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Lovett v. Berryhill

United States District Court, D. Connecticut

September 20, 2018

KEVIN LOVETT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS

          Stefan R. Underhill United States District Judge

         In this Social Security appeal, Kevin Lovett moves to reverse the decision by the Social Security Administration (“SSA”) denying his claim for disability insurance benefits. Mot. J. on Pleadings, Doc. No. 15. The Commissioner of Social Security moves to affirm the decision. Mot. to Affirm, Doc. No. 18. For the reasons set forth below, I DENY Lovett's Motion for Judgment on the Pleadings (Doc. No. 15) and GRANT the Commissioner's Motion to Affirm its Decision (Doc. No. 18).

         I. Standard of Review

         The SSA follows a five-step process to evaluate disability claims. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). First, the Commissioner determines whether the claimant currently engages in “substantial gainful activity.” Greek v. Colvin, 802 F.3d 370, 373 n.2 (2d Cir. 2015) (per curiam) (citing 20 C.F.R. § 404.1520(b)). Second, if the claimant is not working, the Commissioner determines whether the claimant has a “‘severe' impairment, ” i.e., an impairment that limits his or her ability to do work-related activities (physical or mental). Id. (citing 20 C.F.R. §§ 404.1520(c), 404.1521). Third, if the claimant does not have a severe impairment, the Commissioner determines whether the impairment is considered “per se disabling” under SSA regulations. Id. (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). If the impairment is not per se disabling, then, before proceeding to step four, the Commissioner determines the claimant's “residual functional capacity” based on “all the relevant medical and other evidence of record.” Id. (citing 20 C.F.R. §§ 404.1520(a)(4), (e), 404.1545(a)). “Residual functional capacity” is defined as “what the claimant can still do despite the limitations imposed by his [or her] impairment.” Id. Fourth, the Commissioner decides whether the claimant's residual functional capacity allows him or her to return to “past relevant work.” Id. (citing 20 C.F.R. §§ 404.1520(e), (f), 404.1560(b)). Fifth, if the claimant cannot perform past relevant work, the Commissioner determines, “based on the claimant's residual functional capacity, ” whether the claimant can do “other work existing in significant numbers in the national economy.” Id. (citing 20 C.F.R. §§ 404.1520(g), 404.1560(b)). The process is “sequential, ” meaning that a petitioner will be judged disabled only if he or she satisfies all five criteria. See id.

         The claimant bears the ultimate burden to prove that he or she was disabled “throughout the period for which benefits are sought, ” as well as the burden of proof in the first four steps of the inquiry. Id. at 374 (citing 20 C.F.R. § 404.1512(a)); Selian, 708 F.3d at 418. If the claimant passes the first four steps, however, there is a “limited burden shift” to the Commissioner at step five. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). At step five, the Commissioner need only show that “there is work in the national economy that the claimant can do; he [or she] need not provide additional evidence of the claimant's residual functional capacity.” Id.

         In reviewing a decision by the Commissioner, I conduct a “plenary review” of the administrative record but do not decide de novo whether a claimant is disabled. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam); see Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam) (“[T]he reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.”). I may reverse the Commissioner's decision “only if it is based upon legal error or if the factual findings are not supported by substantial evidence in the record as a whole.” Greek, 802 F.3d at 374-75. The “substantial evidence” standard is “very deferential, ” but it requires “more than a mere scintilla.” Brault, 683 F.3d at 447-48. Rather, substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Greek, 802 F.3d at 375. Unless the Commissioner relied on an incorrect interpretation of the law, “[i]f there is substantial evidence to support the determination, it must be upheld.” Selian, 708 F.3d at 417.

         II. Facts

         Kevin Lovett filed applications for Social Security benefits and Supplemental Income benefits on November 14, 2014 and November 17, 2014 respectively, with an alleged onset of disability of July 15, 2011. Joint Stipulation of Facts, Doc. No. 17, at 2. However, previous applications for benefits which resulted in final decisions created an administratively imposed disability onset of October 29, 2013 based on the doctrine of res judicata. Id. at 2 n.3. At the time of the administratively imposed disability onset, Lovett was 51 years old. Id. at 2. Lovett identified his disability as carpal tunnel in both hands, back pain, and shoulder pain. Int'l Disability Determination Decision, R. at 186. The SSA initially denied his claim on December 11, 2014, finding that although “[his] condition result[ed] in some limitations in [his] ability to perform work related activities . . . [the SSA] determined that [his] condition [was] not severe enough to keep Lovett from working.” Id. The SSA went on to note that it “considered the medical and other information and work experience in determining how [his] condition affects [his] ability to work.” Id. Further, the SSA stated that it did not “have sufficient vocational information to determine whether [Lovett could] perform any of [his] past relevant work, ” id., but it determined that Lovett could “adjust to other work.” Id. Lovett was 52 at the time of the agency's denial.

         Lovett sought reconsideration, stating that he disagreed with the SSA determination because he was allegedly disabled for the stated period of time. Request for Reconsideration, R. at 197. The SSA again denied his claim on reconsideration on June 24, 2015 for the same reasons it offered in its initial denial. Id.

         Lovett requested a hearing before an Administrative Law Judge (“ALJ”) on July 13, 2015, and a hearing was held before ALJ John Aletta on October 13, 2016. Tr. of ALJ Hr'g, R. at 63. At the hearing, the ALJ questioned Lovett about his conditions, treatment history, and ability to perform daily working and living functions. Id. at 80-89. Lovett responded that he had pain in his neck, his back, his shoulders, and his right hand that had “been there for quite a while.” Id. at 80-81. When asked about the pain in his right hand, Lovett responded that he “[couldn't] even close it.” Id. at 81. He further testified that he could “only walk maybe two city blocks, ” and he could “lift maybe ten pounds, ” because “[his] back gives out.” Id. at 87. Lovett testified that he could reach overhead with both arms as long as he was not holding anything, but couldn't “put weight on [his] hands and reach above [his] head.” Id. at 88.

         Lovett testified that he tried to help around the house with cleaning and cooking, and that he did his own laundry. Id. at 89. Further, he did “little stuff” in the yard, including cutting the grass with a self-propelled lawn mower, but did not shovel snow in the winter. Id. Lovett testified that he was able to maintain his personal hygiene, stand at the sink and do dishes, and vacuum the house, though it “takes him all day, ” because he takes frequent breaks to rest. Id. at 91-92, 95.

         The ALJ then heard testimony from Vocational Expert Renee Jubrey, who testified that Lovett's prior work as a drywall taper, janitor, and laborer fell into the “medium” exertional level or above. Tr. of ALJ Hr'g, R. at 98-99. The ALJ asked Jubrey to consider a hypothetical individual of the same age, education (high school, id. at 68), and experience as Lovett, who was limited to performing work at the medium exertional level with the following additional limitations: could only occasionally reach overhead with both arms; occasionally handle and finger with their dominant hand; could frequently climb ramps and stairs; could never climb ladders, ropes, or scaffolds; could frequently balance, stoop, kneel, and crouch; could only occasionally crawl; could never be exposed to unprotected heights or moving mechanical parts; and could not be required to twist their head more than 45 degrees to the left. Id. at 100. The ALJ asked Jubrey whether that hypothetical individual could perform any of Lovett's prior jobs, and she testified that they could not, primarily due to the occasional handling and fingering limitation. Id. Further, Jubrey testified that there were no jobs that the hypothetical person could perform in the national economy at a medium exertional level. Id.

         The ALJ then changed the hypothetical from a “medium” to “light” exertional level while retaining the same limitations, and Jubrey testified that with that change, the following jobs were available: school bus monitor, with 20, 000 jobs available in the national economy; counter clerk, with 25, 000 jobs available in the national economy; or usher, with 55, 000 jobs available in the national economy. Id. at 101-02. The ALJ modified the hypothetical again to include a complete restriction on reaching overhead with either arm, and Jubrey testified that the overhead reaching restriction would not prevent the hypothetical individual from performing the aforementioned three jobs. Id. at 103-04. Finally, the ALJ included a sit/stand restriction in the same hypothetical-that is, for every ten minutes sitting, the individual would be permitted to stand for five minutes, and for every ten minutes standing, the individual would be permitted to sit for five minutes. Id. at 105. With that additional restriction, Jubrey testified that there would be no jobs available in the national economy for that hypothetical individual. Id. at 105-06.

         On November 9, 2016, the ALJ issued an opinion in which he found that Lovett was not “under a disability within the meaning of the Social Security Act from July 15, 2011, through the date of this decision.”[1] ALJ Decision, R. at 15. At the first step, the ALJ found that Lovett “ha[d] not engaged in substantial gainful activity since October 29, 2013, the beginning of the relevant period.” Id. at 18. At the second step, the ALJ determined that Lovett's impairments of “bilateral carpel tunnel syndrome, right shoulder osteoarthritis, right shoulder subscapularis tendinosis, dupuytren's contracture of right hand/fourth finger, degenerative changes to left shoulder acromiclavicular joint, tear of supraspinatus of left shoulder, and mild bulging disks of cervical spine” were severe impairments that imposed “more than minimal limitations on the claimant's ability to engage in basic work activities.”[2] Id.

         At the third step, the ALJ determined that Lovett “did not have an impairment or combination of impairments that [met] or medically equal[ed] the severity of one of the listed impairments” because “the evidence [did] not support a finding that the claimant [was] unable to perform fine and gross movements effectively.” ALJ Decision, R. at 20. As support for this, the ALJ stated that Lovett “testified to activities consistent with effective ...


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