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Lussier v. Berryhill

United States District Court, D. Connecticut

January 11, 2019

DAN WAYNE LUSSIER, JR., Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          RULING AND ORDER

          Donna F. Martinez United States Magistrate Judge.

         The plaintiff, Dan Wayne Lussier, Jr., seeks judicial review pursuant to 42 U.S.C. § 405(g) of a final decision by the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). Pending before the court are the plaintiff's motion to reverse the Commissioner's decision (doc. #22) and the Commissioner's motion to affirm the decision. (Doc. #25.) For the reasons set forth below, the plaintiff's motion is denied and the defendant's motion is granted.

         I. Administrative Proceedings

         On October 25, 2011, the plaintiff applied for DIB and SSI alleging that he was unable to work due to "TBI; back, hip, neck and shoulder pain; personality disorder; major depression; and hypertension." (R. at 590.) The Social Security Administration denied the plaintiff's applications initially and on reconsideration. The plaintiff requested a hearing before an Administrative Law Judge. A hearing was held on August 20, 2013, after which the ALJ issued an unfavorable decision. On May 7, 2015, the Appeals Council remanded for a new hearing to obtain vocational expert testimony. (R. at 36.) A hearing was held on April 3, 2016 at which the plaintiff, represented by counsel, and a vocational expert testified. A supplemental hearing for additional vocational testimony was held on July 26, 2016. (R. at 230-243.) Because he had returned to work, the plaintiff amended his claim to a closed period of benefits for the period of December 31, 2009 (his last date insured) through June 16, 2015. (R. at 232.) On November 16, 2016, the ALJ issued a decision finding that the plaintiff was not disabled under the Social Security Act. On December 3, 2017, the Appeals Council denied the plaintiff's request for review. This action followed.

         II. Facts and Legal Standard

         The court assumes familiarity with the plaintiff's medical history (summarized in a stipulation of facts, doc. #26, that are adopted and incorporated herein by reference), and the five sequential steps used in the analysis of disability claims. The court cites only those portions of the record and the legal standard necessary to explain this ruling.

         III. The ALJ's Decision

         The ALJ first determined that the plaintiff had not engaged in substantial gainful activity from December 31, 2009 through June 16, 2015. (R. at 14.) At step two, the ALJ found that the plaintiff had severe impairments of "acquired traumatic brain injury, depressive disorder, anxiety, status post thoracic spine fracture [and] degenerative disc disease of the lumbar spine." (R. at 15.) At step three, the ALJ found that the plaintiff "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]" (R. at 15.) Specifically, the ALJ found that the plaintiff's impairments, considered singly and in combination, did not meet or medically equal the criteria of Listings 1.04 (disorders of the spine), 12.02 (organic mental disorder), 12.04 (affective disorders), and 12.06 (anxiety disorders). The ALJ next found that the plaintiff had the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that he is limited to "simple, routine, repetitious work tasks that do not require teamwork or working closely with the public; occasional interaction with the public, co-workers, and supervisors. He is further limited to occasional bending, balancing, kneeling, crawling, twisting, squatting, and climbing." (R. at 17.) At step 4, the ALJ found that the plaintiff was unable to perform his past relevant work as an auto body technician. (R. at 21.) At step 5, after considering the plaintiff's age, education, work experience, residual functional capacity, and the testimony of a vocational expert, the ALJ found that there existed jobs in significant numbers in the national economy that the plaintiff could perform. (R. at 22.) Accordingly, the ALJ determined that the plaintiff was not disabled within the meaning of the Act from December 31, 2009 through June 16, 2015. (R. at 22.) This action followed.

         IV. Standard of Review

         "This court's review of the ALJ's decision is limited." Black v. Colvin, No. 3:16CV1727(MPS), 2017 WL 6485687, at *3 (D. Conn. Dec. 19, 2017). "The decision 'may be set aside only due to legal error or if it is not supported by substantial evidence.'" Id. (citation omitted). In determining whether the ALJ's findings are supported by substantial evidence, "'the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.'" Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)). "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." Brault v. Soc. Sec. Admin., Com'r, 683 F.3d 443, 447 (2d Cir. 2012)(quotation marks and citations omitted). It is "a very deferential standard of review-even more so than the clearly erroneous standard. . . . The substantial evidence standard means once an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Id. at 447-48. "Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (internal quotation marks omitted). See also Bonet ex rel. T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013)("[W]hether there is substantial evidence supporting the appellant's view is not the question here; rather, we must decide whether substantial evidence supports the ALJ's decision.") (citations omitted) (emphasis in original).

         V. Discussion

         The plaintiff asserts that remand is warranted because the ALJ erred in finding that the plaintiff does not meet Listing § 12.02; failed to properly apply the treating physician rule; and failed to fully develop the record.

         A. Listing 12.02

         The plaintiff argues that (1) the ALJ failed to adequately explain his finding that the plaintiff does not meet Listing 12.02 and (2) the finding is not supported by substantial evidence.

         The plaintiff bears "the burden of proof at step three to show that [his] impairments meet or medically equal a Listing." Whitley v. Colvin, No. 3:17CV121(SALM), 2018 WL 1026849, at *8 (D. Conn. Feb. 23, 2018). "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

         As a threshold matter, the plaintiff incorrectly cites to the current version of Listing 12.02, which became effective January 17, 2017. See Revised Medical Criteria for Evaluating Mental Disorders, 81 F.R. 66138, 2016 WL 5341732 (Sept. 26, 2016). The ALJ rendered his decision in this case on November 16, 2016. The regulations provide that federal courts reviewing an SSA decision "us[e] the rules that were in effect at the time [the SSA] issued the decision[]. 81 F.R. 66138 n.1. Accordingly, the court utilizes the version of Listing 12.02 that was in effect when the ALJ adjudicated the plaintiff's claim. See Harmon v. Comm'r of Soc. Sec., No. 17-CV-171-FPG, 2018 WL 1586750, at *8 (W.D.N.Y. Apr. 2, 2018) (same).

         Listing 12.02 applies to "Organic Mental Disorders," defined as "[p]sychological or behavioral abnormalities associated with a dysfunction in the brain." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.02. "To satisfy this listing, plaintiff's impairment must meet both the paragraph A and B criteria, or the paragraph C criteria of that list." Cote v. Berryhill, No. 3:17CV1843(SALM), 2018 WL 4092068, at *9 (D. Conn. Aug. 28, 2018).

         The ALJ determined that the plaintiff did not meet the paragraph B criteria.[1]

         To satisfy paragraph B, the plaintiff's mental impairment must result ...


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