Matteo v. Berryhill

          RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER AND ON THE DEFENDANT'S MOTION TO AFFIRM

          ROBERT M. SPECTOR, UNITED STATES MAGISTRATE JUDGE

         This action, filed under Section 205(g) of the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3), as amended, seeks review of a final decision by the Commissioner of Social Security [“SSA”] denying the plaintiff Disability Insurance Benefits [“DIB”].^[2]

         I. ADMINISTRATIVE PROCEEDINGS

         On April 19, 2012, the plaintiff, Bruce Matteo filed an application for DIB, in which he alleged that he has been disabled since September 1, 2007 due to a back injury. (Certified Transcript of Administrative Proceedings, dated December 29, 2017 [“Tr.”] 188-91).^[3] After exhausting his administrative remedies, he commenced an action in this court which resulted in judgment entering in favor of the plaintiff, and a remand of his case to the Office of Disability Adjudication and Review's New Haven Hearings Office. (Tr. 540-43, 545-73; see Matteo v. Colvin, 3:15 CV 440(WWE)(JGM), Doc. No. 19 [“August 2016 Recommended Ruling”], approved and adopted by Senior United States District Judge Warren W. Eginton, Doc. No. 22; see generally Tr. 1-282, 574-668, 692-751). Upon remand, a hearing was held on April 21, 2017, before Administrative Law Judge [“ALJ”] Deirdre R. Horton. (Tr. 1471-1522; see generally Tr. 674-81, 767-82, 794-97). On August 2, 2017, the ALJ issued her decision denying the plaintiff benefits. (Tr. 511-30). No written exceptions were filed, and the Appeals Council did not take “own motion” review, thus, the ALJ's decision became the final, appealable decision of the Commissioner. See 20 C.F.R. § 404.984(a) (“[W]hen a case is remanded by a Federal court for further consideration, the decision of the [ALJ] will become the final decision of the Commissioner after remand . . . unless the Appeals Council assumes jurisdiction of the case.”); 20 C.F.R. § 404.984(d) (“If no exceptions are filed and the Appeals Council does not assume jurisdiction of [the] case, the decision of the administrative law judge becomes the final decision of the Commissioner after remand.”).

         On December 21, 2017, the plaintiff filed his complaint in this pending action. (Doc. No. 1), ^[4] and on February 26, 2018, the defendant filed her answer and administrative transcript, dated December 29, 2017 (Doc. No. 16), followed by a supplemental transcript, dated January 3, 2018. (Doc. No. 20). On June 6, 2018, the plaintiff filed his Motion to Reverse the Decision of the Commissioner, with Statement of Material Facts and brief in support. (Doc. No. 25; see Doc. No. 26 (Amended Statement of Material Facts)).^[5] On July 13, 2018, the parties consented to the jurisdiction of a United States Magistrate Judge, and the case was transferred to this Magistrate Judge. (Doc. No. 29). On July 19, 2018, the defendant filed her Motion to Affirm, with brief in support. (Doc. No. 30).

         For the reasons stated below, the plaintiff's Motion to Reverse the Decision of the Commissioner (Doc. No. 25) is denied, and the defendant's Motion to Affirm the Decision of the Commissioner (Doc. No. 30) is granted.

         II. REMAND ORDER

         In the August 2016 Recommended Ruling, Judge Margolis concluded that remand for the “proper consideration and treatment” of the opinion of Dr. Gary Linke, the plaintiff's chiropractor, was appropriate given the long treatment history “specifically for the back impairments for which [the plaintiff] claims disability.” (Tr. 568). Additionally, as stated in the August 2016 Recommended Ruling:

A remand is particularly important in this case in light of the balance of the ALJ's treatment of the other opinions of record. The ALJ concluded that [the] plaintiff is capable of a more restrictive RFC than the RFC assessment made by both State medical consultants, . . . but the ALJ did not discuss their opinions other than to state that they “do deserve come weight, particularly in a case like this in which there exist a number of other reasons to reach similar conclusions.” Similarly, the ALJ assigned limited weight to Dr. Mongillo's opinion because it “was based upon a one-time consultative examination[, ]” Dr. Mongillo “did not have diagnostic testing to review[, ] and the evidence reflects that the claimant treated with only physical therapy and over-the-counter pain medication.” However, when an ALJ does not assign controlling weight to the opinion of the treating provider, the ALJ must explain the weight given to the opinions of the State agency consultants by considering the relevant factors set forth in the Regulations. 20 C.F.R. § 404.1527. The ALJ failed to do so in this case; upon remand, she shall properly explain the weight assigned to the opinions of record.

As for [the] plaintiff's treating providers' opinions, the ALJ's treatment of such records is inconsistent in that she assigned them limited weight because of the timing of such opinions, but yet went on to weigh such opinions against the record. . . .

(Tr. 568-69) (internal citations omitted). Additionally, as stated in the August 2016 Recommended Ruling, “[a]lthough the ALJ did conflate Dr. Parillo's opinion and his underlying treatment notes, the ALJ was correct that Dr. Parillo noted improvement in [the] plaintiff's condition under his case, and noted the record of improvement in [the] decision.” (Tr. 570) (internal citations omitted). Judge Margolis concluded that,

on remand, the ALJ must weigh [the] plaintiff's credibility after, and in light of, proper consideration of the opinions and the objective evidence of the record. Once the ALJ revisits the opinions of record consistent with this remand order, the ALJ shall consider what effect, if any, such consideration has on [the] plaintiff's RFC and the corresponding vocational analysis.

(Tr. 571).

         Following Judge Eginton's ruling approving and adopting the August 2016 Recommended Ruling over objection, judgment entered, and the case was remanded to the Appeals Council. (Tr. 573). The Appeals Council remand order “vacate[d] the final decision of the Commissioner of Social Security and remand[ed] th[e] case to an Administrative Law Judge for further proceedings consistent with the order of the court.” (Tr. 542). Additionally, the Appeals Council directed the ALJ “to offer the claimant the opportunity for a new hearing, take any further action needed to complete the administrative record and issue a new decision.” (Tr. 542).

         In her decision, ALJ Horton stated: “To implement the Court's remand order, the Appeals Council ordered a new hearing, without additional instructions. The remand requires the undersigned to assess pain-related and residual functional capacity issues described in the “August 2016 Recommended Ruling which was approved and adopted in September 2016.” (Tr. 514).

         III. FACTUAL BACKGROUND

         As noted above, the plaintiff's alleged onset date was September 1, 2007, and his date last insured was December 31, 2012. Familiarity with the extensive factual background as it existed up to October 2013, including the plaintiff's activities of daily living, his medical records, the assessments of the State agency consultants, and the medical opinions, is presumed and is detailed in the August 2016 Recommended Ruling. See Matteo v. Colvin, 3:15 CV 440 (WWE)(JGM), Doc. No. 19 at 2-14.

         Following remand to the ALJ, a hearing was held on April 21, 2017, at which the plaintiff, APRN Linda Grisgraber, and a vocational expert testified. (Tr. 1471-1522). Their testimony is detailed below. See Section IV.B. & IV.E. infra. At that point, the plaintiff was 47 years old (Tr. 1477). He testified that he has worn a back brace when walking since it was prescribed to him in the middle of 2012. (Tr. 1481-82). The plaintiff recounted that he had performed food service work until May 2005, following which he collected unemployment for 26 weeks, and began seeing Dr. Gary Linke, a chiropractor, and then Dr. Lucien Parillo who treated the plaintiff with epidural shots in his spine. (Tr. 1483-86). The plaintiff testified that he has been treated by APRN Grisgraber for the past four years to get him “mentally balanced[.]” (Tr. 1486). The plaintiff also testified that, in addition to his back issues, his hands “clinch up” and he “drops stuff” but that he declined surgery because he is “scared” of it. (Tr. 1491-92).

         He testified that his partner performs most of the house and yard work, and his partner's mother, who lives with them, “cooks a lot of meals[.]” (Tr. 1494). The plaintiff also testified that he fell in the previous two years after losing his balance in his kitchen; CT scans revealed that he suffered a concussion. (Tr. 1495).

         IV. THE ALJ'S DECISION

         Following the five-step evaluation process, ^[6] the ALJ found that the plaintiff did not engage in substantial gainful activity during the period from his alleged onset date of September 1, 2007 through his date last insured of December 31, 2012. (Tr. 517, citing 20 C.F.R. § 404.1571 et seq.). The ALJ concluded that through his date last insured of December 31, 2012, the plaintiff had the following severe impairments: degenerative disc disease of his lumbar spine and minimal cervical stenosis at ¶ 3-4. (Tr. 517-23, citing 20 C.F.R. § 404.1520(c)). The ALJ explained that APRN Grisgraber's hearing testimony that the plaintiff's mental impairments are disabling was not supported by the chronological treatment history; the record revealed a history of “favorable mental/cognitive relationships” with the plaintiff's longtime employer; and, the record did not support a history of mental limitations before the plaintiff's date last insured. (Tr. 517-22). She next found that, through his date last insured, the plaintiff did not have an impairment or combination of impairments that met or medically equal the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 524, citing 20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). The ALJ noted that the medical evidence did not support a finding that the plaintiff's back impairment met Listing 1.04 as he had “no nerve root compression[, ]” he could walk without an assistive device, and he did not have “major disc herniation.” (Tr. 524).

         At Step Four, the ALJ concluded that, “[a]fter careful consideration of the entire record, ” the plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) except lifting and carrying was limited to ten pounds; standing and walking was limited to four hours per eight-hour workday; he was unable to climb ladders/ropes/scaffolds or stairs; he could do occasional stooping and kneeling, and no crouching or crawling; and could do frequent balancing, handling and reaching. (Tr. 524-28). The ALJ discussed the treatment records of Dr. Samma, which she found inconsistent and lacking “clinical findings”; she addressed Dr. Parillo's treatment records in which “the claimant described . . . improvement in his pain level and activity level”; and she discussed Dr. Linke's records and disability rating in connection with the plaintiff's worker's compensation case, before concluding that “his course of chiropractic care, if anything, would support less work restrictions than are adopted [by the ALJ].” (Tr. 525-26). Additionally, the ALJ found Dr. Mongillo's report “more consistent with the State Agency denial[, ]” and “more consistent with Dr. Linke's ten percent disability rating than with the claimant's testimony about alleged, disabling pain.” (Tr. 526). Finally, the ALJ considered the consistency of the plaintiff's testimony at the two hearings, with the underlying medical records, as well as the plaintiff's pain, which the ALJ noted was managed with “conservative care.” (Tr. 527-28).

         The ALJ then concluded that, through his date last insured, the plaintiff was unable to perform his past relevant work as a cashier, dishwasher and cook's helper (Tr. 528, citing 20 C.F.R. § 404.1565), but that there were jobs that existed in significant numbers in the national economy that the plaintiff could have performed, such as the work of an assembler of small products, an inspector/hand packager, or a mail room clerk. (Tr. 528-29, citing 20 C.F.R. §§ 404.1569 and 1569(a)). Accordingly, the ALJ concluded that the plaintiff was not under a disability, as defined in the Social Security Act, at any time from September 1, 2007, through his date last insured, December 31, 2012. (Tr. 529, citing 20 C.F.R § 404.1520(g)).

         V. 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).

         VI. DISCUSSION

         A. PLAINTIF ...