United States District Court, D. Connecticut
EUGENIO L. GALARZA
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION
RULING ON CROSS MOTIONS
SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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).
STANDARD OF REVIEW
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).
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).
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)).
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).
SSA LEGAL STANDARD
the Social Security Act, every individual who is under a
disability is entitled to disability insurance benefits. 42
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
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
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.
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).
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).
THE ALJ'S DECISION
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
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.
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.
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
Court addresses each argument in turn.
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.
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”
(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
(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).
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.
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
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
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.
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.
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