Seneschal v. Berryhill

          RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER AND ON THE DEFENDANT'S MOTION TO AFFIRM 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” or “the Commissioner”] denying the plaintiff Social Security Disability Insurance [“SSDI”] benefits.^[2]

         I. ADMINISTRATIVE PROCEEDINGS

         On or about April 12, 2012, the plaintiff filed an application for SSDI benefits claiming that he has been disabled since March 1, 2011, due to “[a]rthri[tis], diverticulitis, [l]eg problems, shoulder problems[, d]eaf in left ear, [f]atigue, [h]ernia, and [c]hronic [hepatitis] C [without] mention of heptic coma.” (Certified Transcript of Administrative Proceedings, dated February 1, 2018 [“Tr.”] 373-76; see Tr. 202, 263). The Commissioner denied the plaintiff's application initially and upon reconsideration. (Tr. 224-32, 234-49). On March 22, 2013, the plaintiff requested a hearing before an Administrative Law Judge [“ALJ”] (Tr. 281-82), and on June 26, 2014, a hearing was held before ALJ Martha Bower, at which the plaintiff and a vocational expert, Edmond J. Calandra, testified. (Tr. 199-223; see Tr. 315-335, 343-49). On August 5, 2014, the ALJ issued an unfavorable decision denying the plaintiff's claim for benefits. (Tr. 179-98). On August 13, 2014, the plaintiff requested review of the hearing decision (Tr. 178), and on October 26, 2015, the Appeals Council denied the plaintiff's request for review, thereby rendering the ALJ's decision the final decision of the Commissioner. (Tr. 2-6).

         The plaintiff appealed to the District Court from the ALJ's August 5, 2014 decision on December 21, 2015. See Seneschal v. Colvin, No. 3:15-CV-1845 (AVC), Doc. No. 1. In that case, the defendant filed a Motion for Entry of Judgment under Sentence Four of 42 U.S.C. § 405(g) with Reversal and Remand of the Cause to the Defendant. Seneschal, Doc. No. 18. In particular, the defendant stated, “Upon review of the record, the Commissioner finds that further development of the record and additional administrative action is warranted.” Seneschal, Doc. No. 18 at 1. The defendant indicated that, on remand, “[t]he ALJ will reassess [the] plaintiff's maximum residual functional capacity, and in so doing, reevaluate the medical and other opinions of record. The ALJ will also, if appropriate, obtain vocational expert testimony to determine whether plaintiff can perform past relevant work and/or make an adjustment to other work that exists in significant numbers.” Seneschal, Doc. No. 18 at 2.

         On July 11, 2016, Senior United States District Judge Alfred V. Covello entered an order reversing the Commissioner's decision and remanding the case to the Commissioner for additional administrative proceedings. See Seneschal, Doc. No. 19. Judgment entered in the plaintiff's favor on July 14, 2016. See Seneschal, Doc. No. 20.

         On August 20, 2016, the Appeals Council issued an order remanding the case to an ALJ. (Tr. 993-98). In the order, the Appeals Council specified that the ALJ should do the following: (1) further develop the record, including additional opinion evidence; (2) discuss whether it was “medically necessary” for the plaintiff to use a cane; and (3) address the plaintiff's overhead reaching limitations in his residual functional capacity. (Tr. 995-96). Accordingly, a second hearing before an ALJ took place on May 24, 2017, before ALJ John Noel. (See Tr. 831-47). At the hearing before ALJ Noel, the plaintiff, and vocational expert, Steven B. Sachs, PhD, ^[3] testified. On September 6, 2017, the ALJ issued another unfavorable decision denying the plaintiff's claim for benefits. (Tr. 828-47).

         The plaintiff filed his complaint in this pending action on January 3, 2018. (Doc. No. 1). On January 22, 2018, the parties consented to jurisdiction by a United States Magistrate Judge, and the case was reassigned to Magistrate Judge Joan G. Margolis. (Doc. No. 16). On March 9, 2018, the defendant filed her answer and certified administrative transcript, dated February 1, 2018. (Doc. No. 17). The case was then transferred to this Magistrate Judge on May 1, 2018. (Doc. No. 21). After three consent motions for extension of time, the plaintiff filed the pending Motion to Reverse the Decision of the Commissioner on July 2, 2018, with brief in support (Doc. No. 29 [Pl.'s Mem.]), and a stipulation of facts. (Doc No. 29-1). On August 31, 2018, the defendant filed her Motion to Affirm the Decision of the Commissioner with brief in support. (Doc. No. 30 [Def.'s Mem.]).

         For the reasons stated below, the plaintiff's Motion to Reverse the Decision of the Commissioner (Doc. No. 29) is DENIED, and the defendant's Motion to Affirm (Doc. No. 30) is GRANTED.

         II. FACTUAL BACKGROUND^[4]

         The Court presumes parties' familiarity with the plaintiff's medical history, which is thoroughly discussed in the Joint Stipulation of Facts (Doc. No. 29-1). The Court cites only the portions of the record that are necessary to explain this ruling.

         III. THE ALJ'S DECISION

         Following the five-step evaluation process, ^[5] the ALJ found that the plaintiff's date last insured was September 30, 2016 (Tr. 834), and that the plaintiff had not engaged in substantial gainful activity since the alleged onset date of March 1, 2011, through his date last insured. (Tr. 834, citing 20 C.F.R. § 404.1571 et seq.). The ALJ concluded that, as of the date last insured, the plaintiff had the following severe impairments: degenerative disc disease; arthritis of the upper and lower extremity; depression; and post-traumatic stress disorder.^[6] (Tr. 834, citing 20 C.F.R. § 404.1520(c)). At step three, the ALJ concluded that, as of the date last insured, the plaintiff did not have an impairment or a combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 836, citing 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). The ALJ found that, as of the date last insured, the plaintiff had the residual functional capacity [“RFC”] to perform light work, as defined in 20 C.F.R. § 404.1567(b), except that he could only occasionally climb ramps, stairs, ladders, ropes, or scaffolds; frequently stoop; occasionally balance, kneel, crouch, and crawl; and could perform simple, routine tasks, use judgment limited to simple, work-related decisions, and deal with routine changes in the work setting. (Tr. 838). At step four, the ALJ concluded that, as of the date last insured, the plaintiff was unable to perform any past relevant work (Tr. 846, citing 20 C.F.R. § 404.1565); however, after considering the plaintiff's age, education, work experience, and RFC, he concluded, at step five, that jobs existed in significant numbers in the national economy that the plaintiff could perform. (Tr. 846, citing 20 C.F.R. §§ 404.1569 and 404.1569(a)). Specifically, the ALJ determined that the plaintiff could perform the jobs of a hand packer, a production worker, and a production inspector. (Tr. 847). Accordingly, the ALJ concluded that the plaintiff was not under a disability, as defined in the Social Security Act, at any time from the alleged onset date of March 1, 2011, through the date last insured of September 30, 2016. (Tr. 847, citing 20 C.F.R. § 404.1520(g)).

         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. See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation omitted). Second, the court must decide whether substantial evidence supports the determination. See Id. 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) (citation and internal quotations marks 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 several respects. First, the plaintiff argues that the ALJ improperly relied upon the testimony of the vocational expert, Dr. Sachs, in reaching his decision at step five of the analysis. (See Pl.'s Mem. at 1-21). Second, the plaintiff argues that the ALJ failed to follow the treating physician rule. (See Pl.'s Mem. at 21-28). Third, the plaintiff argues that the ALJ failed to develop the record, as there was no medical source statement from any of the plaintiff's mental health treating physicians. (See Pl.'s Mem. at 28-36). Lastly, the plaintiff argues that the “ALJ's evaluation of the plaintiff's pain was insufficient.” (See Pl.'s Mem. at 36-37). The Court disagrees with the plaintiff's claims.

         A. THE ALJ PROPERLY RELIED ON THE TESTIMONY OF THE VOCATIONAL EXPERT

         The plaintiff argues that the ALJ relied improperly upon the testimony of the vocational expert, Dr. Sachs, in reaching his conclusion at step five. (See Pl.'s Mem. at 1-21). Specifically, the plaintiff argues that Dr. Sachs's use of data from the U.S. Publishing Company, which gets its data from the Bureau of Labor Statistics, is problematic for two reasons: (1) “the U.S. Publishing Company document only breaks down Bureau of Labor Statistics data by skill level and exertional level; it does not account for any of the other variables that might be included in an ALJ's hypothetical”; and (2) “Mr. Sachs has provided us with absolutely no indication of how this U.S.

         Publishing Company document comes up with its numbers (the sole source of his job incidence testimony) or the reliability of those numbers.” (Pl.'s Mem. at 6 (emphasis omitted)). The defendant responds that Dr. Sachs “utilized reliable statistical sources from U.S. Publishing, as well as his personal knowledge of the labor market and his over twenty-years of experience as an expert to develop his opinions, ” and that, “as the ALJ noted in his decision, he was empowered, under 20 C.F.R. § 404.1566 to take administrative notice of the U.S. Publishing data that [Dr.] Sachs relied, in part, upon.” (Def.'s Mem. at 18-19).

         The substantial evidence standard is both “deferential” and “extremely flexible.” Brault v. Comm'r Soc. Security, 683 F.3d 443, 449 (2d Cir. 2012). Federal courts have “review[ed] the entirety of a [vocational expert's] testimony, including the expert's methods, to make sure it rose to the level of ‘substantial' evidence.” Id. at 450 (citing Palmer v. Astrue, No. 1:10-CV-151 (JGM), 2011 WL 3881024, at *6 (D. Vt. Sept. 2, 2011); see also Jones-Reid v. Astrue, 934 F.Supp.2d 381, 406-07 (D. Conn. 2012) (concluding that an ALJ had a sufficient basis to find a vocational expert's testimony reliable, where the vocational expert “utilized reliable statistical sources as well [as] personal knowledge and experience to develop the occupational projections provided, ” and that “[w]hile the [vocational expert] did not provide a step-by-step description of the methodology used, this Court cannot say that the ALJ erred in accepting the [vocational expert's] testimony as reliable.”). The Second Circuit has explained that substantial evidence supports a vocational expert's testimony where the vocational expert has “identified the sources he generally consulted to determine such figures, ” and that there is a “marked absence of any applicable regulation or decision of this Court requiring a vocational expert to identify with greater specificity the source of his figures or to provide supporting documentation.” Brault, 683 F.3d at 450 (citing Galliotti v. Astrue, 266 Fed.Appx. 66 (2d Cir. 2008) ...