Annunziato v. Berryhill

          ORDER GRANTING MOTION TO REVERSE AND DENYING CROSS-MOTION FOR JUDGMENT ON THE PLEADINGS

          JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE.

         Plaintiff Frank Annunziato, Jr., alleges that he is disabled and cannot work because of depression, liver disease, sleep apnea, type II diabetes, and edema and neuropathy secondary to diabetes. Pursuant to 42 U.S.C. § 405(g), he seeks review of the final decision of defendant Nancy A. Berryhill, Acting Commissioner of Social Security, denying his claim for social security disability insurance benefits. Plaintiff has filed a motion to reverse the decision of the Commissioner, and the Commissioner has filed a motion for judgment on the pleadings. For the reasons explained below, I will grant plaintiff's motion to reverse and deny the Commissioner's motion for judgment on the pleadings.

         Background

         The Court refers to the transcripts provided by the Commissioner. See Doc. #15-1 through Doc. #15-12. Plaintiff filed an application for disability insurance benefits under Title II on August 8, 2014. He alleges a disability onset date of December 10, 2012, and because his earnings record allows for him to remain insured through September 30, 2018, he was required to show that he became disabled on or before that date. Doc. #15-3 at 15. The claim was denied initially on February 17, 2015, and upon reconsideration on May 28, 2015. Plaintiff then timely filed a written demand for an administrative hearing.

         Plaintiff appeared and testified before Administrative Law Judge (“ALJ”) Ronald J. Thomas on July 28, 2016. Vocational expert Robert T. Paterwic testified at the hearing. On October 26, 2016, the ALJ issued a decision concluding that plaintiff was not disabled within the meaning of the Social Security Act. Doc. #15-3 at 14-25. On February 26, 2017, the Appeals Council denied plaintiff's request for review of the ALJ's decision. Id. at 2-5. Plaintiff timely filed this federal action seeking review of the ALJ's decision. See Doc. #1.

         To qualify as disabled, a claimant must show that he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months, ” and “the impairment must be ‘of such severity that [the claimant] 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.'” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015) (quoting 42 U.S.C. §§ 423(d)(1)(A), 423(d)(2)(A)). “[W]ork exists in the national economy when it exists in significant numbers either in the region where [a claimant] live[s] or in several other regions of the country, ” and “when there is a significant number of jobs (in one or more occupations) having requirements which [a claimant] [is] able to meet with [his] physical or mental abilities and vocational qualifications.” 20 C.F.R. § 416.966(a)-(b); see also Kennedy v. Astrue, 343 Fed.Appx. 719, 722 (2d Cir. 2009).

         To evaluate a claimant's disability, and to determine whether he qualifies for benefits, the agency engages in the following five-step process:

First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a “severe impairment” that 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 that is listed [in the so-called “Listings”] ¶ 20 C.F.R. pt. 404, subpt. P, app. 1. If the claimant has a listed impairment, the Commissioner will consider the claimant disabled without considering vocational factors such as age, education, and work experience; the Commissioner presumes that a claimant who is afflicted with a listed impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform [his] past work. Finally, if the claimant is unable to perform [his] past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.

Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122-23 (2d Cir. 2012) (alteration in original) (citation omitted); see also 20 C.F.R. § 416.920(a)(4)(i)-(v). In applying this framework, an ALJ may find a claimant to be disabled or not disabled at a particular step and may make a decision without proceeding to the next step. See 20 C.F.R. § 416.920(a)(4). The claimant bears the burden of proving the case at Steps One through Four; at Step Five, the burden shifts to the Commissioner to demonstrate that there is other work that the claimant can perform. See McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).

         The ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act. At Step One, the ALJ determined that plaintiff had not engaged in substantial gainful employment activity since December 9, 2012, the date of the alleged onset of his disability. Doc. #15-3 at 16.

         At Step Two, the ALJ concluded that plaintiff suffered from the following severe impairments: diabetes mellitus, neuropathy, and depression. Id. at 17. The ALJ further concluded that plaintiff suffered from the following non-severe impairments: obesity, hypertension, liver disease, and sleep apnea. Ibid. At Step Three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Ibid.

         The ALJ next concluded that plaintiff had a residual functional capacity (“RFC”) “to perform light work as defined in 20 CFR § 404.1567(b) except that he can occasionally kneel, bend, balance, squat, crawl, and climb; can never use foot controls with his left foot; and can occasionally interact with co-workers and supervisors.” Id. at 19. In determining plaintiff's RFC, the ALJ considered plaintiff's allegations of the persistence and severity of his symptoms, but found them only partially consistent with the medical evidence of record. The ALJ acknowledged that plaintiff's diabetes was severe, requiring the amputation of two toes in January and May 2016. Id. at 21.

         The ALJ concluded that plaintiff's allegations of functional limitations were undercut by the fact that he attended regular drug therapy appointments at the APT Foundation and reported to a counselor there that he “was engaged in meaningful daily activities including spending time with his children, working, attending outside meetings, and playing in his band at various locations.” Ibid. In determining plaintiff's RFC, the ALJ found these reported activities to be highly probative, noting that “the claimant's admitted activities demonstrate he could perform light work despite his severe left foot impairment.” Ibid.

         At Step Four, the ALJ concluded that plaintiff was unable to perform any past relevant work. Id. at 23-24. At Step Five, the ALJ concluded that there are light work jobs that exist in the national economy that plaintiff can perform including as an assembler, an electronics worker, or a janitor. Id. at 25. In reaching this conclusion, the ALJ relied on the testimony of the Vocational Expert. Ibid. ...