United States District Court, D. Connecticut
RULING ON CROSS MOTIONS
SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE.
Quetlise Camille (“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 her application for Supplemental Security Income
(“SSI”) for the period of January 1, 2012,
through September 11, 2015. Plaintiff has moved for an order
reversing that portion of the Commissioner's decision
denying her benefits, or in the alternative to remand for a
rehearing. [Doc. #22]. Defendant has filed a cross-motion
seeking an order affirming the decision of the Commissioner.
reasons set forth below, plaintiff's Motion for Order
Reversing the Decision of the Commissioner or in the
Alterative Motion for Remand for a Rehearing [Doc.
#22] is DENIED, and defendant's
Motion for an Order Affirming the Decision of the
Commissioner [Doc. #24] is
filed an application for SSI on May 29, 2013, alleging
disability beginning January 1, 2012. See Certified
Transcript of the Administrative Record, Doc. #18, compiled
on September 22, 2017, (hereinafter “Tr.”) at
533-41. Plaintiff's application was denied initially on
November 20, 2013, see Tr. 476-79, and upon reconsideration
on June 2, 2014. See Tr. 481-83.
November 4, 2015, plaintiff, represented by Attorney Olia
Yelner, appeared and testified at a hearing before
Administrative Law Judge (“ALJ”) Robert A.
DiBiccaro. See Tr. 41-84. Vocational Expert
(“VE”) Jack Bock testified at the administrative
hearing by telephone. See Tr. 69-81; see also Tr. 599-603. On
January 28, 2016, the ALJ issued a partially favorable
decision, finding that plaintiff became disabled within the
meaning of the law as of September 12, 2015. See Tr. 19-40.
On May 31, 2017, the Appeals Council denied plaintiff's
request for review, thereby making the ALJ's January 28,
2016, decision the final decision of the Commissioner. See
Tr. 1-6. The case is now ripe for review under 42 U.S.C.
timely filed this action for review and now moves to reverse
the Commissioner's decision, or alternatively, to remand
for a rehearing. [Doc. #22]. On appeal, plaintiff argues:
1. The ALJ erred at step three of the sequential evaluation;
2. The ALJ failed to properly weigh the medical opinion
3. The ALJ's Residual Functional Capacity
(“RFC”) determination fails to include all of
plaintiff's impairments; and
4. The ALJ's step five determination is not supported by
See generally Doc. #22-1 at 20-37. For the reasons
stated below, the Court finds that ALJ DiBiccaro did not err
as contended and his decision is supported by substantial
STANDARD OF REVIEW
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) (citation omitted).
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).
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)).
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
SSA LEGAL STANDARD
the Social Security Act, every individual who is under a
disability is entitled to disability insurance benefits. 42
considered disabled under the Act and therefore entitled to
benefits, plaintiff must demonstrate that 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.
§416.920(c) (requiring that the impairment
“significantly limit ... physical or mental ability
to do basic work activities” to be considered
“severe” (alterations added)).
is a familiar five-step analysis used to determine if a
person is disabled. See 20 C.F.R. §416.920. 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 fourth and
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's severe
impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to
perform his past work, the Secretary then determines whether
there is other work which the claimant could perform. Under
the cases previously discussed, the claimant bears the burden
of proof as to the first four steps, while the Secretary must
prove the final one.
the fourth step, the claimant carries the burdens of
production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of
proof and the Commissioner is obligated to demonstrate that
jobs exist in the national or local economies that the
claimant can perform given [her] residual functional
capacity.” Gonzalez ex rel. Guzman v. Dep't of
Health and Human Serv., 360 Fed.Appx. 240, 243 (2d Cir.
2010) (alteration added) (citing 68 Fed. Reg. 51155 (Aug. 26,
2003)); Poupore v. Astrue, 566 F.3d 303, 306 (2d
Cir. 2009) (per curiam)). The RFC is what a person is still
capable of doing despite limitations resulting from his
physical and mental impairments. See 20 C.F.R.
assessing disability, factors to be considered are (1) the
objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4)
the claimant's educational background, age, and work
experience.” Bastien v. Califano, 572 F.2d
908, 912 (2d Cir. 1978). “[E]ligibility for benefits is
to be determined in light of the fact that ‘the Social
Security Act is a remedial statute to be broadly construed
and liberally applied.'” Id. (quoting
Haberman v. Finch, 418 F.2d 664, 667 (2d Cir.
THE ALJ'S DECISION
the above-described five-step evaluation process, the ALJ
concluded that plaintiff “was not disabled prior to
September 12, 2015, but became disabled on that date and has
continued to be disabled through the date” of his
decision. Tr. 36. At step one, the ALJ found that plaintiff
had not engaged in substantial gainful activity since the
alleged onset date of January 1, 2012. See Tr. 26. At step
two, the ALJ found: “Since the alleged onset date of
disability, January 1, 2012, the claimant had the following
severe impairments: obesity, degenerative disc disease, L5-S1
radiculopathy and depressive disorder[.]” Id.
The ALJ found plaintiff's anemia, hypertension, fibroid
uterus and hemorrhagic ovarian cyst to be non-severe
impairments. See id.
three, the ALJ found that since January 1, 2012,
plaintiff's impairments, either alone or in combination,
did not meet or medically equal the severity of any of the
listed impairments in 20 C.F.R. § Pt. 404, Subpt. P,
App. 1. See Tr. 26-28. The ALJ specifically considered
Listings 1.04 (disorders of the spine) and 12.04 (affective
disorders) in making that determination. See Id.
Before moving on to step four, the ALJ found that since
January 1, 2012, plaintiff had the RFC
to perform sedentary work as defined in 20 CFR 416.967(a)
except: She is able to perform occasional climbing,
balancing, stooping, crawling, crouching and kneeling with no
pushing or pulling with the right lower extremity. She
requires a hand-held assistive device for ambulation and must
change positions every 30 to 60 minutes. The job should
require less than 30 days to learn, and involve only simple
instructions and routine, repetitive tasks with occasional
interaction with supervisors, coworkers and the public.
Tr. 29. At step four, the ALJ concluded that since January 1,
2012, plaintiff was unable to perform any past relevant work.
See Tr. 34. The ALJ found: “Prior to the established
disability onset date, the claimant was a younger individual
age 45-49. On September 12, 2015, the claimant's age
category changed to an individual closely approaching
advanced age.” Id. At step five, the ALJ found
that prior to September 12, 2015, and after considering
plaintiff's age, education, work experience and RFC, as
well the testimony of the VE, other jobs existed in
significant numbers in the national economy that plaintiff
could perform. See Tr. 34-35. The ALJ then determined:
“Beginning on September 12, 2015, the date the
claimant's age category changed, considering the
claimant's age, education, work experience, and residual
functional capacity, there are no jobs that exist in
significant numbers in the national economy that the claimant
could perform (20 CFR 416.960(c) and 416.966).” Tr. 35.
raises several arguments in support of reversal or remand.
The Court addresses each in turn.
claims the ALJ erred at step three of the sequential
evaluation. See generally Doc. #22-1 at 20-26. Plaintiff
asserts: “The medical records contain descriptions of
all of the clinical signs and symptoms necessary to meet or
to be equivalent to the Listing of Section 1.04(A) and
1.04(C).” Id. at 20 (footnotes
omitted). Over six pages of her brief, plaintiff
lists the evidence of record that allegedly supports that
contention. See Id. at 21-26. Defendant responds
that the ALJ properly concluded that plaintiff's
impairments did not meet or medically equal Listing 1.04. See
generally Doc. #24-1 at 3-5.
Listing 1.04 addresses disorders of the spine:
Disorders of the spine (e.g., herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including
the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of
the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex
loss and, if there is involvement of the ...