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Weatherby v. Berryhill

United States District Court, D. Connecticut

September 21, 2018

NYRADAWN E. WEATHERBY
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY[1]

          RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER AND ON THE DEFENDANT'S MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

          ROBERT M. SPECTOR UNITED STATES MAGISTRATE JUDGE

         This action, filed under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeks review of a final decision by the Commissioner of Social Security [“SSA”] denying the plaintiff Disability Insurance benefits [“DIB”].

         I. ADMINISTRATIVE PROCEEDINGS

         On or about August 13, 2013, the plaintiff filed an application for DIB claiming she has been disabled since October 25, 2011, due to a history of a traumatic brain injury, migraines, back and neck pain, mental disorders, affective disorder, obesity, asthma, memory loss, learning disorder, and a history of right shoulder surgery. (Certified Transcript of Administrative Proceedings, dated November 3, 2017 [“Tr.”] 152, 374-75).[2] The plaintiff's application was denied initially (Tr. 243-46; see Tr. 151-63) and upon reconsideration. (Tr. 248-50; see Tr. 164-73, 247). On September 25, 2014, the plaintiff requested a hearing before an Administrative Law Judge [“ALJ”] (Tr. 251-53; see Tr. 254-75, 280-305, 309-14), and after the plaintiff requested a continuance to secure counsel (see Tr. 315-22), [3] a hearing was held on January 13, 2016 before ALJ Louis Bonsangue, at which the plaintiff testified, and vocational expert testimony was taken by phone. (Tr. 41-91; see Tr. 323-59). On April 29, 2016, the ALJ issued an unfavorable decision denying the plaintiff's claim for benefits. (Tr. 19-40). On July 26, 2017, the Appeals Council denied the plaintiff's request for review, thereby rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-6).

         On September 8, 2017, the plaintiff filed her complaint in this pending action (Doc. No. 1), and on November 20, 2017, the defendant filed her answer and administrative transcript, dated November 3, 2017. (Doc. No. 13). On February 9, 2018, the parties consented to the jurisdiction of a United States Magistrate Judge; the case was transferred to Magistrate Judge Joan G. Margolis. (Doc. No. 17). On March 15, 2018, the plaintiff filed her Motion to Reverse the Decision of the Commissioner (Doc. No. 21), with Stipulated Facts and a brief in support (Doc. No. 21-1 [“Pl.'s Mem.”]). On May 1, 2018, this case was transferred to this United States Magistrate Judge (Doc. No. 22), and on May 10, 2018, the defendant filed her Motion to Affirm (Doc. No. 23), and brief in support (Doc. No. 23-1 [“Def.'s Mem.”]). On May 23, 2018, the plaintiff filed a reply brief. (Doc. No. 24).

         For the reasons stated below, the plaintiff's Motion to Reverse the Decision of the Commissioner (Doc. No. 21) is granted such that the case is remanded for further proceedings consistent with this Ruling, and the defendant's Motion to Affirm (Doc. No. 23) is denied.

         II. FACTUAL BACKGROUND

         On the date of her hearing, the plaintiff was 40 years old (Tr. 46; see Tr. 92) and living alone in a one-level house with her cat. (Tr. 51-52, 440). She reported that she requires help with all household chores (Tr. 442), and she spends her days watching television or reading. (Tr. 443). She has a high school degree, one year of college, and a cosmetology certificate. (Tr. 52, 429).

         At the hearing, the plaintiff wore dark sunglasses to block the light as she suffers from photosensitivity due to her migraine headaches. (Tr. 50). She drives, but she testified that her migraines limit her driving. (Tr. 52). According to the plaintiff, she has “a constant daily headache that has, in the last four years, continued to get worse[.]” (Tr. 58). The pain “used to be at a two or three[]” on a pain scale to ten and now it is “constant all the time[]” at a “five or six on a-just a regular, daily basis.” (Tr. 58). When a headache “flares up” to a migraine, she takes her medicine and goes to bed in the dark, with heavy black plastic over her bedroom window because she cannot handle any light. (Tr. 59). She experiences nausea, vomiting, dizziness and balance problems. (Tr. 60). The migraines last at least a day, if not two or three, and she gets them four to five days a week. (Tr. 60 (“[I]t's sometimes hard to tell where the migraine-where one migraine started and where the next-where it stopped and the next one began.”)).

         The plaintiff also testified that she has neck pain as a result of a car accident in which she fractured her third vertebrae in her neck; her movement is restricted, and the “neck is part of what causes the migraines.” (Tr. 61). She takes Cloracepital, a muscle relaxant, for her neck. (Tr. 62). She also has low back pain that “shoots pain down both [of her] legs and it makes [her] legs stop working[, ]” sometimes “[causing her to] fall[].” (Tr. 63). She had shoulder surgery and since then her shoulder has been “[m]ostly fine.” (Tr. 63). She does home therapy. (Tr. 64).

         She has depression and anxiety as a result of her migraines; she spends a large portion of time in a dark room, “hurting so bad[.]” (Tr. 64). At the time of the hearing, she weighed over 260 pounds. (Tr. 73-74). She talks to a therapist two to three times a week, which she said helps, and she sees her dad and stepmom and a couple of friends on a sporadic basis. (Tr. 65-66). When she cannot drive, she has appointments with her therapist on Skype. (Tr. 71). She microwaves food, and she usually has help going to the grocery store. (Tr. 67). She does not keep her house clean, and she rarely does laundry. (Tr. 67). She cannot shower every day, and sometimes she cannot lift her leg up over the bathtub due to her back pain. (Tr. 68).

         The plaintiff's depression and anxiety affect her sleep; she takes Ambien which helps her sleep five to seven hours at a time. (Tr. 71-72). Some weeks she does not leave her house, but on a “good week[, ]” she goes out about twice in the week. (Tr. 72). On a relatively good day, she may try to do a chore, she quilts, and she watches television and reads, but has trouble remembering what she read or saw. (Tr. 72-73). She compensates for her memory problems by trying to do the same things all the time, like leaving her keys in a designated spot. (Tr. 73). When she uses the stove, she stands in front of it for the entire time; otherwise, she will forget the stove is on. (Tr. 73).

         She worked as a hairdresser and then for her father as a bookkeeper and office manager, and, near the end of her employment, as a part-time file clerk.[4] (Tr. 54-57, 69, 409, 425, 454-58). She has not worked at all since July 31, 2009 (Tr. 424, see Tr. 380, 383, 385, 389, 402, 406), although she reports that she became unable to work because of her impairments as of June 1, 2008. (Tr. 424). She testified that when she worked for her father's law firm, she paid bills and balanced the checkbook, managed the office, interviewed potential employees, conducted some training, wrote office procedures, and did the bookkeeping. (Tr. 54-55). Accommodations were made for the plaintiff, first in terms of her work schedule and then her responsibilities, as she was moved from her position of office manager to her job as file clerk. (Tr. 47). According to the plaintiff, she “could no longer do [her] job as hired. [She] could not sit, stand or move without pain.” (Tr. 424). Additionally, although she had been the one to write the office procedures for the law office, she could no longer focus long enough to do those tasks. (Tr. 88-89). By the time she left her job at the law firm, the plaintiff could not keep up with the work, could not drive there, and could not function due to her migraine headaches and her back pain. (Tr. 69-70).

         The vocational expert testified that the claimant's past relevant work was as an office manager, bookkeeper, and file clerk. (Tr. 82-83). He testified that, under the ALJ's first hypothetical of an individual limited to light exertional level work, who could only perform simple, routine and repetitive tasks, but not at a production-rate pace, such individual could not perform the plaintiff's past relevant work, but could perform the work of a marker, a photocopying machine operator, and an assembler of plastic hospital products. (Tr. 83-84).

         In the next hypothetical of an individual limited to sedentary work, with a sit/stand option, no climbing of ropes, ladders or scaffolds, limited to simple, routine repetitive tasks, not at a production-rate pace, the vocational expert testified that the plaintiff's past relevant work was not available, but such an individual could perform the work of a call-out operator, document preparer, and surveillance system monitor. (Tr. 84-86).

         In the third hypothetical, the ALJ identified the same limitations as those in the second and added that the individual would have to take several unscheduled breaks during the day, from one half hour to four hours, sometimes even leaving work to go home and rest or go into a dark room. (Tr. 86). The vocational expert testified that, under such a scenario, no jobs were available. (Tr. 86). Additionally, if the individual would be off task 15% or more of the work day, there would be no jobs such an individual could perform, nor would there be jobs for an individual who would miss two or more days of work per month. (Tr. 87-88). Similarly, if an individual had to take a break to lie down during the day, it would not be tolerated if the time exceeded the normal work breaks. (Tr. 88).

         III. STANDARD OF REVIEW

         The scope of 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. Second, the court must decide whether the determination is supported by substantial evidence. See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation omitted). The court may “set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by substantial evidence or if the decision is based on legal error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation marks & citation omitted); see also 42 U.S.C. § 405(g). 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) (citation omitted); see Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) (citation omitted). The substantial evidence rule also applies to inferences and conclusions that are drawn from findings of fact. See Gonzalez v. Apfel, 23 F.Supp.2d 179, 189 (D. Conn. 1998) (citation omitted); Rodriguez v. Califano, 431 F.Supp. 421, 423 (S.D.N.Y. 1977) (citations omitted). However, the court may not decide facts, reweigh evidence, or substitute its judgment for that of the Commissioner. See Dotson v. Shalala, 1 F.3d 571, 577 (7th Cir. 1993) (citation omitted). Instead, the court must scrutinize the entire record to determine the reasonableness of ...


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