United States District Court, D. Connecticut
RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE
DECISION OF THE COMMISSIONER AND ON THE DEFENDANT'S
MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE
M. SPECTOR, UNITED STATES MAGISTRATE JUDGE
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
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). 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).
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
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
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).
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.
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)).
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).
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).
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).
THE ALJ'S DECISION
the five-step evaluation process,  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).
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). 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.
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).
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)).
STANDARD OF REVIEW
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