United States District Court, D. Connecticut
RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE
R. Underhill United States District Judge
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).
Standard of Review
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
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.
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.
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.
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
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.
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.
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.
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.
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.” 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
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 ...