United States District Court, D. Connecticut
RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE
PLEADINGS
STEFAN
R. UNDERHILL UNITED STATES DISTRICT JUDGE
In the
instant Social Security appeal, Sandra Joan
Whitaker[1] (“Whitaker”) moves to reverse
the decision by the Social Security Administration
(“SSA”) denying her disability insurance
benefits. Mot. to Reverse, Doc. No. 20. The Commissioner of
Social Security moves to affirm the decision. Mot. to Affirm,
Doc. No. 21. For the reasons set forth below, Whitaker's
Motion to Reverse the Decision of the Commissioner (Doc. No.
20) is DENIED and the Commissioner's
Motion to Affirm its Decision (Doc. No. 21) 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.
Facts
Whitaker
filed for Social Security benefits on January 11, 2013, and
filed an application for supplemental security income on May
7, 2013. Applications for Benefits, R. at 228, 232. In both
applications, Whitaker alleged a period of disability from
December 11, 2012. Id. Whitaker alleged in her
application that she suffered from “diabetes,
degenerative discs disease, diabetic retinopathy, neuropathy,
depression and anxiety.” Int'l Disability
Determination Explanation, R. at 117. The SSA initially
denied her disability benefits claim on May 2, 2013, finding
that Whitaker's “medical evidence shows no
significant mental problems” and that the SSA did
“not have sufficient vocational information to
determine whether [she could] perform any of [her] past
relevant work.” Id. The SSA considered
Whitaker's “age, education, training, and work
experience” and determined that Whitaker was able to
adjust to other work and that her “condition [was] not
severe enough to keep [her] from working.” Id.
On May 7, 2013, Whitaker sought reconsideration of the
agency's decision. Request for Reconsideration, R. at
121. The SSA again denied her claim on July 23, 2013 for the
same reasons as stated in the initial denial. Notice of
Reconsideration, R. at 124.
On
August 28, 2013, Whitaker requested a hearing before an
Administrative Law Judge (“ALJ”). Hr'g
Request, R. at 138. The hearing was held on February 23, 2015
before ALJ John Benson. Tr. of ALJ Hr'g, R. at 35. At the
hearing, Whitaker testified that her back issues, vision,
diabetes, and neuropathy prevented her from working.
Id. at 44. She testified that her diabetes was
“not in very good control, ” she could not
“lift or pull anything over five to ten pounds, ”
and her neuropathy caused her hands to go numb when using
“a mouse or something” or “just holding
something.” Id. at 44. Whitaker testified that
she previously held a job as a manager at Lowe's, but
that she was unable to drive at night because of her vision
which caused her to get laid off. Id. at 42. She
also testified that she could not do the “lifting and
pulling” tasks that her job entailed, she could not do
the “computer work” because of her vision, and
she could not use the power equipment because she did not
have peripheral vision in her left eye. Id. at 43,
47. With respect to her eyes, Whitaker testified that she
could not “look at [a computer] monitor for more than a
couple minutes” before her eyes would become painful
and dry and that she could not usually see the television so
she “pretty much listen[ed].” Id. She
testified that she could not read the newspaper and could
only read “[l]arge print.” Id. at 44.
Further, Whitaker testified that her diabetes caused her to
miss work one to four times per month. Id. at 46.
After
losing her job at Lowe's, Whitaker went to school to
become a barber and graduated in 2014, and she passed a state
test in November 2014. Tr. of ALJ Hr'g, R. at 44. She
testified that she attended barber school four days per week
from 9:00 to 5:30 for twelve months. Id. at 55. She
testified that in the morning portion of the class consisted
of learning “theory” in the classroom and in the
afternoon, she would be doing “hands-on” work in
the barbershop. Id. at 55. Whitaker testified that
she had not yet tried to find work in that field because she
had surgery in January but that she “would like
to” try to find a job as a barber. Id. at 45.
With
respect to her lifestyle, Whitaker testified that she drove
to stores and doctor appointments about four days per week
and sometimes her friends picked her up to go out to dinner.
Tr. of ALJ Hr'g, R. at 42-44. She testified that she had
to take breaks while doing household chores because it made
her back hurt and her hands go numb. Id. at 48. She
testified that she could not cook because she could not stand
to do so and could not do the repetitive cutting and chopping
motions, and that she could not do her own laundry because
she could not carry it. Id. She testified that she
would get “penetrating pain from [her] left lower back
down [her] leg” if she tried to lift something too
heavy. Id. at 49. She testified that because of
lower back pain and numbness in her feet, she could only walk
for five to ten minutes. Id. at 50. Whitaker
testified further that she had shoulder issues as well due to
“physically demanding jobs” and that when she
does any “repetitive motion” her shoulders get
“stiff [and are] unable to move.” Id. at
51. She testified that she could not “fully extend
[her] arms overhead” but could “extend [her] arm
level with [her] shoulder.” Id. She testified
that her vision issues caused headaches three to four times
per week that last for a few hours at a time, caused by
“staring at a monitor too long” or by
“trying to read something or look at something for any
period of time.” Id. at 51-52. Whitaker also
testified that she was undergoing treatment for depression
and attention deficit hyperactivity disorder. Id. at
53.
The ALJ
then heard testimony from the Vocational Expert, James Parker
(“Parker”), who testified that Whitaker's
former job as Lowe's manager was a medium exertion,
skilled job. Tr. of ALJ Hr'g, R. at 58. The ALJ asked
Parker to assume a person of Whitaker's age, education,
and work experience who could perform work at the light
exertion level with the following limitations: could only
walk or stand for four hours in an eight-hour work day;
required an option to alternate between sitting and standing
at 60-minute intervals; could never climb ladders, ropes, or
scaffolding; could occasionally climb ramps or stairs; could
occasionally balance, stoop, crouch, kneel, and crawl; must
avoid concentrated exposure to extreme cold and excessive
vibration, i.e. power tools; must avoid all exposure to
unprotected heights or “dangerous moving
machinery;” could not work with computer screens more
than five minutes at a time and for a total of one hour per
workday; could not drive at night; could only read large
print; and could not do any work requiring peripheral vision
in the left eye. Id. at 58-59. Parker testified that
with those limitations, Whitaker's “past work could
not be performed” because the exertion level was
medium, rather than light. Id. at 59. Parker opined
that there were three jobs, however, that someone with those
limitations could do: (1) a recreation attendant, which
requires “checking people into and out of facilities
like health clubs, and scan[ning] their barcodes, ”
with 300 regional jobs and 30, 000 national jobs; (2) sorting
and folding laundry, with 400 regional jobs and 90, 000
national jobs; and (3) a flower care worker, with 175
regional jobs and 40, 000 national jobs. Id. at
59-60. Parker testified that those three jobs could also be
performed with the additional limitation of frequent
handling[2] and frequent fine manipulation.
Id. at 66. With an additional limitation of
frequently lifting ten pounds, Parker testified that the
recreation attendant and flower care worker could still be
performed, but not the laundry sorter. Id. With
handling and fingering changed to “occasional, ”
Parker testified that only the recreational attendant
position would be available from the first list, but also a
sales attendant which is “essentially a greeter,
” with 300 regional jobs and 60, 000 national jobs.
Id. at 67-68.
The ALJ
then asked Parker to assume all of the limitations from the
original hypothetical with the following additional
limitations: could frequently lift or carry up to 10 pounds;
could only occasionally reach overhead; and could only
occasionally read large print. Tr. of ALJ Hr'g, R. at 60.
Parker testified that with those additional limitations, the
work would be “sedentary” which would require
fine motor skills and with the peripheral vision limitation
in the left eye, the following jobs would be available: (1)
preparer polisher which entails “preparing gold, silver
jewelry for display purposes, ” with 250 regional jobs
and 33, 000 national jobs; (2) inspection tablework which
consists of “inspecting … tiles for
defects” at a retail or distribution facility, with 280
regional jobs and 29, 000 national jobs; and (3) information
clerk, a semi-skilled position, with 350 regional jobs and
100, 000 national jobs. Id. at 60-62. Parker also
testified that missing more than one day per month “on
a sustained basis” would lead to termination.
Id. at 69.
On
April 30, 2015, the ALJ issued an opinion in which he found
that Whitaker was “not under a disability within the
meaning of the Social Security Act from December 11, 2012,
through the date of th[e] decision.” ALJ Decision, R.
at 19. At the first step, the ALJ found that Whitaker
“ha[d] not engaged in substantial gainful activity
since December 11, 2012, the alleged onset date.”
Id. at 20. At the second step, the ALJ determined
that Whitaker's impairments of “degenerative disc
disease and diabetes mellitus with diabetic
retinopathy” were “severe impairments” that
“cause[d] more than a minimal limitation in
[Whitaker's] ability to perform basic physical and mental
work activities.” Id. at 21. The ALJ found
that Whitaker's claimed depression was a
“non-severe impairment, as it would no more than
minimally limit[ Whitaker's] ability to engage in regular
work activities.” Id.
At the
third step, the ALJ determined that Whitaker “d[id] not
have an impairment or combination of impairments that me[t]
or medically equal[ed] the severity of one of the listed
impairments[.]” ALJ Decision, R. at 22. Specifically,
the ALJ stated that he considered the criteria for
“disorders of the endocrine system” in relation
to Whitaker's diabetes and “disorders of the
spine” in relation to Whitaker's back pain but that
“the medical evidence of record [did] not contain the
objective signs, symptoms, or findings, or the degree of
functional restriction necessary for [Whitaker's]
impairments to meet or equal in severity” the listings.
Id., at 23.
The ALJ
then assessed Whitaker's Residual Functional Capacity
(“RFC”) and found that she could perform light
work with the following limitations: (1) could occasionally
climb ramps and stairs; (2) could only stand or walk for four
hours during an 8-hour workday; (3) could occasionally
balance, stoop, kneel, crouch, and crawl; (4) must avoid
concentrated exposure to extreme cold and all exposure to
vibration, dangerous moving machinery and unprotected
heights; (5) could not perform jobs involving night driving;
(6) could only use a computer screen for 5 minutes at a time
for a total of one hour per eight hour a day; (7) could only
read large print; and (8) could not perform work requiring
peripheral vision in the left eye. ALJ Decision, R. at 23.
The ALJ stated that he “considered all symptoms and the
extent to which th[ose] symptoms [could] reasonably be
accepted as consistent with the objective medical evidence
and other evidence” as well as “opinion
evidence” in making his determination. Id. The
ALJ concluded that Whitaker's “medically
determinable impairments could reasonably be expected to
cause the alleged symptoms, ” back pain and symptoms
“associated with diabetic retinopathy and neuropathy,
” but went on to conclude, however, that Whitaker's
“statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely
credible[.]” Id. at 25. The ALJ discredited
Whitaker's testimony regarding the severity of her
limitations because “[t]he documentary medical evidence
of record does not support the level of limitation alleged
by” Whitaker. Id. With respect to
Whitaker's back impairment, the ALJ opined that
“the treatment records do not document the type of
treatment one would expect given the allegations of total
disability.” Id. Further, the ALJ noted that
“treatment records contain[ed] little reference to
treatment related to complaints of back pain” even
though Whitaker had been complaining of back pain since
“at least 2011” and that “the treatment
records document[ed] only modest findings and clinical
observations.” Id. (referencing Ex. 1F, 6F,
13F, 15F) The ALJ opined that, overall, Whitaker's
“sporadic treatment accompanied by mild findings [did]
not support the level of limitation opined.”
Id.
With
respect to Whitaker's diabetes symptoms, the ALJ opined
that “the treatment records related to [Whitaker's]
diabetic condition [did] not show the type of treatment or
findings one would expect given the reports of disabling
symptoms.” ALJ Decision, R. at 25. The ALJ noted that
“the treatment records generally indicate that
[Whitaker's diabetic] condition require[d] no more than
monitoring.” Id. The ALJ discredited
Whitaker's testimony regarding her claimed neuropathy
because “treatment records document very few reports of
hand symptoms” and “recent treatment records show
that [Whitaker was] able to make a complete fist with both
hands and [was] further able to demonstrate full grip
strength bilaterally.” Id. (referencing Ex.
13F). The ALJ opined that his determination about
Whitaker's limitations resulting from her retinopathy and
neuropathy was consistent with the clinical findings in the
record. Id. Further, the ALJ discredited
Whitaker's testimony because “the evidence of
record shows that [Whitaker] ha[d] a history of poor
compliance with treatment recommendations” including
failing to check her blood sugar as often as recommended,
“if at all, ” and failing to follow a diabetic
diet. Id. (referencing Ex. 4F, 6F, and 10F). The ALJ
highlighted that the record reflected that Whitaker admitted
“she could put more effort into controlling her
condition” and that when she was compliant with
treatment, “her symptoms have improved.”
Id. (referencing Ex. 10F).
The ALJ
also discredited Whitaker's testimony because her
“demonstrated abilities [were] … highly
inconsistent with her allegations” and highlighted as
support Whitaker's completion of barber school, which was
“wholly inconsistent with her allegations of
significant difficulties standing, using her hands, and
paying attention.” ALJ Decision, R. at 26. The ALJ
further opined that her successful completion of barber
school suggests that Whitaker “is capable of standing
the time required to cut and/or style someone's hair,
exhibiting the type of manual dexterity that is inherent in
[that] work and maintaining the type of focus and attention
required to perform the required tasks at an acceptable
level” and that the work required “significant
visual acuity.” Id.
Further,
the ALJ “relied upon the information provided within
the treatment records including the clinical findings,
subjective complaints, and diagnostic testing” in
determining Whitaker's ability to perform work activity
because “[n]o treating source provided an
assessment” as such. ALJ Decision, R. at 26. The ALJ
also considered the narrative statement from Whitaker's
primary care physician, Dr. Pang Wang, and gave “great
weight” to the portion referencing Whitaker's
inability to drive at night, but gave “little
weight” to the remainder of the statement because it
was “vague and conclusory.” Id.
(referencing Ex 8F). The ALJ also gave “great
weight” to the opinions of the state agency consulting
physicians' opinions because they “reflect adequate
consideration of the evidence of record as a whole, and are
well supported by citation to the record … which
support the consultant's conclusions.” Id.
(referencing Ex. 2A, 3A, 4A). The ALJ ...