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Sena v. Berryhill

United States District Court, D. Connecticut

August 14, 2018



          Michael P. Shea, U.S.D.J.

         This is an administrative appeal following the denial of plaintiff David J. Sena's application for disability insurance benefits. The appeal is brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).[1] Mr. Sena now moves for an order reversing the decision of the Commissioner of the Social Security Administration ("Commissioner"). In the alternative, Mr. Sena seeks an order remanding his case for a rehearing. The Commissioner, in turn, has moved for an order affirming the decision.

         Mr. Sena argues, among other things, that the Administrative Law Judge ("ALJ") erred in (1) his analysis of the criteria of the relevant medical listings; (2) his determination that Mr. Sena had the residual functional capacity ("RFC") to perform a reduced range of sedentary work; and (3) his determination that Mr. Sena could perform jobs that exist in significant numbers in the national economy. Mr. Sena was injured while serving in the Marine Corps, and the sacrifices he has made for this country are admirable. Nonetheless, my role as a district judge is limited to reviewing the decision of the ALJ to determine whether it was based on the correct legal principles and is supported by substantial evidence. Therefore, because I find no error in the ALJ's decision, I must DENY Mr. Sena's motion to reverse or remand and GRANT the Commissioner's motion to affirm.


         On February 4, 2015, Mr. Sena filed an application for Social Security Disability benefits alleging an onset of disability of December 1, 2011. (Stipulated Statement of Facts, ECF No. 25 ¶ 1.) A disability adjudicator in the Social Security Administration denied his initial request for disability benefits and thereafter denied his request for reconsideration. (Id.) Mr. Sena appeared at a hearing before ALJ Alexander P. Borré on March 17, 2016. (Id. ¶ 2.) Vocational expert (“VE”) Renee Jubrey and Mr. Sena's father also testified at the hearing. (R. 45.) The ALJ issued a decision denying benefits on May 17, 2016. (Id.)

         The ALJ found that while Mr. Sena's degenerative disc disease with left lower extremity radiculopathy, headaches, and affective disorder were severe impairments, Mr. Sena did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 25-26.) The ALJ found that Mr. Sena had the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), except that he could not climb ladders, ropes, or scaffolds; could frequently balance; and could occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl. (R. 29.) The ALJ further found that Mr. Sena was limited to simple and repetitive tasks in an environment with no public contact, and only occasional contact with coworkers and supervisors. (Id.) Based on this RFC and the testimony of a vocational expert, the ALJ concluded that while Mr. Sena was unable to perform any past relevant work, other work existed in significant numbers in the national economy that he could perform. (R. 36.)

         Mr. Sena requested review of the ALJ's decision by the Appeals Council, which denied review on April 5, 2017, making the ALJ's decision the final decision of the Commissioner. (Id.) This appeal followed. Specific facts and portions of the ALJ's decision will be discussed below as necessary.


         The Social Security Act establishes that benefits are payable to individuals who have a disability. 42 U.S.C. § 423(a)(1). “The term ‘disability' means . . . [an] inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . .” 42 U.S.C. § 423(d)(1). To determine whether a claimant is disabled within the meaning of the Social Security Act, the ALJ must follow a five-step evaluation process as promulgated by the Commissioner.

         The five steps 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 listed in Appendix 1 of the regulations. 20 C.F.R. § 416.920(a)(4). If the claimant has one of these enumerated impairments, the Commissioner will automatically consider that claimant disabled, without considering vocational factors such as age, education, and work experience. Id. (4) If the impairment is not “listed” in the regulations, 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 the claimant could perform. Id. To be considered disabled, an individual's impairment must be “of such severity that he is not only unable to do his previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). The Commissioner bears the burden of proof on the fifth step, while the claimant has the burden on the first four steps. 20 C.F.R. § 416.920(a)(4).

         “A district court reviewing a final ... decision pursuant to … 42 U.S.C. § 405(g), is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). Accordingly, a district court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's function is limited to ascertaining whether the correct legal principles were applied in reaching the decision and whether the decision is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). If the Commissioner's decision is supported by substantial evidence, I must sustain it, even where there is also substantial evidence to support the plaintiff's contrary position. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). The Second Circuit has defined substantial evidence as “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) (citation and quotation marks omitted). Substantial evidence must be “more than a mere scintilla or a touch of proof here and there in the record.” Id.


         I. Step Three Analysis - Medical Listings

         Mr. Sena first argues that the ALJ failed to analyze the “fit” between the specific requirements of the relevant medical listings and the evidence of Mr. Sena's conditions at step three of the analysis. Mr. Sena also argues that the ALJ's step three analysis was not supported by substantial evidence because the ALJ made no attempt to ascertain whether Mr. Sena's condition was of equal severity to other listed impairments.

         The claimant bears the burden of establishing that he “meet[s] all of the specified medical criteria” of a medical listing at step three. Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original). See also Otts v. Comm'r of Soc. Sec., 249 Fed.Appx. 887, 888-89 (2d Cir. 2007) (finding that the claimant did not carry her burden to demonstrate that she met all of the definitional criteria of a particular disorder).

         The ALJ considered whether Mr. Sena had an impairment or a combination of impairments that met or medically equaled the severity of the conditions under the musculoskeletal listings, neurological listings, and mental impairment listings, with particular focus on Listings 1.04 (disorders of the spine), [2] 11.03 (epilepsy), [3] 12.04 (affective disorders), [4] and 12.07 (somatoform disorders).[5]

         A. Listing 1.04 - Degenerative Disc Disease

         The ALJ found that Mr. Sena's degenerative disc disease did not meet the criteria of Listing 1.04 because the record did not demonstrate compromise of a nerve root or the spinal cord. Rather, the ALJ found that the record reflected disc bulge with mild to moderate foraminal stenosis, which did not meet the requirements of the listing. (R. 27.) In support of this conclusion, the ALJ cited the results of an MRI of Mr. Sena's lumbar spine conducted on February 6, 2013, which described “mild to moderate left neural foramen narrowing” and “minimal disc bulge” causing “mild narrowing along the right neural foramen.” (R. 367.) The interpreting radiologist summarized his impression of the MRI as “[i]nterval minimal progression of disease process with new degenerative disc disease at ¶ 4-L5 and slight interval progression at ¶ 5-S1 level . . . .” (Id.) The ALJ also cited a September 30, 2014 report describing the results of another MRI of Mr. Sena's lumbar spine. (R. 955.) The report indicated that the MRI showed disc degeneration with disc bulge and mild central and mild to moderate foraminal stenosis. (Id.) These reports support the conclusion of the ALJ, as both reflected mild to moderate impairments only and neither suggested that Mr. Sena met any of the additional criteria of Listing 1.04. Mr. Sena points to no other records that reflect compromise of the nerve root or spinal cord or the additional criteria of the listing. He therefore fails to meet his burden to demonstrate that he meets the criteria of Listing 1.04.

         B. Listing 11.03 - Seizures

         The ALJ also found that the severity of Mr. Sena's headaches did not meet the criteria of Listing 11.03. Specifically, the ALJ found that, despite the fact that Mr. Sena suffered from a seizure in August 2013, he did not demonstrate a “typical seizure pattern, ” as his headaches had improved over time, did not involve any loss of consciousness, lasted approximately five to ten minutes each, and did not significantly interfere with his activities during the day. (R. 27.) The ALJ cited a November 1, 2013 progress note by neurologists Drs. Kristen Rake and Hamada Hamid, which described Mr. Sena's past medical history of a seizure episode in August 2013 and subsequent headaches. (R. 418-20.) The progress note stated that Mr. Sena's experience with a single seizure was “thought to be in the context of Tramadol use” and “illicit drug use, ” but that Mr. Sena had been “seizure[-]free since.” (R. 420.) The note further stated that Mr. Sena had headaches daily, beginning after his seizure and the head trauma he experienced as a result of falling during the seizure, but that he had been “finding good relief with [N]aproxen, ” and that his headaches were “overall getting better.” (R. 418.)

         Notes from treatment providers at the Department of Veterans' Affairs (“VA”) medical clinic, where Mr. Sena received much of his treatment, also summarized Mr. Sena's diagnosis of a seizure disorder, describing the seizure he experienced on August 14, 2013 and his subsequent headaches. (613-19.) The notes were consistent with Dr. Rake's and Dr. Hamid's November 1, 2013 note, in that they suggested that the seizure might have been linked to Mr. Sena's use of Tramadol at the maximum recommended dosage (R. 619), and that Mr. Sena had not had a seizure since that occasion. (R. 616, 619.) The notes also stated that Mr. Sena had two normal head CT scans and a normal electroencephalogram (“EEG”). (R. 619.)

         The ALJ also cited a May 7, 2014 progress note that stated that Mr. Sena reported improvement in his headaches, as his headaches used to occur daily but now were brief, lasting five to ten minutes only, following changes in medication and diet. (R. 635.) The note also stated that Mr. Sena denied having any “generalized seizures or frequent blank stares.” (R. 636.) These records support the ALJ's conclusion that Mr. Sena did not meet the criteria of Listing 11.03, which required, among other criteria, seizures “occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1. § 11.03. Mr. Sena fails to point to any records that support the conclusion that he met that requirement. He therefore fails to meet his burden to establish that he meets Listing 11.03.

         C. Listings 12.04 and 12.07 - Affective and Somatoform Disorders

         The ALJ also found that Mr. Sena did not meet the criteria of the mental impairment listings 12.04 and 12.07, as Mr. Sena exhibited mild restrictions in activities of daily living, moderate difficulties in social functioning and concentration, persistence, or pace, and no episodes of decompensation. (R. 27-28.) Specifically, the ALJ found that Mr. Sena had experienced no episodes of decompensation of extended duration and that, although Mr. Sena was assisted by friends and family, he was “generally able to perform his activities of daily living independently.” (R. 27-28.) The ALJ cited a VA medical note stating that Mr. Sena had mild or moderate functional impairments as a result of his subjective complaints. (R. 613.) The ALJ also cited a VA progress note that stated that on a typical day, Mr. Sena would drop off his four-and-a-half-year-old son at school, bring coffee to his brother, go to his friend's gym to exercise, and complete chores around the house. (R. 820.) The note stated that Mr. Sena still did yard work and exercised despite having pain. (Id.) It also stated that Mr. Sena would go out with his brother less often than he used to due to lack of motivation, pain, and limited finances. (Id.) The ALJ also relied on April 5, 2013 and July 22, 2013 progress notes by clinical psychologist Dr. Kelly Grover, who noted that Mr. Sena found activities he could complete, such as swimming and going to the gym (the latter of which he did three to four times per week); typically played with his son and completed chores during the day, though he might “be in tears if he push[ed] himself” to complete a task, such as shoveling snow for a long period of time; worked on keeping himself busy with “house projects, helping out family with social gatherings with cooking and setting up their patios” to “improve his mood and his chronic pain.” (R. 404, 798.) Other notes also reflected the fact that Mr. Sena swam and exercised despite experiencing pain. (R. 397.)

         These records support the ALJ's conclusion that Mr. Sena's mental impairments created, at most, moderate restrictions on his daily activities. And while Mr. Sena generally argues that his mental impairments were severe, he does not point to any objective evidence demonstrating that he met the specific requirements of either Listing 12.04 or 12.07.

         Notes reflecting that Mr. Sena was working some amount also demonstrate that he did not meet the criteria of Listings 12.04 or 12.07. A January 30, 2013 physical therapy treatment note reflected that Mr. Sena was “working as a mechanic and finding it difficult lately to do his job due to” lower back pain. (R. 410.) A July 2, 2013 behavioral pain progress note stated that he was spending five to six hours, two to three days per week at his former job, “helping to manage customers and solve problems.” (R. 716.)

         The ALJ noted with regard to Mr. Sena's social functioning that Mr. Sena testified that he became frustrated and had a difficult time getting along with others due to his back pain, as well as his mother's statement that Mr. Sena had become “distracted and irritable” due to back pain. (R. 322.) The ALJ also cited progress notes documenting that Mr. Sena had reported to his treatment providers that he experienced poor stress tolerance and that he had difficulty communicating with his wife. (R. 1269, 1274.) The ALJ also cited evidence, however, that Mr. Sena's mental health providers found him to have “good insight into the relationships among stress, depression, sleep, and pain, ” that Mr. Sena was “coping relatively well with his pain, ” was “continuing to remain physically active, ” “ha[d] good social support, ” and was learning pain-management skills from his psychologist. (R. 821.) These records further support the conclusion that the ALJ's findings with regard to Listings 12.04 and 12.07 were supported by substantial evidence, and Mr. Sena points to no evidence that the ALJ overlooked.

         Mr. Sena does not point to any other listed impairment that he claims his condition met or medically equaled. His claim that the ALJ “ma[de] no attempt whatsoever to ascertain whether Mr. Sena's condition is of equal severity to a Listed impairment” therefore fails. Mr. Sena relies primarily on the ruling in Howarth v. Berryhill, in which the district court found that the ALJ “failed to articulate any reasons at all for his finding that paragraph C criteria [of Listing 12.04] had not been satisfied.” No. 16-CV-1844 (JCH), 2017 WL 6527432, at *5 (D. Conn. Dec. 19, 2017). Here, by contrast, the ALJ clearly stated his reasons for finding that Mr. Sena did not meet the criteria of each relevant medical listing. (R. 27-28.) Mr. Sena has not met his burden to demonstrate that the ALJ erred at step three.

         II. RFC Determination

         Mr. Sena also challenges the ALJ's determination that Mr. Sena had the RFC to perform a reduced range of sedentary work. Mr. Sena raises four challenges to the RFC determination: 1) that the ALJ failed to appropriately weigh a determination by the VA that Mr. Sena was disabled; 2) that the ALJ failed to appropriately weigh the treating source opinion of APRN Joanne Gardner; 3) that the ALJ “cherry-picked” the evidence, focusing on evidence unfavorable to Mr. Sena, to the exclusion of favorable ...

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