United States District Court, D. Connecticut
RULING ON THE PLAINTIFF'S MOTION TO REVERSE AND
THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE
Michael P. Shea, U.S.D.J.
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). 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.
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.
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.)
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.)
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.
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.
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).
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
Step Three Analysis - Medical Listings
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.
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).
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),  11.03 (epilepsy),  12.04 (affective disorders),
12.07 (somatoform disorders).
Listing 1.04 - Degenerative Disc Disease
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.
Listing 11.03 - Seizures
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.)
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.)
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.
Listings 12.04 and 12.07 - Affective and Somatoform
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.)
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.
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.)
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.
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
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