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Taylor v. Berryhill

United States District Court, D. Connecticut

September 24, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         In this Social Security appeal, Jaquan Taylor moves to reverse the decision by the Social Security Administration (“SSA”) denying his claim for disability insurance benefits. Mot. Rev., Doc. No. 20. The Commissioner of Social Security moves to affirm the decision. Mot. to Affirm, Doc. No. 21. Because the Administrative Law Judge (“ALJ”) used an improper, heightened standard to evaluate the evidence regarding Listing 1.04A of 20 C.F.R. § 404.1520(b) (disorders of the spine) (“Listing 1.04A”), I deny the Commissioner's motion and grant Taylor's.

         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

         Jaquan Taylor filed applications for Social Security benefits and Supplemental Income benefits on December 2, 2013. ALJ Decision, R. at 24. In both applications Taylor alleged a disability onset date of October 5, 2011. However, on the record and through counsel at the ALJ hearing, Taylor amended the alleged disability onset date to March 6, 2012. Id. At the time of the alleged disability onset, Taylor was 29 years old. Taylor identified his disability as lower back pain, two pinched nerves, numbness in hands and feet, spasms, anxiety, and depression. Disability Determination Explanation, R. at 104. The SSA initially denied his claim on March 31, 2014, and again on reconsideration on September 4, 2014, finding that “[Taylor's] condition results in some limitations in [his] ability to perform work-related activities . . . [but his] condition is not severe enough to keep [him] from working.” Disability Determination Explanation, R. at 155. Though there was insufficient vocational information to determine whether Taylor could perform his past relevant work, the SSA noted that “[w]e have determined that [he] can adjust to other work.” Id.

         Taylor requested a hearing before an Administrative Law Judge (“ALJ”) on October 20, 2014, and a hearing was held before ALJ Kim Griswold on February 23, 2016[1]. ALJ Decision, R. at 24. At the hearing, the ALJ questioned Taylor about his conditions, treatment history, and ability to perform daily working and living functions. Tr. of ALJ Hr'g, R. at 59-80.

         Taylor responded that “[it was] easier for [him] to walk with [a] cane . . . [he couldn't] walk for a distance without the cane because there [was] pain in [his] groin.” Id. at 64. Further, he “[laid] down on [his] bed almost all day . . . because of [his] pain, ” id. at 75, which he rated as an eight out of ten on a good day, and a ten out of ten on a bad day. Id. at 77. Taylor testified that he drove, but did not leave the house to shop for clothing or groceries. Tr. of ALJ Hr'g, R. at 77- 78. He did not do any activities around his mother's house. Id. at 75.

         The ALJ then heard testimony from Vocational Expert Erin Bailey, who testified that Taylor's prior work as a job development specialist was considered sedentary but, based on Taylor's testimony, was heavy as performed; his past work as a kitchen assistant was considered exertional level medium; and his past work as both a fast food worker and a cashier was considered exertional level light. Id. at 82.

         The ALJ asked Bailey to consider a hypothetical individual of the same age, education (high school and one year of college, id. at 82), and experience as Taylor, who was limited to performing work with the following limitations: could lift and carry up to 20 pounds occasionally and 10 pounds frequently; could not perform overhead reaching with the bilateral upper extremities or lift from below the waist level with the bilateral upper extremities; could occasionally stoop and climb ramps and stairs, but not ladders, ropes, or scaffolds; could occasionally crouch, crawl, kneel, and balance; could tolerate occasional exposure to extreme cold but no hazards or vibration such as moving machinery and unprotected heights; could understand, remember, and carry out simple, repetitive tasks throughout an ordinary work day and work week with normal breaks on a sustained basis; may use a cane to walk long distances outside the home over 100 feet; and may wear a back brace. Tr. of ALJ Hearing, R. at 82-83.

         The ALJ asked Bailey whether that hypothetical individual could perform any of Taylor's prior jobs, and she testified that cashier was the only prior job that this hypothetical individual could perform. Id. at 83. The ALJ then asked Bailey whether there were other unskilled occupations that such an individual could perform. Bailey testified that the hypothetical individual could work: as a ticket seller, with approximately 40, 000 jobs in the national economy; as a parking lot attendant, with approximately 40, 000 jobs in the national economy; and as a price marker, with approximately 260, 000 jobs in the national economy. Id. The ALJ pointed out that the DOT does not specifically address overhead reaching or reaching below the waist, but Bailey explained that based on her experience, the jobs that she mentioned did not require overhead reaching or lifting below the waist. Id. at 84.

         The ALJ then changed the hypothetical, adding that the hypothetical individual: could lift and carry 10 pounds frequently; could stand and walk for two hours in an eight hour workday total; could sit for eight hours in an eight hour workday; and could not crouch, crawl, kneel, or climb ladders, ropes, and scaffolds with any regularity. Id. With these additional restrictions, Bailey testified that the hypothetical individual could perform work as: an information clerk, with approximately 35, 000 jobs in the national economy; and a surveillance system monitor, with 20, 000 jobs in the national economy. Id. at 84-85. The ALJ asked Bailey whether any employer would allow the hypothetical individual to be absent from work at least twice a month on a regular basis, and whether any ...

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