United States District Court, D. Connecticut
RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE
R. UNDERHILL UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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. See Disability Determination
Explanation (Initial), R. at 109.
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.
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. 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.
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.” Id. at 85.
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
[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.
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.
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.
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). 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.
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.
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.
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.
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.
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.
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 ...