Galarza v. Berryhill

          RULING ON CROSS MOTIONS

          HON. SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Eugenio L. Galarza, brings this appeal pursuant to §205(g) of the Social Security Act (“the Act”), as amended, seeking review of a final decision by the Acting Commissioner of the Social Security Administration (the “Commissioner”) denying his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Plaintiff has moved for an order reversing the decision of the Commissioner, or in the alternative, for remand [Doc. #18]. Defendant has filed a motion for an order affirming the decision of the Commissioner [Doc. #20]. Plaintiff has filed a reply [Doc. #21].^[1]

         For the reasons set forth below, plaintiff's Motion to Reverse or Remand [Doc. #18] is DENIED, and defendant's Motion for an Order Affirming the Decision of the Commissioner [Doc. #20] is GRANTED.

         I. PROCEDURAL HISTORY^[2]

         Plaintiff filed applications for DIB and SSI on February 19, 2015, alleging disability beginning May 1, 2011. See Certified Transcript of the Administrative Record, Doc. #16 and attachments, compiled on March 9, 2018, (hereinafter “Tr.”) at 235-249. Plaintiff's applications were denied initially on October 1, 2015, see Tr. 95-96, and upon reconsideration on January 28, 2016, see Tr. 121-122.^[3]

         On June 1, 2017, plaintiff, represented by Attorney Howard B. Schiller, and with the aid of an interpreter, appeared and testified before Administrative Law Judge (“ALJ”) Ryan A. Alger. See Tr. 41-53. Vocational Expert (“VE”) Renee B. Jubrey testified by telephone at the hearing. See Tr. 60-64. Delores Cardona also testified. See Tr. 53-60. Plaintiff resides with Ms. Cardona, the mother of his sixteen-year-old twins. See Tr. 50. On June 28, 2017, the ALJ issued an unfavorable decision. See Tr. 15-38. On December 13, 2017, the Appeals Council denied plaintiff's request for review, making the ALJ's June 28, 2017, decision the final decision of the Commissioner. See Tr. 1-8. The case is now ripe for review under 42 U.S.C. §405(g).

         II. STANDARD OF REVIEW

         The 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. See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). Second, the court must decide whether the determination is supported by substantial evidence. See Id. 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).

         The 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.”). “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 [his] disability determination made according to the correct legal principles.” Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).

         “[T]he 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). 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). It is well established that “an ALJ's credibility determination is generally entitled to deference on appeal.” Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013); see also Kessler v. Colvin, 48 F.Supp.3d 578, 595 (S.D.N.Y. 2014) (“A federal court must afford great deference to the ALJ's credibility finding, since the ALJ had the opportunity to observe the claimant's demeanor while the claimant was testifying.” (citation and internal quotation marks omitted)); Pietrunti v. Dir., Office of Workers' Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997) (“Credibility findings of an ALJ are entitled to great deference and therefore can be reversed only if they are patently unreasonable.” (citation and internal quotation marks omitted)).

         It is 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). “[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.” Bonet ex rel. T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013).

         III. SSA LEGAL STANDARD

         Under the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits. 42 U.S.C. §423(a)(1).

         To be 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 [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); see also 20 C.F.R. §404.1520(c) (requiring that the impairment “significantly limit[] ... physical or mental ability to do basic work activities[]” to be considered “severe”).^[4]

         There is a familiar five-step analysis used to determine if a person is disabled. See 20 C.F.R. §404.1520. 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 [she] is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits [her] 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 [her] 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 fifth steps:

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 [her] past work. Finally, if the claimant is unable to perform [her] 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.

Id.

         “Through 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) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003)); Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)). “Residual functional capacity” (“RFC”) is what a person is still capable of doing despite limitations resulting from her physical and mental impairments. See 20 C.F.R. §404.1545(a)(1).

         “In 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. (citation and internal quotation marks omitted).

         IV. THE ALJ'S DECISION

         Following the above-described five-step evaluation process, the ALJ concluded that plaintiff was not disabled under the Act. See Tr. 31. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date of May 1, 2011. See Tr. 23. At step two, the ALJ found that plaintiff had the severe impairments of “degenerative disc disease of the lumbar spine, bilateral shoulder arthritis, [and] status post rotator cuff repair[.]” Id.

         At step three, the ALJ found that plaintiff's impairments, either alone or in combination, did not meet or medically equal the severity of any of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. See Tr. 24. The ALJ specifically considered Listings 1.00 (Musculoskeletal System), 1.02 (Major dysfunction of a joint(s) (due to any cause)), and 1.04 (Disorders of the spine). See Tr. 24. Before moving on to step four, the ALJ found plaintiff had the RFC

to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can frequently climb stairs and ramps; cannot climb ladders, ropes, or scaffolds; occasionally kneel; cannot crawl; cannot perform overhead work bilaterally; and can occasionally push and pull bilaterally.

Id.

         At step four, the ALJ concluded that plaintiff had no past relevant work. See Tr. 29. Before moving on to step five, the ALJ found that plaintiff “is illiterate and is able to communicate in English[.]” Tr. 29. At step five, and after considering the testimony of the VE as well as plaintiff's age, education, work experience, and RFC, the ALJ found that jobs existed in significant numbers in the national economy that plaintiff could perform. See Tr. 30.

         V. DISCUSSION

         Plaintiff asserts that the ALJ erred:

1. at step two by failing to assess plaintiff's vascular impairment and failing to classify it as severe;

2. at step three by concluding that plaintiff's impairments did not meet Listing 1.04;

3. by not appropriately weighing the evidence when determining plaintiff's RFC; and

4. at step five by not adequately considering plaintiff's illiteracy when determining what jobs plaintiff could perform.

         The Court addresses each argument in turn.

         A. Step Two: Consideration of Vascular Condition

          Plaintiff contends that the ALJ erred at step two by not discussing plaintiff's “lower extremity vascular condition[, ]” Doc. #18 at 9, and, thus, implicitly determining that it was not a severe impairment. See Doc. #18 at 8-10; Doc. #21 at 1-6. The Commissioner argues that plaintiff did not meet his burden to “show that the impairment was both medically determinable and severe[, ]” and has not established that any alleged error was harmful. Doc. #20-1 at 3; see Id. at 5.

         At step two of the sequential evaluation process, the ALJ must determine whether the claimant has an impairment or combination of impairments “of such severity” that it “significantly limits [his] physical or mental ability to do basic work activities[.]” 20 C.F.R. §§404.1520(c), 416.920(c). At this step, “then, medical evidence alone is evaluated in order to assess the effects of the impairment(s) on ability to do basic work activities.” Social Security Ruling (“SSR”) 85-28, 1985 WL 56856, at *4 (S.S.A. Jan. 1, 1985). Examples of “basic work activities” include:

(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering simple instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-workers and usual work situations; and

(6) Dealing with changes in a routine work setting.

20 C.F.R. §§404.1521(b)(1)-(6), 416.921(b)(1)-(6).

         Step two, the Second Circuit has held, is limited to “screen[ing] out de minimis claims[.]” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). However, “[t]he presence of an impairment is ... not in and of itself disabling within the meaning of the Act.” Coleman v. Shalala, 895 F.Supp. 50, 53 (S.D.N.Y. 1995). Plaintiff bears the burden at step two of showing that his medical impairments are severe. See Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); 20 C.F.R. §§404.1512(a), 416.912(a).

         Plaintiff claims that his documented claudication and “bilateral lower extremity circulation deficits[]” should have been discussed, and found to be severe, by the ALJ. Doc. #18 at 9; see also Doc. #21 at 1-6. These conditions appear to constitute the “Peripheral Vascular (Arterial) Disease” that Dr. Sandell, a state agency medical consultant, found to be severe. Tr. 103, 115. Plaintiff points to two sources of information related to his vascular condition, and contends that the “lower extremity circulatory issues would have a synergistic impact upon his ability to stand and walk when coupled with the discogenic issues affecting his legs.” Doc. #21 at 4.^[5]

         The first records addressing symptoms related to a vascular condition date to a September 25, 2015, visit to Windham Hospital, where plaintiff presented with “sharp chest pains[.]” Tr. 521. Plaintiff points to records from that visit stating that he had a “hemodynamically significant pressure gradient consistent with right femoropopliteal arterial disease[, ]” and “hemodynamically significant contralateral pressure gradient consistent with left femoral arterial disease.” Tr. 518. These records also state that plaintiff has “risk factors for peripheral vascular disease including tobacco use. The patient presents with chest pain and bilateral lower extremity claudication symptoms.” Id. (emphasis added). Although the staff at Windham Hospital reached their conclusions after plaintiff ran on a treadmill, see Tr. 518, and were aware of plaintiff's lower back pain, see Tr. 520-21, plaintiff was sent home from Windham Hospital without any restrictions related to mobility or exertion, see Tr. 522 (“Discharge Activity: None[;] Additional Discharge Instructions: out patient stress test, use vicodin for pain[.]” (sic)).

         Plaintiff was seen at Generations Family Medical Center on October 22, 2015, at which time he “reported that he had developed chest pain after having an argument with his orthopedic surgeon. A stress test had shown bilateral peripheral artery disease.” Doc. #19 at 15. Plaintiff makes no reference to this visit in his motion. These records state that plaintiff's symptoms were “relieved by rest[.]” Tr. 547. With regard to cardiovascular symptoms, these records document only “[c]hest pain or discomfort[.]” Tr. 548. This visit, similarly, did not result in any exertional restrictions; plaintiff was advised to maintain a healthy diet and lose weight. See Tr. 549.

         When summarizing these two medical records in his “Key Somatic Findings[, ]” Dr. Sandell noted “PAD[, ]” and concluded that plaintiff's “Peripheral Vascular (Arterial) Disease[, ]” was a severe impairment. Tr. 102-103; 114-15. Dr. Sandell is a state agency medical consultant who has never examined or treated plaintiff. See Tr. 103-04; 115-16; Doc. #19 at 2.

         After identifying those of plaintiff's conditions he considered “severe[, ]” Dr. Sandell assessed plaintiff's exertional limitations. Tr. 103, 115; see also Tr. 104, 116. Dr. Sandell opined that plaintiff could not lift more than ten pounds, and could only stand and/or walk with normal breaks for two hours in an eight hour workday. See Tr. 103-04, 115-16. When asked to provide evidence in support of his conclusions, Dr. Sandell wrote that plaintiff could only lift five to seven pounds frequently, but failed to provide any specific diagnostic basis for these exertional restrictions. See Tr. 104, 116. When Dr. Sandell evaluated plaintiff's environmental limitations, he opined that ...