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Cote v. Berryhill

United States District Court, D. Connecticut

August 28, 2018




         The plaintiff, Emma Lauren Cote, [1] brings this appeal pursuant to §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 Acting Commissioner of the Social Security Administration (the “Commissioner”) denying her application for Disability Insurance Benefits (“DIB”). Plaintiff has moved for an order reversing the decision of the Commissioner, or in the alternative, for remand. [Doc. #17]. Defendant has filed a motion for an order affirming the decision of the Commissioner. [Doc. #22]. Plaintiff has filed a reply. [Doc. #23]. For the reasons set forth below, defendant's Motion for an Order Affirming the Commissioner's Decision is GRANTED. [Doc. #22]. Plaintiff's Motion for Reversal or Remand of Commissioner's Decision is DENIED. [Doc. #17].


         Plaintiff filed concurrent applications for DIB and SSI, [3]alleging disability beginning on October 30, 2013. See Certified Transcript of the Administrative Record, compiled on December 28, 2017 (hereinafter “Tr.”), 175-186. Plaintiff's date last insured is December 31, 2018. See Tr. 189. Plaintiff's application for DIB was denied initially on August 21, 2014, see Tr. 87-90, and upon reconsideration on October 14, 2014, see Tr. 92-94. Plaintiff was self-represented throughout that process.

         On May 3, 2016, plaintiff, represented by Attorney John Wirzbicki, appeared and testified at a hearing before Administrative Law Judge (“ALJ”) Eskunder Boyd. See Tr. 28-61. A vocational expert, Susan Howard (“VE”), also appeared and testified at the hearing. See Tr. 28-30. On June 1, 2016, the ALJ issued a decision finding that plaintiff “has not been under a disability, as defined in the Social Security Act, from October 30, 2013, through the date of this decision[.]” Tr. 22. Plaintiff filed a Request for Review of Hearing Decision. See Tr. 171. On September 14, 2017, the Appeals Council denied plaintiff's request for review, thereby making the ALJ's June 1, 2016, decision the final decision of the Commissioner. See Tr. 1-5. The case is now ripe for review under 42 U.S.C. §405(g).

         Plaintiff timely filed this action for review and now moves to reverse and/or remand the Commissioner's decision. [Doc. #17]. On appeal, plaintiff asserts that the ALJ made various errors that prevented her from receiving a full and fair hearing. See generally Doc. #17-1.


         The 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. See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). Second, the court must decide whether the determination is supported by substantial evidence. See Id. 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).

         The 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.”). “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 [his] disability determination made according to the correct legal principles.” Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).

         “[T]he 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). 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). It is well established that “an ALJ's credibility determination is generally entitled to deference on appeal.” Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013); see also Kessler v. Colvin, 48 F.Supp.3d 578, 595 (S.D.N.Y. 2014) (“A federal court must afford great deference to the ALJ's credibility finding, since the ALJ had the opportunity to observe the claimant's demeanor while the claimant was testifying.” (citation and internal quotation marks omitted)); Pietrunti v. Dir., Office of Workers' Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997) (“Credibility findings of an ALJ are entitled to great deference and therefore can be reversed only if they are patently unreasonable.” (citation and internal quotation marks omitted)).

         It is 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). “[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).


         Under the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits. 42 U.S.C. §423(a)(1).

         To be 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 [she] is not only unable to do [her] previous work but cannot, considering [her] 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); see also 20 C.F.R. §404.1520(c) (requiring that the impairment “significantly limit[] ... physical or mental ability to do basic work activities[]” to be considered “severe”).[4]

         There is a familiar five-step analysis used to determine if a person is disabled. See 20 C.F.R. §404.1520. 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 [she] is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits [her] 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 [her] 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 fifth steps:

Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, [she] has the residual functional capacity to perform [her] past work. Finally, if the claimant is unable to perform [her] 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.


         “Through 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) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003)); Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)). “Residual functional capacity” (“RFC”) is what a person is still capable of doing despite limitations resulting from her physical and mental impairments. See 20 C.F.R. §404.1545(a) (1) .

         “In 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. (citation and internal quotation marks omitted).


         Following the above-described five-step evaluation process, ALJ Boyd concluded that plaintiff was not disabled under the Act. See Tr. 23. First, the ALJ determined that plaintiff “meets the insured status requirements of the Social Security Act through December 31, 2018.” Tr. 15. The ALJ then turned to Step One of the evaluation process and found that plaintiff had “not engaged in substantial gainful activity since October 30, 2013, the alleged onset date[.] ” Id.

         At Step Two, the ALJ found that plaintiff had three severe impairments: “generalized anxiety disorder, attention deficit hyperactivity disorder (‘ADHD') and Asperger's Syndrome[.]” Id.

         At Step Three, the ALJ found that plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]” Tr. 15. Specifically, the ALJ found that plaintiff's “mental impairments, considered singly and in combination, do not meet or medically equal the criteria of listings 12.02 and 12.06.” Id.

         Before proceeding to Step Four, the ALJ determined plaintiff had the RFC

to perform a full range of work at all exertional levels but with the following non-exertional limitations: [she] can perform simple, routine, repetitive tasks; can sustain concentration, pace and persistence for two-hour segments; should have brief and superficial interaction with co-workers, but no interaction with the public; no work requiring independent judgment making (i.e., no setting work duties or work schedules for others and no responsibility for the safety of others) and [she] requires an environment with little to no changes in work duties or routines.

Id. With these limitations, the ALJ found at Step Four that plaintiff was “unable to perform any past relevant work[.]” Tr. 21. Proceeding to Step Five, however, the ALJ found that “there are jobs that exist in significant numbers in the national economy that the [plaintiff] can perform[.]” Tr. 22.

         Therefore, the ALJ found that plaintiff was not disabled within the meaning of the Act “from October 30, 2013, through the date of this decision[.]” Id.

         V. DISCUSSION

         On appeal, plaintiff asserts that the ALJ erred in numerous respects. Specifically, plaintiff alleges the following errors:

1. At Step Two, the ALJ erred by finding that plaintiff had no severe physical impairments;
2. At Step Three, the ALJ erred by failing to consider whether plaintiff met or equaled Listings 12.08 and 12.10;
3. At Step Three, the ALJ erred by finding that plaintiff did not meet Listing 12.02 or 12.06;
4. In determining the RFC and at Step Five, the ALJ erred in his assignment of weight to the various medical opinions in the record;
5. The ALJ erred by failing to adequately account for plaintiff's limitations in the RFC, and by discounting plaintiff's credibility; and
6. At Step Five, the ALJ erred by relying on unreliable testimony from the VE.

         The Court will address each of plaintiff's arguments in turn.

         A. Step Two -- Severe Physical Impairments

         Plaintiff asserts the “ALJ erred at Step 2 inasmuch as he failed to find any severe physical medical impairments.” Doc. #17-1 at 7 (sic). Plaintiff argues that she has physical impairments that “more than minimally impact [her] ability to work[, ]” including “mild obstructive sleep apnea ..., a history of carpal tunnel ..., degenerative spurring in the thoracic spine with a history of back pain and knee pain ..., [and] a demyelinating ulnar neuropathy on [her] left arm[.]” Id. at 7-8. Defendant argues that “Plaintiff has failed to carry her burden of showing that she had a severe physical impairment.” Doc. #22-1 at 6.

         At Step Two, the ALJ determines the medical severity of the plaintiff's alleged impairments. See 20 C.F.R. §404.1520(a)(4)(ii); see also Id. at (c). “A claimant seeking social security benefits must bear the burden of showing that [she] has a medically severe impairment or combination of impairments.” Rodriguez v. Berryhill, No. 16CV1494(VLB), 2018 WL 1660552, at *8 (D. Conn. Apr. 5, 2018) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)). An impairment “is considered ‘severe' if it significantly limits an individual's physical or mental abilities to do basic work activities[.]” SSR 96-3p, 1996 WL 374181, at *1 (S.S.A. July 2, 1996). An impairment is “not severe” if it constitutes only a “slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities.” Id. (citation omitted). “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, itself, sufficient to deem a condition severe.” McConnell v. Astrue, No. 6:03CV0521(TJM), 2008 WL 833968, at *2 (N.D.N.Y. Mar. 27, 2008) (quotation marks and citation omitted).

         At Step Two, the ALJ found that plaintiff had three severe impairments: “generalized anxiety disorder, attention deficit hyperactivity disorder (‘ADHD') and Asperger's Syndrome[.]” Tr. 15. The ALJ made no findings regarding plaintiff's alleged physical impairments.

         The ALJ did not err by finding that plaintiff has no severe physical impairments. In her initial application for benefits, plaintiff raised only the following impairments: “Autism Spectrum Disorder/Asperger Syndrome[, ]” “General Anxiety Disorder[, ]” “Attention Deficit Disorder[, ]” “Bone spurs in spine[, ]” and “Insomnia[.]” Tr. 201. Plaintiff did not assert sleep apnea, carpal tunnel, back and knee pain, or “a demyelinating ulnar neuropathy on [her] left arm” until April 28, 2016, in her Pre-Hearing Memorandum. Tr. 266. This failure is meaningful. See Ocasio v. Astrue, 32 F.Supp.3d 289, 296 (N.D.N.Y. 2012) (citing plaintiff's failure to “identify depression as a disabling condition in her original disability report[]” as evidence supporting “ALJ's finding that Plaintiff's depression was a non-severe impairment[]”); Molt v. Comm'r of Soc. Sec, No. 1:05CV0418(NPM)(VEB), 2009 WL 5214920, at *7 (N.D.N.Y. Dec. 28, 2009) (finding ALJ was “correct in noting that Plaintiff failed to allege that any of her physical impairments limited her ability to work” because plaintiff failed to list physical impairments on her disability reports). It is also notable that plaintiff's attorney questioned her about any “problems sleeping[, ]” but did not ask her about any of her other alleged physical impairments at the hearing. Tr. 50; see Battle v. Colvin, No. 13CV547(JTC), 2014 WL 5089502, at *6 (W.D.N.Y. Oct. 9, 2014) (finding the ALJ did not err by failing to consider plaintiff's obesity and noting that “plaintiff was not questioned by her attorney about any specific functional limitations relating to obesity, nor did she allege obesity as a disabling impairment or include obesity as a factor limiting her ability to work in any of the disability reports submitted in association with her claim”).

         Plaintiff has not provided evidence demonstrating that she has any severe physical impairments. In support of her argument that her “mild obstructive sleep apnea” constitutes a severe impairment, plaintiff cites only to Dr. David R. Hatch's October 1, 2007, sleep medicine consultation. See Doc. #17-1 at 7. Dr. Hatch's consultation was conducted over six years before plaintiff's October 30, 2013, alleged onset date. “The regulations require the plaintiff to present evidence of a severe impairment during the time that he or she claims to be disabled.” Mercado v. Astrue, No. 3:09CV1576(CFD)(TPS), 2010 WL 9478984, at *3 (D. Conn. July 26, 2010). Moreover, Dr. Hatch found that plaintiff's obstructive sleep apnea was “mild in severity[]” and not “a likely cause of [her] symptoms.” Tr. 319.

         On November 18, 2015, Julie Martin, APNP (“APNP Martin”) at the Internal Medicine Group noted that plaintiff reported “difficult sleep, some nights good, some bad.” Tr. 579. APNP Martin also noted that plaintiff reported difficulty sleeping on April 7, 2016. See Tr. 590. However, there is no indication that plaintiff's difficulty sleeping was caused by her alleged sleep apnea. In fact, APNP Martin implied that it may have been caused by anxiety, writing: “Insomnia, Therapy with Jonathan Dean, patient will address anxiety/sleep issues with him. Advised on use of bedtime journaling to help fall asleep at night.” Tr. 591. These records do not demonstrate that plaintiff's sleep apnea significantly limited her in any way, much less plaintiff's “abilities to do basic work activities[.]” SSR 96- 3p, 1996 WL 374181, at *1; see Tr. 579-83; 590-91. Additionally, APNP Martin indicated on November 11, 2013, see Tr. 440, April 21, 2015, see Tr. 574, and March 8, 2016, see Tr. 586, that plaintiff had denied having trouble sleeping. Accordingly, plaintiff fails to demonstrate that her sleep apnea is a severe impairment.

         Plaintiff also fails to show that her carpal tunnel is a severe impairment. Plaintiff cites only to Dr. Julius F. Delparine's finding on March 8, 2012, over a year before plaintiff's alleged onset date, that plaintiff had “electrodiagnostic evidence of a mild to moderate left carpal tunnel syndrome.” Tr. 305; see Mercado, 2010 WL 9478984 at *3. Notably, APNP Martin observed on November 17, 2014, that “Tinklpaugh/Kardestuncer ruled out carpel tunnel[.]” Tr. 420 (sic). Plaintiff testified at the hearing that she can do math problems and use the internet, see Tr. 40-41, 46, and APNP Martin stated that plaintiff “is on ‘screens'/tablets the majority of the time[, ]” Tr. 420. These reports suggest an ability to use her hands. Therefore, Dr. Delparine's single test fails to establish that the alleged carpal tunnel significantly limited plaintiff's “abilities to do basic work activities[.]” SSR 96-3p, 1996 WL 374181, at *1.

         Plaintiff further fails to establish that her “degenerative spurring in the thoracic spine with a history of back pain and knee pain” is a severe impairment. Doc. #17-1 at 7-8. Plaintiff cites to three records in support of her argument, two of which date from well before plaintiff's alleged onset date of October 30, 2013. See Mercado, 2010 WL 9478984 at *3. A February 29, 2008, Family Medicine Center record states that plaintiff's “knee exam [was] entirely WNL except some ‘popping' felt ... upon extension[, ]” and recommends that plaintiff “back off on impact & heavy leg weights[.]” Tr. 299. A March 21, 2011, Manchester Memorial Hospital exam found “minimal degenerative spurring in the thoracic spine.” Tr. 309.

         Plaintiff cites to only one record from after her alleged October 30, 2013, onset Dated: APNP Martin's November 17, 2014, treatment note. See Doc. #17-1 at 8. APNP Martin wrote that plaintiff reported “intermittent pain in neck and upper back.” Tr. 420. However, her examination found that plaintiff had “no spinal tenderness[]” and that plaintiff had normal range of motion and no pain in her lower extremities. Tr. 423. Moreover, APNP Martin consistently found that plaintiff had a “normal gait” and was “able to stand without difficulty[.]” Tr. 441, 448, 453, 582, 587, 590. Therefore, plaintiff fails to establish that her alleged back and knee conditions cause any limitation of her ability to do basic work activities.

         In support of her claim that the “demyelinating ulnar neuropathy” in her left arm constitutes a severe impairment, plaintiff relies on Dr. Tinklepaugh's May 22, 2013, treatment record. Doc. #17-1 at 8. Dr. Tinklepaugh found that plaintiff had a “very mild demyelinating ulnar neuropathy of the left upper extremity.” Tr. 443. Dr. Tinklepaugh determined, however, that the “demyelinating ulnar neuropathy” did not show “any focal slowing across the elbow” or “a significant loss of CMAP amplitude.” Id. Dr. Tinklepaugh made no findings that suggest that the ulnar neuropathy would limit plaintiff's work abilities. See Id. On November 18, 2015, APNP Martin noted that plaintiff denied having joint pain, and found that plaintiff's left arm had “no tenderness to palpation[, ]” normal range of motion, and “no joint crepitus present or pain with motion present[.]” Tr. 582. Therefore, plaintiff fails to show the “mild demyelinating ulnar neuropathy on [her] left arm” is a severe impairment. Doc. #17-1 at 8.

         Finally, plaintiff contends that consultative examiner Dr. Reiher's Disability Evaluation established that plaintiff has a severe physical impairment because Dr. Reiher limited plaintiff to light work. See Doc. #17-1 at 8-9. On August 14, 2014, Dr. Reiher conducted a physical examination of plaintiff, which indicated “[n]o spinal tenderness[, ]” normal joints, and normal neurologic functions. Tr. 352. Dr. Reiher determined that plaintiff

could be expected to sit for 8 hours in an 8-hour workday. [She] could be expected to stand for 8 hours in an 8-hour workday. [She] requires no assistive devices for ambulation. [She] could be expected to lift 10 pounds frequently for two-thirds of a workday. [She] has postural limitations of low back pain with repetitive bending and crouching. [She] has no manipulative limitations. [She] has no workplace environmental limitations.

Tr. 353.

         “[T]he opinions of consulting sources, unlike those of treating sources, are entitled to no special deference.” Lamorey v. Barnhart, 158 Fed.Appx. 361, 363 (2d Cir. 2006). “[A]consulting physician's opinions or report should be given limited weight ... because consultative exams are often brief, are generally performed without benefit or review of claimant's medical history and, at best, only give a glimpse of the claimant on a single day.” Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990) (quotation marks and citations omitted).

         The ALJ gave “Dr. Reiher's assessment little weight, as the finding for any physical limitation is without support from other medical records.” Tr. 20. The ALJ further noted that “the records from Internal Medicine Group did not detail any physical limitations[.]” Id.

         Plaintiff contends that the ALJ's assertion that the Internal Medicine Group records did not detail any physical limitations is “only partly true[]” because plaintiff “complained of trouble sleeping[]” in November 2015. Doc. #17-1 at 8. However, as discussed above, there is no indication that plaintiff's sleeping problems were caused by plaintiff's alleged sleep apnea or any other physical limitations. See Tr. 579-83. During the hearing, plaintiff did not mention sleep apnea or any other physical impairment in response to her attorney's question regarding her “problems sleeping[.]” Tr. 50. Instead, plaintiff testified that she feels “a good bit of anxiety when [she is] trying to get to sleep oftentimes.” Tr. 51.

         Moreover, Dr. Reiher's evaluation did not assess plaintiff's alleged sleep problems. See Tr. 351-53. Plaintiff fails to cite to any records supporting the limitations identified by Dr. Reiher. Therefore, the ALJ did not err by finding that Dr. Reiher's findings were inconsistent with the Internal Medicine Group notes.

         Substantial evidence supports both the ALJ's decision to afford Dr. Reiher's opinion little weight and the ALJ's determination that plaintiff did not have severe physical limitations. At the hearing, plaintiff suggested that her physical impairments do not limit her ability to work, testifying that her medical limitations were “not really a question of what I can or can't do.” Tr. 41. Plaintiff also testified that she ...

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