiff are] scheduled either late morning or early afternoon” so that she can get “the most of [the plaintiff] . . . functioning-wise.” (Tr. 84; see Tr. 82-84). The plaintiff has not slept through an appointment with her, but she has cancelled appointments when she did not sleep, or when she needs to sleep. (Tr. 88). The case manager testified that if the plaintiff is under a lot of stress, she will “get really intense and her speech will go rapid” in a “lot of different directions and then she seems to like blank, like go blank, like she's looking right at you, her eyes are big, but she's blank.” (Tr. 84). The case manager will “try[] to reel her back in, bring her back into focus[.]” (Tr. 85). Although she does not doze off while the case manager is talking to her, the plaintiff looks “gone like . . . she's looking right at you, but nothing's happening.” (Tr. 88). At times, the plaintiff has told the case manager that she will go right to bed after their meeting because the meeting itself was “too much.” (Tr. 86).

         B. THE ALJ'S DECISION

         Following the five step evaluation process, [6] the ALJ found that the plaintiff has not engaged in substantial gainful activity since the date of her application. (Tr. 13, citing 20 C.F.R. §416.971 et seq.).[7] The ALJ concluded that the plaintiff has the severe impairments of narcolepsy and cataplexy, degenerative disc disease, asthma, diabetes mellitus, depressive disorder, anxiety disorder, agoraphobia, PTSD, and history of poly-substance abuse (Tr. 13-14, citing 20 C.F.R. § 416.920 (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. 14-15, citing 20 C.F.R. §§ 416.920(d), 416.925, and 416.926). In particular, the ALJ concluded that the plaintiff's degenerative disc disease does not meet Listing 1.04 (Tr. 14), the plaintiff's asthma does not meet Listing 3.03 (id.), and the plaintiff's mental impairments do not meet Listings 12.04, 12.06 and 12.09. (Tr. 14-15). At step four, the ALJ found that the plaintiff has the residual functional capacity [“RFC”] to perform light work as defined in 20 C.F.R. § 416.967(b), except that she is limited to work involving unskilled tasks and “low stress, defined as involving occasional changes in the work setting[]”; she must also “avoid interaction with the public[, ]” and be “limited to work involving no more than occasional interaction with coworkers.” (Tr. 15-16 (footnote omitted); see Tr. 15-36). The ALJ found that the plaintiff was not capable of performing any past relevant work (Tr. 36, citing 20 C.F.R. § 416.965), 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 her date last insured. (Tr. 36-37, citing 20 C.F.R. §§ 416.969 and 416.969(a)). Accordingly, the ALJ concluded that the plaintiff was not under a disability since the date her application was filed. (Tr. 37, citing 20 C.F.R. § 416.920(g)).

         C. THE PLAINTIFF'S CLAIMS ON REVIEW

         The plaintiff makes five arguments. First, she contends that the ALJ “committed clear error by failing to consider evidence in the case record that demonstrated that the plaintiff suffered from peripheral neuropathy.” (Pl.'s Mem. at 2-4). Next, she claims that the ALJ failed to consider the combined impact of all of the plaintiff's impairments, i.e., her lumbar spine, breathing and mental impairments, as well as her peripheral neuropathy. (Pl.'s Mem. at 5-7). As part of this argument, she maintains that the ALJ failed to address whether the plaintiff's narcolepsy and cataplexy are at least as medically severe as Listing 11.03, epilepsy-nonconvulsive epilepsy. (Pl.'s Mem. at 8-9). Third, she contends that the ALJ erred in concluding that the plaintiff's lumbar spine impairment does not meet the requirements of Listing 1.04. (Pl.'s Mem. at 10-12). Fourth, she asserts that the ALJ failed to follow the treating physician rule by affording the opinions of Dr. Kenkare and Dr. Nampoothiri “little” weight instead of controlling weight. (Pl.'s Mem. at 13-27). Finally, the plaintiff insists that the ALJ failed to include all of her non-exertional impairments in determining her RFC, including her peripheral neuropathy and Dr. Kenkare's opinion that she would be off task twenty percent of a typical work day and absent about three days each month. (Pl.'s Mem. at 27-28).

         The defendant refutes these claims. First, she argues that, not only did the plaintiff fail to allege disability due to peripheral neuropathy on the initial application, the appeal, or during the hearing before the ALJ, the plaintiff's peripheral neuropathy was a residual condition from her diabetes and lasted only one year. (Def.'s Mem. at 7-8). Second, she states that the fact that the ALJ explicitly stated that she considered all of the plaintiff's impairments is sufficient to cover the peripheral neuropathy even if it was not mentioned specifically. (Def.'s Mem. at 9-10). Third, she maintains that the ALJ properly concluded that the plaintiff's impairments did not reach listing level severity. (Def.'s Mem. at 10-14). Fourth, she contends that the ALJ properly assessed the medical opinion evidence. (Def.'s Mem. at 14-20). Finally, she alleges that substantial evidence supports the ALJ's RFC finding. (Def.'s Mem. at 20).

         D. FAILURE TO CONSIDER PLAINTIFF'S PERIPHERAL NEUROPATHY

         The plaintiff bears the burden of establishing that she has a medically determinable impairment, which “can be shown by medically acceptable clinical and laboratory diagnostic techniques[]” from an “acceptable medical source.” 20 C.F.R. § 416.921. After a medically determinable impairment is established, the Commissioner determines at step two of the sequential analysis whether the impairment is “severe.” Id.; Greek v. Colvin, 802 F.3d 370, 373 n.2 (2d Cir. 2015). In order for an impairment to be “severe[, ]” the impairment must “significantly limit [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 416.922. In other words, the impairment must have “more than a minimal effect on an individual's physical or mental ability(ies) to do basic work activities[.]” Social Security Ruling [“SSR”] 85-28, 1985 WL 56856, at *3 (S.S.A. Jan. 1, 1985). Moreover, the Social Security Regulations include a “duration requirement[]” - an impairment “must have lasted or must be expected to last for a continuous period of at least 12 months.” 20 C.F.R. § 416.909.

         The underlying medical records reveal that the plaintiff experienced peripheral neuropathy for more than twelve months. The plaintiff began complaining of “extreme burning in [her] toes” when she was seen at the Community Health & Wellness Center on February 14, 2012. (Tr. 464). Her provider noted that the plaintiff's “[p]eripheral neuropathy [was] acting up[, ]” her “[s]tation and [g]ait [were] essentially within normal limits[, ]”and a prescription of 300 milligrams of Neurontin was “restart[ed].” (Tr. 466). At a “diabetes follow-up” two months later, the Neurontin dosage was increased to 300 milligrams, three times a day, and her station and gait remained “essentially within normal limits[.]” (Tr. 459, 551).

         On May 18, 2012 and June 5, 2012, the plaintiff was seen for complaints of “increased burning to [her] lower extremities[, ]” and the big toe on her left foot was “hurting more than usual[] with slight bluish discoloration.” (Tr. 453, 456, ...


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