United States District Court, D. Connecticut
BARBARA D. SMITH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OF DECISION ON THE PLAINTIFF'S MOTION
TO REVERSE, AND THE DEFENDANT'S MOTION TO AFFIRM, THE
COMMISIONER'S DECISION
KARI
A. DOOLEY, UNITED STATES DISTRICT JUDGE.
Preliminary
Statement
Plaintiff
Barbara D. Smith, proceeding pro se, brings this
appeal under Section 205(g) of the Social Security Act
(hereinafter “the Act”), as amended, 42 U.S.C.
§ 405(g). She challenges the denial of her application
for Title II Disability Insurance Benefits under the Act.
Pursuant to the Court's Standing Scheduling Order on
Social Security Appeals, the Plaintiff was ordered to file a
“Motion for Order Reversing the Commissioner's
Decision, or for other relief, and a supporting
memorandum” within 60 days of the filing of the
Commissioner's Answer. The Commissioner filed its Answer
on February 15, 2018. On April 16, 2018, the Plaintiff filed
a document titled “Answer.” The Commissioner
filed its Motion to Affirm on June 14, 2018. On June 29,
2018, the Plaintiff filed a document titled
“Plaintiff's Reply Brief.” Neither of the
Plaintiff's pleadings include legal argument or analysis,
but both set forth the Plaintiff's view as to why the
Commissioner's decision was wrong. The Court therefore
construes these pleadings, in combination, to be
Plaintiff's Motion for Order Reversing the
Commissioner's Decision.[1] The Commissioner seeks to affirm
the findings as being supported by substantial evidence in
the record. For the reasons set forth below, the
plaintiff's motion to reverse the Commissioner's
decision is DENIED. The defendant's motion to affirm the
decision of the Commissioner is GRANTED.
Standard
of Review
The
plaintiff sought a determination that she was disabled as of
February 6, 2008, through March 31, 2009, the date last
insured. A person is “disabled” under the Act if
that person is unable to “engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result
in death of which has lasted or can expected to last for a
continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(a). A physical or mental impairment
is one that “results from anatomical, physiological, or
psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic
techniques. 42 U.S.C. § 423(d)(3). In addition, a
claimant must establish that her “physical or mental
impairments are of such severity that [she] is not only
unable to do [her] previous work but cannot, considering
[her] 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).). The Commissioner has established a five step
sequential analysis to which an ALJ must adhere when
evaluating disability claims. See 20 C.F.R.
404.1520. In brief, the five steps are as follows: (1) the
Commissioner determines whether the claimant is currently
engaged in substantial gainful activity; (2) if not,
[2] the
Commissioner determines whether the claimant has a
“severe impairment” which limits his or her
mental or physical ability to do basic work activities; (3)
if such a “severe impairment” is established, the
Commissioner next determines whether the medical evidence
establishes that the claimant's impairment “meets
or equals” an impairment listed in Appendix 1 of the
regulations; (4) if the claimant does not establish the
“meets or equals” requirement, the Commissioner
must then determine the claimant's residual functional
capacity (hereinafter “RFC”) to perform his or
her past work; (5) if the claimant is unable to perform his
or her past work, the Commissioner must next determine
whether there is other work in the national economy which the
claimant can perform. 20 C.F.R. 404.1520(a)(4)(i)-(v). The
claimant bears the burden of proof with respect to steps one
through four. See Burgess v. Astrue, 537 F.3d 117,
128 (2d Cir. 2008). The Commissioner bears the burden as to
step five, the existence of work in the national economy
which the claimant is capable of performing. McIntyre v
Colvin, 758 F.3d 146, 150 (2d Cir. 2014). If the
Commissioner fails to come forward with sufficient evidence
on this issue, the claimant is entitled to disability
benefits. See Alston v. Sullivan, 904 F.2d 122, 126
(2d Cir. 1990).
It is
well-settled that the district court will reverse an
ALJ's decision only when it is based upon legal error or
when it is not supported by substantial evidence in the
record. See Beauvoir v. Chater, 104 F.3d 1432, 1433
(2d Cir. 1997); see also 42 U.S.C. § 405(g)
(“The findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall
be conclusive …”). “Substantial evidence
is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Talavera v. Astrue, 697
F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).
The Court does not inquire as to whether the record might
also support the plaintiff's claims, but only where there
is substantial evidence to support the Commissioner's
decision. See Bonet ex rel. T.B. v. Colvin, 523
Fed.Appx. 58, 59 (2d Cir. 2013). The potential for drawing
more than one conclusion from the record does not preclude a
finding that the Commissioner's findings are supported by
substantial evidence. See Vance v. Berryhill, 860
F.3d 1114, 1120 (8th Cir. 2017). Once an ALJ finds facts, the
Court can reject those facts “only if a reasonable
factfinder would have to conclude otherwise.”
Brault v. Social Sec. Admin., 683 F.3d 443, 448 (2d
Cir. 2012).
The
ALJ's Decision
At step
one, the ALJ determined that the Plaintiff had not engaged in
substantial gainful activity since the amended claimed onset
date, February 6, 2008, through March 31, 2009, the date last
insured. At step two, the ALJ found that the Plaintiff had
several severe impairments, specifically, diabetes mellitus,
obesity, hypertension, shortness of breath, borderline
cardiomegaly and mild hypertensive heart disease. At step
three, the ALJ found that the Plaintiff did not establish an
impairment or combination of impairments that meets or
medically equals the severity of the listed impairments in
the regulations at 20 C.F.R. Part 404, Subpart 4, Appendix 1.
At step four, the ALJ determined that the Plaintiff had an
RFC to perform a range of light work. The ALJ placed
limitations on this determination, however, finding that the
plaintiff could stand and walk for four hours; must never
climb ladders, ropes or scaffolds, but could occasionally
climb ramps or stairs; and, was limited to occasional
balancing, stooping, kneeling, crouching and crawling. In
light of these findings, the ALJ determined that the
Plaintiff was capable of performing past relevant work as a
child support officer insofar as this job is generally
performed in the national economy at the sedentary level. The
ALJ, relying in part on the testimony of a vocational expert,
found that the Plaintiff's RFC did not preclude
performance of this sedentary level work: “[W]ith the
past relevant work a child support officer, as classified in
the DOT at sedentary, the claimant would have been able to
perform her past work, prior to the date last insured.”
The ALJ therefore concluded that the Plaintiff was not under
a disability during the relevant period, from February 6,
2008, through March 31, 2009, the date last insured.
Discussion
At
issue in this appeal is the Commissioner's determination
at step five of the sequential analysis. The Plaintiff claims
the vocational expert inaccurately assessed the job of
“Child Support Investigator” as sedentary,
asserting that the “expert witness information was all
wrong.” The Court construes this as an assertion that
ALJ's should not have relied upon the expert and/or as an
assertion that the ALJ's determination that the Plaintiff
could perform past relevant work is not supported by
substantial evidence. The Commissioner, in response, avers
that the ALJ's findings are well supported by substantial
evidence and that it was reasonable for the ALJ to credit and
rely upon the vocational expert's testimony.
The
plaintiff, in her “Answer, ” avers that
“Child Support Investigator” is “by no
means a sedentary job.” In support of her contention,
the plaintiff relies upon a description of the “Child
Support Investigator” job as listed on the website
America's Job Exchange. This document was offered by the
plaintiff at the administrative hearing and is part of the
administrative record. As such, it was available to the ALJ
when he issued his decision. In addition, in her
“Reply, ” the Plaintiff argues that, inter
alia, the jobs of “Child Support
Investigator” and “Child Support Officer”
are “quite different.” In furtherance of this
contention, the plaintiff provides a description of
“Child Support Officer, ” as obtained from
Eduers.com, ostensibly describing that job as specifically
performed in Santa Barbara County, California. This exhibit
was not contained in the administrative record.
Generally,
the Court may not consider additional extrinsic evidence
“when reviewing the findings of the
Commissioner.” Brown v. Barnhart, 2003 WL
1888727, at *10 (S.D.N.Y. Apr. 15, 2003) (citations omitted),
aff'd, 85 Fed.Appx. 249 (2d Cir.2004). In Social
Security appeals, the Court must base its review “upon
the pleadings and transcript of the record.” 42 U.S.C.
§ 405(g). The Court “may at any time order
additional evidence to be taken before the Commissioner of
Social Security, but only upon a showing that there is new
evidence which is material and that there is good cause for
the failure to incorporate such evidence into the record in a
prior proceeding.” Id. Thus, remand based on
the need to review new evidence requires “(1) a showing
that there is new and material evidence and (2) good cause
for the failure to incorporate that evidence into the record
in a prior proceeding.” Skrodzki v. Comm'r of
Soc. Sec., No. 11-CV-5173 MKB, 2013 WL 55800, at *4
(E.D.N.Y. Jan. 3, 2013) (internal quotation marks omitted).
New evidence is considered material if “(1) it is
relevant to the claimant's condition during the time
period for which benefits were denied, (2) it is probative,
and (3) there is a reasonable possibility that the new
evidence would have influenced the [Commissioner] to decide
claimant's application differently.” Williams
v. Comm'r of Soc. Sec., 236 Fed.Appx. 641, 644 (2d
Cir. 2007) (internal quotation marks omitted).
Although
“a claimant's pro se status can establish
good cause for purposes of remand, ” Skrodzki,
2013 WL 55800, at *5 (citing Jones v. Sullivan, 949
F.2d 57, 61 (2d Cir. 1991)), the Plaintiff was represented by
counsel throughout the administrative proceedings. Indeed,
her counsel cross-examined Scorzelli and submitted exceptions
to the Appeals Council regarding the reliability of
Scorzelli's testimony as well as Scorzelli's
subsequent answers to interrogatories. Therefore, the Court
finds Plaintiff has not shown good cause for failing to
previously submit this evidence. Further, the Court finds
this document does not constitute “new and material
evidence” as defined above. Accordingly, the Court
shall neither consider the Eduers.com exhibit nor remand the
matter so that the Commissioner can consider the document.
In
addressing the plaintiff's claim on appeal, the question
for this Court is whether the ALJ's determination, that
the plaintiff could do past relevant work as a child support
officer as it generally performed in the national economy at
the sedentary level, is supported by substantial evidence in
the record. For the reasons discussed below, and after a
review of the entire record, ...