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Budnick v. Commissioner of Social Security

United States District Court, D. Connecticut

September 6, 2018




         The plaintiff, Douglas R. Budnick, 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 Commissioner of the Social Security Administration (the “Commissioner”) denying his 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. #21]. Defendant has filed a motion for an order affirming the decision of the Commissioner. [Doc. #23]. For the reasons set forth below, plaintiff's Motion for Reversal or Remand of Commissioner's Decision is GRANTED, to the extent plaintiff seeks a remand for further administrative proceedings. [Doc. #21]. Defendant's Motion for an Order Affirming the Commissioner's Decision is DENIED. [Doc. #23].


         On August 23, 2011, plaintiff filed an application for DIB, alleging disability beginning on September 11, 2006. See Certified Transcript of the Administrative Record, compiled on October 20, 2017 (hereinafter "Tr.") 291-94. Plaintiff's date last insured was March 31, 2007. See Doc. #19 at 2; Tr. 314. Plaintiff's application for DIB was denied initially on October 6, 2011, see Tr. 160-62, and upon reconsideration on December 6, 2011, see Tr. 167-69. Plaintiff was self-represented throughout that process.

         On January 7, 2013, plaintiff, represented by Attorney John Maxwell, appeared and testified at a hearing before Administrative Law Judge Kimberly L. Schiro ("ALJ Schiro"). See Tr. 75-115. A vocational expert ("VE"), Courtney Olds, also appeared and testified at the hearing. See Tr. 105-12. On February 19, 2013, the ALJ issued a decision ("ALJ Schiro's Decision") finding that plaintiff "was disabled under sections 216(i) and 223(d) of the Social Security Act, from September 11, 2006 through November 19, 2009." Tr. 149. Plaintiff filed a Request for Review of Hearing Decision. See Tr. 217.

         On April 24, 2014, the Appeals Council "vacat[ed] the hearing decision and remand[ed] th[e] case to an Administrative Law Judge[.]" Tr. 156. The Appeals Council determined that the "hearing decision does not contain an adequate evaluation of the opinions of the State Agency medical consultants" and that "further evaluation of the medical evidence of record dated on or before March 31, 2007 is warranted." Tr. 156-57. The Appeals Council further found that the "record is unclear regarding whether or not the claimant is entitled to benefits[, ]" because "the Administrative Law Judge found that the claimant's disability ended in November 2009, several months before the 12-month period of the month claimant applied for benefits." Tr. 157. The Appeals Council directed the Administrative Law Judge, on remand, to: "Obtain evidence from a medical expert to clarify the nature and severity of the claimant's impairment[;]" "Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations[;]" and "Obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base[.]" Tr. 157.

         On December 9, 2014, plaintiff, again represented by Attorney Maxwell, appeared and testified at a hearing before ALJ Ryan A. Alger ("ALJ Alger"). See Tr. 27-74. A VE, Renee Jubrey, and a lay witness, Cheyenne Ramos, also appeared and testified at the hearing. See Tr. 60-73. On February 12, 2015, ALJ Alger issued a decision ("ALJ Alger's Decision") finding that plaintiff "was not disabled under sections 216 (i) and 223(d) of the Social Security Act through March 31, 2007, the last date insured." Tr. 19. Plaintiff filed a Request for Review of Hearing Decision. See Tr. 286-88. On July 19, 2017, the Appeals Council denied plaintiff's request for review, thereby making ALJ Alger's Decision the final decision of the Commissioner. See Tr. 1-7. The case is now ripe for review under 42 U.S.C. §405(g) .

         Plaintiff filed this timely action for review and now moves to reverse and/or remand the Commissioner's decision. [Doc. #21]. On appeal, plaintiff asserts that the ALJ made various errors that prevented him from receiving a full and fair hearing. See generally Id.


         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, 52 3 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 he 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 [her] 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); 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").[2]

         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 he 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 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) (percuriam). If and only if the claimant does not have a listed impairment, the Commissioner engages ...

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