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Yulfo-Reyes v. Berryhill

United States District Court, D. Connecticut

November 8, 2018

MAYRA ENID YULFO-REYES
v.
NANCY A. BERRYHILL, Acting COMMISSIONER, Social Security ADMINISTRATION

          RULING ON CROSS MOTIONS

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Mayra Enid Yulfo-Reyes (“plaintiff”), brings this appeal under §205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. §405(g), seeking review of a final decision by the Commissioner of the Social Security Administration (the “Commissioner” or “defendant”) denying her application for Supplemental Security Income (“SSI”) under the Act. Plaintiff has moved for an order reversing the decision of the Commissioner, or in the alternative to remand for further proceedings. [Doc. #32]. Defendant has filed a cross-motion seeking an order affirming the decision of the Commissioner. [Doc. #34].

         For the reasons set forth below, defendant's Motion for an Order Affirming the Decision of the Commissioner [Doc. #34] is DENIED, and plaintiff's Motion for Order of Reversal, or in the Alternative Remand for Further Proceedings [Doc. #32] is GRANTED. The Court REVERSES the decision of the Commissioner and hereby REMANDS this matter for a calculation and award of benefits.

         I. PROCEDURAL HISTORY[1]

         Plaintiff filed concurrent applications for Disability Insurance Benefits (“DIB”) and SSI on December 18, 2009, alleging disability beginning September 18, 2007. See Certified Transcript of the Administrative Record, Doc. #16, compiled on January 11, 2018, (hereinafter “Tr.”) at 203; Tr. 215; Tr. 541-52. Plaintiff's application for DIB was denied on January 16, 2010, because it was determined that plaintiff did “not qualify for disability benefits because [she] had not worked long enough under Social Security.” Tr. 257. Plaintiff did not seek reconsideration of that decision. Plaintiff's application for SSI was denied initially on April 21, 2010, see Tr. 261-64, and upon reconsideration on September 3, 2010, see Tr. 268-70. The only application now under consideration is for SSI.

         Following the denial of plaintiff's SSI application, on November 15, 2011, and May 22, 2012, plaintiff, represented by Attorney Veronica Halpine, appeared and testified at two separate hearings before Administrative Law Judge Bruce H. Zwecker (“ALJ Zwecker”). See Tr. 119-50; Tr. 151-65 (repeated at Tr. 1800-31 and Tr. 1832-46). On June 22, 2012, ALJ Zwecker issued an unfavorable decision. See Tr. 228-51. On July 10, 2012, plaintiff filed a Request for Review of ALJ Zwecker's June 22, 2012, decision. See Tr. 399-401. On June 17, 2013, the Appeals Council ordered remand of plaintiff's case to an ALJ for the resolution of certain outstanding issues. See Tr. 252-56; see also Tr. 402-11.

         Following the Appeals Council's remand, on April 22, 2014, plaintiff, again represented by Attorney Halpine, appeared and testified at a third hearing before ALJ Zwecker. See Tr. 166-202 (repeated at Tr. 1847-83). On October 27, 2014, ALJ Zwecker issued a second unfavorable decision. See Tr. 97-118 (repeated at Tr. 1648-69). Thereafter, plaintiff filed a Request for Review of ALJ Zwecker's October 27, 2014, decision. See Tr. 96 (repeated at Tr. 1696). On June 4, 2015, the Appeals Council denied plaintiff's request for review, thereby making ALJ Zwecker's October 27, 2014, decision the then-final decision of the Commissioner. See Tr. 1-8 (repeated at Tr. 1670-77).

         On June 22, 2015, plaintiff, still represented by Attorney Halpine, filed a complaint in the United States District Court for the District of Connecticut seeking review of ALJ Zwecker's October 27, 2014, decision. See Tr. 1642-47; see also Yulfo v. Colvin, No. 3:15CV952(SALM) (D. Conn. June 22, 2015). On May 18, 2016, defendant filed a Consent Motion to Remand to Agency Under Sentence Four of 42 U.S.C. §405(g). See Yulfo v. Colvin, No. 3:15CV952(SALM), Doc. #28 (D. Conn. May 18, 2016). After the parties consented to the jurisdiction of the undersigned, the Court granted that motion. See Tr. 1678-80; see also Yulfo v. Colvin, No. 3:15CV952(SALM), Docs. #30, #32 (D. Conn. May 20, 2016). Following this Court's remand, on June 8, 2016, the Appeals Council issued a Notice of Order of Appeals Council Remanding Case to Administrative Law Judge. See Tr. 1681-88; Tr. 1712-32.

         Following the Appeals Council's second remand of plaintiff's case, on January 26, 2017, plaintiff, again represented by Attorney Halpine, appeared and testified at a fourth hearing before a different administrative law judge, John Noel (hereinafter the “ALJ” or “ALJ Noel”). See Tr. 1603-41. Vocational Expert (“VE”) Renee Jubry also testified at the hearing by telephone. See Tr. 1633-39; see also Tr. 1897-99. On April 4, 2017, ALJ Noel issued an unfavorable decision. See Tr. 1571-1602. On October 10, 2017, the Appeals Council denied plaintiff's request for review, thereby making ALJ Noel's April 4, 2017, decision the final decision of the Commissioner. See Tr. 1564-70. The case is now ripe for review under 42 U.S.C. §405(g).

         Plaintiff, who initially appeared as a self-represented party, timely filed this action for review. See Doc. #1. Plaintiff, now represented by pro bono counsel, moves to reverse the Commissioner's decision, or in the alternative, to remand for further proceedings. [Doc. #32]. On appeal, plaintiff argues:

1. The ALJ's step two findings are not supported by substantial evidence;
2. The ALJ erred at step three of the sequential evaluation;
3. The ALJ failed to properly weigh the medical opinion evidence;
4. The ALJ's decision is contrary to the law because his findings as to plaintiff's Residual Functional Capacity (“RFC”) are not consistent with the description of light work;
5. The ALJ failed to examine the VE's testimony in compliance with the Appeals Council's June 8, 2016, remand order; and
6. The medical vocational guidelines mandate a finding of disabled based on the RFC determination.

See generally Doc. #32-1.[2] As set forth below, the Court finds that ALJ Noel's decision is not supported by substantial evidence of record.

         II. STANDARD OF REVIEW

         The 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). 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The reviewing court's responsibility is to ensure that a claim has been fairly evaluated by the ALJ. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983) (citation omitted).

         The Court does not reach the second stage of review - evaluating whether substantial evidence supports the ALJ's conclusion - if the Court determines that the ALJ failed to apply the law correctly. See Norman v. Astrue, 912 F.Supp.2d 33, 70 (S.D.N.Y. 2012) (“The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence.” (citing Tejada v. Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999))). “Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.” Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).

         “[T]he crucial factors in any determination must be set forth with sufficient specificity to enable [a reviewing court] to decide whether the determination is supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (alterations added) (citing Treadwell v. Schweiker, 698 F.2d 137, 142 (2d Cir. 1983)). The ALJ is free to accept or reject the testimony of any witness, but a “finding that the witness is not credible must nevertheless be set forth with sufficient specificity to permit intelligible plenary review of the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260- 61 (2d Cir. 1988) (citing Carroll v. Sec. Health and Human Servs., 705 F.2d 638, 643 (2d Cir. 1983)). “Moreover, when a finding is potentially dispositive on the issue of disability, there must be enough discussion to enable a reviewing court to determine whether substantial evidence exists to support that finding.” Johnston v. Colvin, No. 3:13CV00073(JCH), 2014 WL 1304715, at *6 (D. Conn. Mar. 31, 2014) (citing Peoples v. Shalala, No. 92CV4113, 1994 WL 621922, at *4 (N.D.Ill. Nov. 4, 1994)).

         It is important to note that in reviewing the ALJ's decision, this Court's role is not to start from scratch. “In reviewing a final decision of the SSA, this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quoting Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009)).

         Finally, some of the Regulations cited in this decision, particularly those applicable to the review of medical source evidence, were amended effective March 27, 2017. Those “new regulations apply only to claims filed on or after March 27, 2017.” Smith v. Comm'r, 731 Fed.Appx. 28, 30 n.1 (2d Cir. 2018) (summary order). Where a plaintiff's claim for benefits was filed prior to March 27, 2017, “the Court reviews the ALJ's decision under the earlier regulations[.]” Rodriguez v. Colvin, No. 3:15CV1723(DFM), 2018 WL 4204436, at *4 n.6 (D. Conn. Sept. 4, 2018); White v. Comm'r, No. 17CV4524(JS), 2018 WL 4783974, at *4 (E.D.N.Y. Sept. 30, 2018) (“While the Act was amended effective March 27, 2017, the Court reviews the ALJ's decision under the earlier regulations because the Plaintiff's application was filed before the new regulations went into effect.” (citation omitted)).

         III. SSA LEGAL STANDARD

         Under the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits. 42 U.S.C. §423(a)(1).

         To be considered disabled under the Act and therefore entitled to benefits, plaintiff must demonstrate that she is unable to work after a date specified “by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A). Such impairment or impairments must be “of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §423(d)(2)(A); 20 C.F.R. §416.920(c) (requiring that the impairment “significantly limit[] ... physical or mental ability to do basic work activities” to be considered “severe” (alterations added)).

         There is a familiar five-step analysis used to determine if a person is disabled. See 20 C.F.R. §416.920. In the Second Circuit, the test is described as follows:

First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). If and only if the claimant does not have a listed impairment, the Commissioner engages in the fourth and fifth steps:

Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. Under the cases previously discussed, the claimant bears the burden of proof as to the first four steps, while the Secretary must prove the final one.

Id.

         “Through the fourth step, the claimant carries the burdens of production and persuasion, but if the analysis proceeds to the fifth step, there is a limited shift in the burden of proof and the Commissioner is obligated to demonstrate that jobs exist in the national or local economies that the claimant can perform given [her] residual functional capacity.” Gonzalez ex rel. Guzman v. Dep't of Health and Human Serv., 360 Fed.Appx. 240, 243 (2d Cir. 2010) (alteration added) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003)); Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)). The RFC is what a person is still capable of doing despite limitations resulting from her physical and mental impairments. See 20 C.F.R. §416.945(a)(1).

         “In assessing disability, factors to be considered are (1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). “[E]ligibility for benefits is to be determined in light of the fact that ‘the Social Security Act is a remedial statute to be broadly construed and liberally applied.'” Id. (quoting Haberman v. Finch, 418 F.2d 664, 667 (2d Cir. 1969)).

         IV. THE ALJ'S DECISION

         Following the above-described five-step evaluation process, the ALJ concluded that since the application date of December 18, 2009, plaintiff was not disabled under the Act. See Tr. 1592. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the application date of December 18, 2009. See Tr. 1579. At step two, the ALJ found that plaintiff had the severe impairments of: degenerative disc disease; diabetes mellitus; obesity; major depressive disorder; and anxiety. See Id. The ALJ ...


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