Whitaker v. Berryhill

          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 ...