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Parsons v. Berryhill

United States District Court, D. Connecticut

March 14, 2019




         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 [“SSDI”] and supplemental security income [“SSI”] benefits.


         On December 19, 2013, the plaintiff filed an application for SSI, and on April 10, 2014, the plaintiff filed an application for SSDI claiming that he has been disabled since December 5, 2012 due to a “[c]ollapsed lung, seizures [and that he is] half blind[, ]”and because he suffers from depression and is “suicidal[.]” (Certified Transcript of Administrative Proceedings, dated November 18, 2017 [“Tr.”] Tr. 110; see Tr. 312).[2] The claims were joined and denied at the initial and reconsideration levels, and the plaintiff requested a hearing before an Administrative Law Judge [“ALJ”]. (Tr. 9-10, 184-85). On February 11, 2016, a hearing was held before ALJ John Noel at which the plaintiff and a vocational expert testified. (Tr. 33-70; see Tr. 365-67). On April 27, 2016, the ALJ issued an unfavorable decision denying the plaintiff's claim for benefits (Tr. 11-27), and on June 3, 2016, the plaintiff filed a request for review of the hearing decision. (Tr. 10). On July 17, 2017, the Appeals Council denied the request, thereby rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-3).

         On September 14, 2017, the plaintiff filed his complaint in this pending action (Doc. No. 1), and on December 11, 2017, the defendant filed her answer and administrative transcript, dated November 18, 2017. (Doc. No. 13). On April 13, 2018, the plaintiff filed his Motion to Reverse or Remand (Doc. No. 22), with Statement of Material Facts (Doc. No. 22-2) and brief in support (Doc. No. 22-1 [“Pl.'s Mem.”]). On June 12, 2018, the defendant filed her Motion to Affirm (Doc. No. 23), and brief in support (Doc. No. 23-1 [“Def.'s Mem.”]). On July 11, 2018, the plaintiff filed a reply brief. (Doc. No. 26). On December 18, 2018, the parties consented to the jurisdiction of a United States Magistrate Judge (Doc. No. 27; see Doc. Nos. 18, 21), and this case was transferred to this Magistrate Judge.

         For the reasons stated below, the plaintiff's Motion to Reverse the Decision of the Commissioner (Doc. No. 22) is granted, and the defendant's Motion to Affirm (Doc. No. 23) is denied.


         The plaintiff is married and has an eleventh-grade education. (Tr. 38). He worked as a “crew chief” for a landscaping business, and prior to that, installed brick paver driveways. (Tr. 2013, the Appeals Council denied the plaintiff's request for review thereby rendering the ALJ's decision the final decision of the Commissioner. (Tr. 103-06). 39-40; see Tr. 301-02, 313-14). The plaintiff has a license but cannot drive due to his history of seizures. (Tr. 40; see Tr. 325 (cannot be out alone or drive because of seizures)). The plaintiff has seizures every few months (see Tr. 40-41; see Tr. 342 (seizures about once a month)), and, at his hearing, the plaintiff testified that, for example, in 2015, he had “[p]robably four, maybe five[]” seizures. (Tr. 41).

         The plaintiff walks with a cane and must sit and rest after “maybe about a block.” (Tr. 41; see Tr. 325 (reporting that he needs a cane to stand or walk); see Tr. 333 (“I have a cane all the time”)). He can sit comfortably for about twenty minutes, and uncomfortably for about an hour before he has to move. (Tr. 41). According to the plaintiff, he has had pain in his lower back for the past five years, for which he has received injections in his lower spine. (Tr. 50, 53 (radiating pain from his back to lower extremities)). The plaintiff went to physical therapy, but he did not receive any benefit from that treatment. (Tr. 51-52). Additionally, he experiences neck pain that radiates into his left arm. (Tr. 53-54). The plaintiff testified that he went to the emergency room on one occasion believing that he was having a heart attack, when in fact he was experiencing numbness in his left arm due to radiating pain from his neck. (Tr. 53-54).

         The plaintiff testified that his wife helps him shower because he has a “hard time standing up on [his] own without the cane, ” and she helps him dress. (Tr. 55; see Tr. 323, 337). He does not cook because, in November 2014, he had a seizure while cooking breakfast and “that was the last time [his] wife let [him] cook.” (Tr. 57; see Tr. 323-24 (wife cooks dinner)).

         The ALJ asked the plaintiff about an entry in the medical record that stated he had been driving a truck with snowmobiles on it, and that he had fallen off a snowmobile. (Tr. 45-46). The plaintiff denied that he had a truck, that he had snowmobiles, and that he had been riding a snowmobile. (Tr. 45-46). The plaintiff testified that he used to drink heavily, but, at the time of the hearing, he was just drinking only on the weekends. (Tr. 46-47; see Tr. 331 (noting the plaintiff smelled of alcohol at 10:30am)). Additionally, he had a history of suicidal ideation and depression. (Tr. 47).

         The vocational expert testified that a person limited to performing medium work, but with the limitations of frequently climbing ramps and stairs, never climbing ladders, ropes or scaffolds, frequently stooping, never being exposed to unprotected heights or moving mechanical parts, and who could perform simple, routine tasks, have occasional contact with the public, and deal with changes in the work setting, limited to simple, work-related decisions, could not perform the plaintiff's past work as a landscape laborer. (Tr. 59-60). The vocational expert then testified that such an individual could perform the work of a hand packer, production worker, and production inspector at the medium or light level. (Tr. 60-61). If such a person needed a cane to ambulate to and from the work station, that person could perform the identified work, but if a cane was needed to perform the job, the medium jobs “would be ruled out[]” because the use of a cane would “preclude the ability to use bilateral hands to perform the job.” (Tr. 60-61). If the individual was limited to performing work at the light level of exertion, such individual could perform the work of a receptionist and general office clerk, both of which require occasional lifting and carrying up to twenty pounds, and both of which can be performed at the sedentary level if lifting is limited to ten pounds. (Tr. 62, 64). If an individual had a cane, he could still perform this work by carrying files with one hand. (Tr. 64).

         At the conclusion of the hearing, the plaintiff's counsel requested that the ALJ order “post hearing interrogatories to a medical expert inasmuch as [counsel] believe[d] that [the plaintiff's impairment] meets [L]isting 1.04.” (Tr. 64). The ALJ responded that “there's a lot in the record with respect to MRIs[.]” (Tr. 65). Plaintiff's counsel and the ALJ engaged in a colloquy about the ALJ's “quandary” over the plaintiff's credibility in light of the reference in the record to the plaintiff's use of a snowmobile; this reference was “bothering” the ALJ. (Tr. 65-68). Given the plaintiff's counsel's argument that the “analysis should be based upon the objective medical criteria[, ]” the ALJ said he would “consider” the request for the medical exam. (Tr. 65-68). In his decision, however, the ALJ denied the plaintiff's request. (Tr. 14).


         Following the five-step evaluation process, [3] the ALJ found that the plaintiff met the insured status requirements through December 31, 2012, and that the plaintiff's SSI application was protectively filed on December 19, 2013 so that, for purposes of the SSI claim, disability was not relevant prior to that date. (Tr. 15). The ALJ concluded that the plaintiff was not under a disability from December 15, 2012, through his date last insured of December 31, 2012. (Tr. 15). The ALJ concluded that, with respect to the SSI claim, that application was filed protectively on December 19, 2013, so “disability is not relevant until the application date, as the claimant is ineligible for benefits until a month after the application month.” (Tr. 15, citing 20 C.F.R. §§ 416.202(g), 416.330). Moreover, the ALJ concluded that the plaintiff has not been under a disability from the application date of December 19, 2013, through the date of his decision. (Tr. 15).[4]

         The ALJ found that the plaintiff has not engaged in substantial gainful activity since December 15, 2012, his alleged onset date. (Tr. 17, citing 20 C.F.R. §§ 404.1571 et seq. and 416.971 et seq.). At step two, the ALJ concluded that the plaintiff has the severe impairments of degenerative disc disease, affective disorder, and substance use disorders (Tr. 17-18, citing 20 C.F.R. §§ 404.1520(c) and 416.920(c)), but that the plaintiff does not have an impairment or combination of impairments that meet or medically equals the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 18-19, citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).[5] Specifically, the ALJ discussed the plaintiff's history of a collapsed lung in 2007, but noted that the plaintiff's continued complaints are “not well supported” by the record. (Tr. 18). The ALJ found that the plaintiff's visual impairment is “nonsevere”; his alleged dyslexia is not supported by any diagnosis of his mental health treating sources; and, his alleged schizophrenia is not a medically determinable impairment. (Tr. 18). The ALJ recited that he considered “all physical listings, including [L]isting 1.04[, ]” and concluded that the medical evidence in the record does not meet Listing 1.04 and that “no acceptable medical source has mentioned findings equivalent in severity to the criteria of any listed impairments, individually or in combination.” (Tr. 19). The ALJ then addressed the plaintiff's mental impairments before concluding that Listings 12.03, 12.04 and 12.09 were not met. (Tr. 19-20).

         At step three, the ALJ found that, “[a]fter careful consideration of the entire record, ” the plaintiff had the residual functional capacity [“RFC”] to perform medium work as defined in 20 C.F.R. § 404.1567(c) and 416.967(c) except he could frequently climb ramps and stairs, and could frequently stoop, but could never climb ladders, ropes, and scaffolds. (Tr. 20). The ALJ opined that the plaintiff could have no exposure to unprotected heights and no exposure to moving mechanical parts. (Tr. 20). He could perform simple, routine tasks, use judgment limited to simple, work-related decisions, have occasional contact with the public, and deal with changes in the work setting limited to simple, work-related decisions. (Tr. 20). The ALJ considered the plaintiff's history of back pain and neck pain, his depression and mood swings, his memory problems, his use of alcohol, and his work history. (Tr. 21; see also Tr. 23 (discussing the plaintiff's mental symptoms)). Additionally, the ALJ discussed “lumbar imaging” relating to the plaintiff's degenerative disc disease and his treatment history (Tr. 21-22), as well as his level of physical activity. (Tr. 22-23).

         The ALJ concluded that, through his date last insured, the plaintiff could perform the work of a hand packer, production worker, and production inspector. (Tr. 26, citing 20 C.F.R. §§ 404.1569, 404.1569(a), 416.969 and 416.969(a)). Accordingly, the ALJ concluded that the plaintiff was not under a disability at any time from December 15, 2012 through the date of the decision. (Tr. 26, citing 20 C.F.R. §§ 404.1520(g) and 416.920(g)).


         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 ...

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