United States District Court, D. Connecticut
RULING ON CROSS MOTIONS
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.
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].
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.
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
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.
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).
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.
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).
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
1. The ALJ's step two findings are not supported by
2. The ALJ erred at step three of the sequential evaluation;
3. The ALJ failed to properly weigh the medical opinion
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. As set forth below, the
Court finds that ALJ Noel's decision is not supported by
substantial evidence of record.
STANDARD OF REVIEW
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).
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).
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,
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)).
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.”
SSA LEGAL STANDARD
the Social Security Act, every individual who is under a
disability is entitled to disability insurance benefits. 42
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)).
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
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.
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.
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.
THE ALJ'S DECISION
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 ...