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Stopa v. Berryhill

United States District Court, D. Connecticut

September 21, 2018

LISA ANN STOPA, 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 the instant Social Security appeal, Lisa Ann Stopa (“Stopa”) moves to reverse the decision by the Social Security Administration (SSA) denying her disability insurance benefits. The Commissioner of Social Security moves to affirm the decision. The issues presented are whether: (1) the ALJ's step three analysis was legally inadequate; (2) the ALJ erred in her credibility analysis; and (3) the ALJ failed to evaluate Stopa's anxiety. Mem. Supp. Mot. Reverse, Doc. 21-1, at 1 - 2.

         For the following reasons, Stopa's motion for an order reversing and remanding the ALJ's decision is denied, and the Commissioner's motion for an order affirming that decision is granted.

         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. Background

         Lisa Ann Stopa (“Stopa”) applied for Social Security disability insurance benefits on October 11, 2013, alleging an onset date of October 26, 2012. See ALJ Decision, R. at 27. Stopa identified her disability as being due to the following illnesses and conditions: back injury, annular tear lumbar disc, ruptured discs, degenerative joint disease, sciatica, peripheral neuropathy, disc protrusion, bilateral neuroforaminal stenosis, chronic lumbar radiculopathy, and degenerative spondylosis throughout lumbar spine.[1] See Disability Determination Explanation (Initial), R. at 109.

         The SSA initially denied Stopa's claim on January 3, 2014, finding that although her “condition results in some limitations in [her] ability to perform work-related activities . . . [the] condition is not severe enough to keep [her] from working.” Disability Determination Explanation (Initial), R. at 120. The SSA adhered to its decision upon reconsideration on April 9, 2014. ALJ Decision, R. at 27. In the agency's view, Stopa "is capable of performing light work as defined in 20 CFR 404.1567(b), except she is able to perform occasional balancing, stooping, kneeling, crouching, crawling, and climbing ramps and stairs." Id. at 32.

         Stopa requested a hearing with an ALJ, which was held on January 8, 2016. Gary W. Huebner, Stopa's attorney, questioned Stopa about her back injury. Stopa reported that she feels constant back pain and numbness down to her left foot and ankle. Id. at 65. She also reported that her symptoms are “an everyday, 24-hour a day thing.” Id. She testified that she has undergone “a series of injections, treatment, [and] physical therapy.” Id. at 63. According to Stopa, the injections and the physical therapy resulted in a worsening of her symptoms. Id. at 64. Stopa reported that she requires Lidoderm patches, Valium, ibruprofen, and range of motion exercises to control her pain. Id. at 71-75. Stopa also testified that she experiences migraine headaches about two to three times a month.[2] Id. at 69. According to Stopa, the migraines may last anywhere from a few hours to an entire day. Id. She reported using Advair and Flonase for asthma, which she claims alleviate her asthma symptoms. Id. at 70. She also testified that she “didn't really work much in 2012” because of stress, both at home and at work. Id. at 73. During closing arguments, Stopa's attorney raised the issue of anxiety, for the first time, when he referred to the “limitations imposed by the headaches and the depression and anxiety that she's treating with Dr. Tobin.” Id. at 106. Stopa testified that she suffered from migraines and was prescribed medication for stress, however, she never specifically mentioned either depression or anxiety.

         Administrative Law Judge I. K. Harrington questioned Stopa about the nature of her most recent work activity in the areas of “medical billing, office management, consulting and computer setup.” Id. at 91. Stopa testified that she spent most of her time, “[a]nywhere from six to ten hours a day, ” performing medical billing work. Id. According to Stopa, medical billing occurs mostly from a seated position in front of a computer, occasionally lifting 20 to 25 pounds. Id. at 92. The ALJ asked Stopa about the activities involved with homeschooling her two younger children, particularly asking about the length of a typical school day. Stopa replied that education time starts around 10:00 A.M., and continues until her oldest daughter is home from school. She and the children “play games a lot . . . [she] teach[es] them math and reading and science . . . and occasionally [they] go on a field trip.”[3] Id. at 85.

         The ALJ then heard testimony from John Matzilevich, a vocational expert, who testified that Stopa had been employed as a medical records coder and office manager, which he classified as sedentary work. Id. at 102. Matzilevich then responded to hypotheticals put forth by the ALJ. In the first hypothetical, the ALJ asked Matzilevich to assume “an individual with [Stopa's] age, education and past work experience [who] is capable of the full range of light work with occasional balancing, stooping, kneeling, crouching, crawling; climbing ramps and stairs; never climbing ladders, ropes or scaffolding; avoid[ing] concentrated exposure to hazardous conditions, such as unprotected heights and dangerous moving machinery.” Id. at 99. Matzilevich opined that “[t]he jobs of medical record[s] coder and office manager could be performed [by Stopa] as customarily performed.” Id. Because Stopa self-reported that she occasionally had to lift up to 100 pounds in her previous work, Matzilevich opined that she could not return to her past work as medical records coder or office manager, as actually performed. Id. The ALJ then asked Matzilevich if there were jobs in significant numbers in the national and regional economy that Stopa could perform given the limitations set forth in the hypothetical. Matzilevich testified that Stopa could perform the jobs of marker, sales attendant or photocopying machine operator, which are classified as skill level 2 jobs with light exertional levels. Tr. of ALJ Hr'g, R. at 102 - 03. In the second hypothetical, the ALJ asked Matzilevich to assume the following:

[A]n individual of [Stopa's] age, education and past work experience. Further assume such individual is capable to lift up to ten pounds occasionally [and] lift and carry up to ten pounds occasionally. Such individual can sit, stand and walk ten minutes without interruption . . . and in a total eight-hour workday, can sit up to two hours, stand and walk for one hour. Such individual can frequently reach, handle, finger, feel, push, pull with . . . both upper extremities [and] occasionally operate foot controls. Such individual can occasionally climb ramps and stairs; never climb ladders, ropes or scaffolding; occasionally balance; never stoop, kneel, crouch or crawl; and such individual can never work around unprotect[ed] heights; occasionally around moving mechanical parts or operating a motor vehicle or exposure to humidity and wetness; no exposure to dust, odors, fumes, pulmonary irritants, extreme cold, heat [and] vibrations. . . .”

Tr. of ALJ Hr'g, R. at 103 - 04. In response, Matzilevich opined that, given the limitations of the second hypothetical, “none of [Stopa's] past work could be performed . . . [and] there would be no other work” for her. Id. at 104.

         Stopa's counsel then examined the vocational expert. He asked Mr. Matzilevich how much walking and standing was involved in the three identified occupations. Id. at 105. Matzilevich stated that the occupations would require about six hours of standing and walking. Additionally, the claimant would be expected to sit for approximately two hours. The jobs require occasionally lifting 20 pounds, and frequently lifting ten pounds. Id.

         On July 23, 2015, the ALJ issued an opinion finding that Stopa "has not been under a disability, as defined in the Social Security Act from October 26, 2012, through the date of this decision." ALJ Decision, R. at 39. The ALJ determined that, “based on the testimony of the vocational expert . . . [Stopa's] impairments, although severe, do not restrict her capacity to such a degree that she is precluded from performing her past relevant work as a medical records coder, ” as generally performed. ALJ Decision, R. at 37. “In the alternative, considering [Stopa's] age, education, work experience, and residual functional capacity, there are other jobs that exist in significant numbers in the national economy that [Stopa] can perform (20 CFR 404.1569 and 404.1569(a)).” Id. at 38.

         At the first step, the ALJ found that Stopa "has not engaged in substantial gainful activity since October 26, 2012, the alleged onset date." Id. at 29. At the second step, the ALJ found that Stopa's degenerative disc disease and asthma were "severe impairments" under 20 C.F.R. §§ 404.1520(c).[4] Id. at 30. At the third step, the ALJ determined that Stopa's impairments were not per se disabling because Stopa "d[id] not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments" in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 31.

         The ALJ then assessed Stopa's residual functional capacity, and found that she could "perform light work" with certain limitations. Id. at 32. Those limitations were as follows: (1) Stopa could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs with no ability to climb ladders, ropes and scaffolds; (2) she must avoid concentrated exposure to vibrations, fumes, odors, dust, gases and poor ventilation; and (3) she could not be exposed to hazardous conditions such as unprotected heights and dangerous moving machinery. Id.

         The ALJ concluded that Stopa could perform "past relevant work as a medical records coder as generally performed." ALJ Decision, R. at 37. The ALJ found that "there are other jobs existing in the national economy that she is also able to perform." Id. The ALJ based that decision on Stopa's residual functional capacity in conjunction with the Medical-Vocational Guidelines and determined that a finding of "not disabled [was] therefore appropriate under the framework" of Medical-Vocational Rule 202.21. Id. at 39.

         Stopa requested a review of the ALJ's decision, and the Appeals Council denied that request on April 11, 2017. Court Transcript Index, R. at 1.

         A. Medical Evidence

         1. Back Pain

         The first reference to the injury that resulted in Stopa's back problem is an October 31, 2012, entry by Dr. Steven M. Luster, in which he ordered an MRI for further evaluation. See Exhibit 1F, Dr. Steven M. Luster Transcription, R. at 388. The MRI of the lumbar spine showed a disc bulge at the L4-L5 level with minimal spinal canal stenosis and mild bilateral neural foraminal narrowing, and a small central disc protrusion without significant spinal canal stenosis and mild bilateral neural foraminal narrowing at the L5-S1 level. Id. at 389. The radiologist's impression was “mild degenerative disease at L4-5 and L5-S1 levels.” Id.

         On November 9, 2012, Stopa was seen by Dr. Joseph Sohn, an orthopedic surgeon. Dr. Sohn notes that an x-ray of the lumbar spine showed mild degenerative spondylosis throughout the lumbar spine with overall good alignment. Exhibit 15F, Dr. Joseph M. Sohn, Treatment Note, R. at 785. Dr. Sohn recommended epidural steroid injections to alleviate symptoms. Id. On December 3, 2012, Stopa returned to Dr. Sohn, who ordered a CT myelogram of the lumbar spine for further evaluation, and an electromyogram (“EMG”) study to rule out polyneuropathy. Id. at 786. The myelogram revealed mild, degenerative changes of the lower lumbar spine. Id. at 787. The EMG confirmed chronic lumbar radiculopathy, mild to moderate, with no findings for acute or subacute lumbar radiculopathy. Id. at 788. On December 19, 2012, a CT scan of Stopa's lumbar spine showed mild degenerative changes. Id. at 787.

         On January 7, 2013, Stopa reported low back pain to Dr. Timothy A. Tobin, her primary care physician of approximately nineteen years. Exhibit 7F, Dr. Timothy A. Tobin, Treatment Record, R. at 598. During that visit, Dr. Tobin prescribed medications for asthma, bronchitis, and back pain. On January 28, 2013, Stopa returned to Dr. Tobin for treatment of “worsening . . . asthma . . . cough, congestion and facial pain and swelling.” Id. at 596. There was no mention of back pain during the visit. On February 4, 2013, Stopa returned ...


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