United States District Court, D. Connecticut
DOUGLAS R. BUDNICK
COMMISSIONER OF SOCIAL SECURITY
RULING ON CROSS MOTIONS
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
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.
PROCEDURAL HISTORY 
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.
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.
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.
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) .
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.
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. 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).
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).
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)).
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) .
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 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
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