Purcell v. Berryhill

          RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER AND ON THE DEFENDANT'S MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

          Robert M. Spector United States Magistrate Judge.

         This action, filed under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeks review of a final decision by the Commissioner of Social Security [“SSA”] denying the plaintiff Disability Insurance benefits [“DIB”].

         I. ADMINISTRATIVE PROCEEDINGS

         On or about March 14, 2014, the plaintiff filed an application for DIB benefits claiming she has been disabled since January 1, 2009 due to degenerative hip disease, arthritis in her left hip, “right hip condition[, ]” and bilateral knee “condition[.]” (Certified Transcript of Administrative Proceedings, dated November 28, 2017 [“Tr.”] 171-72, 195, 198, 231, 233). The plaintiff's application was denied initially (Tr. 108-11), and upon reconsideration. (Tr. 114-16). On October 21, 2014, the plaintiff requested a hearing before an Administrative Law Judge [“ALJ”] (Tr. 117-18), and on May 12, 2016, a hearing was held before ALJ John Noel, at which the plaintiff and a vocational expert testified. (Tr. 44-77; see Tr. 148-70). On June 23, 2016, the ALJ issued an unfavorable decision denying the plaintiff's claim for benefits. (Tr. 16-26). On July 19, 2016, the Appeals Council received the plaintiff's request for review of the hearing decision (Tr. 9-10), and on July 26, 2017, the Appeals Council denied the request, thereby rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-3).

         On September 26, 2017, the plaintiff filed her complaint in this pending action (Doc. No. 1), and on December 18, 2017, the defendant filed her answer and administrative transcript, dated November 28, 2017. (Doc. No. 14). On January 26, 2018, the parties consented to the jurisdiction of a United States Magistrate Judge (see Doc. No. 18); the case was transferred to Magistrate Judge Joan G. Margolis. (Doc. No. 19). On February 20, 2018, the plaintiff filed her Motion for Reversal or Remand (Doc. No. 20), with Statement of Material Facts (Doc. No. 20-1) and brief in support (Doc. No. 20-2 [“Pl.'s Mem.”]). On March 21, 2018, the defendant filed her Motion to Affirm (Doc. No. 21), and brief in support (Doc. No. 21-1 [“Def.'s Mem.”]). On May 1, 2018, this case was reassigned to this Magistrate Judge. (Doc. No. 23).

         For the reasons stated below, the plaintiff's Motion to Reverse the Decision of the Commissioner (Doc. No. 20) is denied, and the defendant's Motion to Affirm (Doc. No. 21) is granted.

         II. FACTUAL BACKGROUND

         At the time that the plaintiff filed her application for benefits, she was 58 years old and living in an in-law apartment attached to her daughter's home. (Tr. 171-72, 211). The plaintiff attended college for three years. (Tr. 199). She worked as a sales representative for fifteen years before she “became unable to work.” (Tr. 200). Prior to working as a sales representative, she worked as an owner and director of a nursery school and worked at an indoor plant landscaping business. (Tr. 240).

         The plaintiff reported in her application for benefits that she stopped working as a sales representative when the company “downsized.” (Tr. 199). The plaintiff explained that her “degenerative hip disease was diagnosed in 2005. Although for a time [she] worked, while suffering, [she] became severely unable to work around 2008/2009, after [she] stopped working for [her] employer.” (Tr. 199). The plaintiff, however, also testified that in 2010, she was able to care for her father by making him meals and keeping him company. (Tr. 62-63, 65). According to the plaintiff, by 2013, she could not stand for an hour, nor could she walk for a city block because walking made her pain “[h]orribly worse.” (Tr. 62, 66). She claimed that her gait was “very unstable” in 2013 as well. (Tr. 70). She could not stand in place because of pain, so she solicited help from “good friends” and her daughter. (Tr. 67). Additionally, she could sit for “maybe 20 minutes to a half an hour depending on the day[.]” (Tr. 71). She could spend only 15 to 20 minutes out of an eight-hour day on the computer. (Tr. 72). The plaintiff could perform household cleaning tasks, and her adult daughter would help, especially with tasks involving bending and lifting. (Tr. 63-64). Her chores would “take[] . . . a lot more time and [the] chores [would] have to be spread out.” (Tr. 212). The plaintiff also testified that she has had trouble sleeping due to pain since 2005. (Tr. 68).

         At the hearing, a vocational expert testified that a hypothetical individual who is limited to the full range of light work, with the ability to occasionally climb ramps or stairs, never climb ladders or scaffolds, and occasionally balance, stoop, kneel, crouch and crawl, could perform the plaintiff's past work as a director of a preschool program, a sales representative, and a customer service representative. (Tr. 75-76). If that hypothetical person was limited to sedentary work, the person could perform work as a “customer service representative[, ]” but could not perform the two jobs that the plaintiff performed previously. (Tr. 76). If the hypothetical person was off task ten percent of the time, or absent one day a month, it “would be very difficult to maintain any type of employment.” (Tr. 76). Additionally, if the “worker took three additional [break] periods of 10 to 15 minutes, each time throughout the hour[, ]” that person could not maintain employment. (Tr. 76-77).

         III. THE ALJ'S DECISION

         Following the five-step evaluation process, ^[2] the ALJ found that the plaintiff did not engage in substantial gainful activity during the period from her alleged onset date of January 1, 2009 through her date last insured of March 31, 2013. (Tr. 21, citing 20 C.F.R. § 404.1571 et seq.). The ALJ concluded that, through her date last insured, the plaintiff had the severe impairment of bilateral hip degenerative joint disease (Tr. 20-21, citing 20 C.F.R. §§ 404.1520(c)), but that the plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 22, citing 20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). The ALJ found that, after careful consideration of the entire record, the plaintiff had the residual functional capacity [“RFC”] to perform light work as defined in 20 C.F.R. § 404.1567(b) except she could only occasionally climb ramps and stairs, never climb ladders, ropes and scaffolds, and occasionally balance, stoop, kneel, crouch, and crawl. (Tr. 22-25). The ALJ concluded that, through her date last insured, the plaintiff could perform her past relevant work as a sales representative, and that work did not require the performance of work-related activities precluded by the claimant's residual functional capacity. (Tr. 25, citing 20 C.F.R. § 404.1565). Accordingly, the ALJ concluded that the plaintiff was not under a disability at any time from January 1, 2009, the alleged onset date, through March 31, 2013, the date last insured. (Tr. 26, citing 20 C.F.R. § 404.1520(f)).

         IV. STANDARD OF REVIEW

         The scope of 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). The court may “set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by substantial evidence or if the decision is based on legal error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation marks & citation omitted); see also 42 U.S.C. § 405(g). 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) (citation omitted); see Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) (citation omitted). The substantial evidence rule also applies to inferences and conclusions that are drawn from findings of fact. See Gonzalez v. Apfel, 23 F.Supp.2d 179, 189 (D. Conn. 1998) (citation omitted); Rodriguez v. Califano, 431 F.Supp. 421, 423 (S.D.N.Y. 1977) (citations omitted). However, the court may not decide facts, reweigh evidence, or substitute its judgment for that of the Commissioner. See Dotson v. Shalala, 1 F.3d 571, 577 (7th Cir. 1993) (citation omitted). Instead, the court must scrutinize the entire record to determine the reasonableness of the ALJ's factual findings. See Id. Furthermore, the Commissioner's findings are conclusive if supported by substantial evidence and should be upheld even in those cases where the reviewing court might have found otherwise. See 42 U.S.C. § 405(g); see also Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997) (citation omitted); Eastman v. Barnhart, 241 F.Supp.2d 160, 168 (D. Conn. 2003).

         V. DISCUSSION

         The plaintiff contends that the ALJ erred in his review of the medical evidence as the medical evidence and testimony “indicated onset prior to the [date last insured] per [Social Security Ruling] 83-20[.]” (Pl.'s Mem. at 8-12). Specifically, the plaintiff argues that, under SSR 83-20, the ALJ should have considered the slow progression of her impairment, the date that she stopped working, and the opinion of a medical expert. (Pl.'s Mem. at 8-15). Additionally, the plaintiff contends that the ALJ “misstated the record[]” in his discussion of Dr. Phillip Mongelluzzo's opinion; he mischaracterized the evidence after the evaluation of Dr. Robert Kennon; he erroneously interpreted the phrase “doing well[]”; and, he erred in his treatment of Dr. Mongelluzzo's and Dr. Kennon's opinions. (Pl.'s Mem. at 15-25). The plaintiff argues that the ALJ erred in his assessment of the lack of medical treatment (Pl.'s Mem. at 25-27) and erred in his decision that the plaintiff's impairment did not meet Listing 1.02 because there was no evidence of ineffective ambulation. (Pl.'s Mem. at 27-32). Finally, the plaintiff argues that the ALJ erred in his credibility determination. (Pl.'s Mem. at 33-36).

         In response, the defendant contends that the ALJ did not err in concluding that the plaintiff's lumbar spine impairment did not satisfy Listing 1.02 (Def.'s Mem. at 6-8); substantial evidence supports the ALJ's RFC determination (Def.'s Mem. at 8-18); and, SSR 83-20 is inapplicable to the plaintiff's case as SSR 83-20 “only applies when a claimant has been found disabled and is necessary to determine a disability onset date.” (Def.'s Mem. at 19-20).^[3]

         A. LISTING 1.02

         The plaintiff contends that the ALJ erred in her conclusion that the plaintiff's impairment does not meet ...