United States District Court, D. Connecticut
RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE
PLEADINGS
STEFAN
R. UNDERHILL, UNITED STATES DISTRICT JUDGE
In this
Social Security appeal, Myrna Graf moves to reverse the
decision by the Social Security Administration
(“SSA”) denying her claim for disability
insurance benefits. The Commissioner of Social Security moves
to affirm the decision. I conclude that Graf's arguments
for reversal lack merit and that the Administrative Law Judge
(“ALJ”)'s decision that Graf could perform
medium work was supported by substantial evidence. Therefore,
I grant the Commissioner's motion and deny Graf's.
I.
Standard of Review
The SSA
follows a five-step process to evaluate disability claims.
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)
(per curiam). First, the Commissioner determines whether the
claimant currently engages in “substantial gainful
activity.” Greek v. Colvin, 802 F.3d 370, 373
n.2 (2d Cir. 2015) (per curiam) (citing 20 C.F.R. §
404.1520(b)). Second, if the claimant is not working, the
Commissioner determines whether the claimant has a
“‘severe' impairment, ” i.e., an
impairment that limits his or her ability to do work-related
activities (physical or mental). Id. (citing 20
C.F.R. §§ 404.1520(c), 404.1521). Third, if the
claimant does not have a severe impairment, the Commissioner
determines whether the impairment is considered “per se
disabling” under SSA regulations. Id. (citing
20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). If
the impairment is not per se disabling, then, before
proceeding to step four, the Commissioner determines the
claimant's “residual functional capacity”
based on “all the relevant medical and other evidence
of record.” Id. (citing 20 C.F.R. §§
404.1520(a)(4), (e), 404.1545(a)). “Residual functional
capacity” is defined as “what the claimant can
still do despite the limitations imposed by his [or her]
impairment.” Id. Fourth, the Commissioner
decides whether the claimant's residual functional
capacity allows him or her to return to “past relevant
work.” Id. (citing 20 C.F.R. §§
404.1520(e), (f), 404.1560(b)). Fifth, if the claimant cannot
perform past relevant work, the Commissioner determines,
“based on the claimant's residual functional
capacity, ” whether the claimant can do “other
work existing in significant numbers in the national
economy.” Id. (citing 20 C.F.R. §§
404.1520(g), 404.1560(b)). The process is “sequential,
” meaning that a petitioner will be judged disabled
only if he or she satisfies all five criteria. See
id.
The
claimant bears the ultimate burden to prove that he or she
was disabled “throughout the period for which benefits
are sought, ” as well as the burden of proof in the
first four steps of the inquiry. Id. at 374 (citing
20 C.F.R. § 404.1512(a)); Selian, 708 F.3d at
418. If the claimant passes the first four steps, however,
there is a “limited burden shift” to the
Commissioner at step five. Poupore v. Astrue, 566
F.3d 303, 306 (2d Cir. 2009) (per curiam). At step five, the
Commissioner need only show that “there is work in the
national economy that the claimant can do; he [or she] need
not provide additional evidence of the claimant's
residual functional capacity.” Id.
In
reviewing a decision by the Commissioner, I conduct a
“plenary review” of the administrative record but
do not decide de novo whether a claimant is
disabled. Brault v. Soc. Sec. Admin., Comm'r,
683 F.3d 443, 447 (2d Cir. 2012) (per curiam); see
Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)
(per curiam) (“[T]he reviewing court is required to
examine the entire record, including contradictory evidence
and evidence from which conflicting inferences can be
drawn.”). I may reverse the Commissioner's decision
“only if it is based upon legal error or if the factual
findings are not supported by substantial evidence in the
record as a whole.” Greek, 802 F.3d at 374-75.
The “substantial evidence” standard is
“very deferential, ” but it requires “more
than a mere scintilla.” Brault, 683 F.3d at
447-48. Rather, substantial evidence means “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Greek, 802
F.3d at 375. Unless the Commissioner relied on an incorrect
interpretation of the law, “[i]f there is substantial
evidence to support the determination, it must be
upheld.” Selian, 708 F.3d at 417.
II.
Facts
Myrna
Graf filed an application for Supplemental Security Income
benefits on July 2, 2015. ALJ Decision, R. at 22. In her
application, Graf alleged a disability onset date of December
1, 2014. At the time of the alleged disability onset, Graf
was 56 years old. Graf identified her disability as
“fractured right wrist - cannot hold writing utensils;
right side and left foot injury; condritis in left hand,
wrist, arm, and shoulder; constant pain in limbs and hands;
twisted right ankle and knee pain; difficulty on right ankle
cannot bend; cannot sleep; back pain; nerve tingling on
head.” Disability Determination Explanation, R. at
1040. The SSA initially denied her claim on September 11,
2015, and again on reconsideration on January 14, 2016,
finding that “[Graf's] condition [was] currently
severe…but it [was] expected to improve and [would]
not result in significant limitations in [her] ability to
perform basic work activities.” Disability
Determination Explanation, R. at 1047. The SSA also noted
that Graf's condition was “not expected to remain
severe enough for 12 months in a row to keep [her] from
working.” Id. In making that determination,
the SSA noted consideration of medical evidence, Graf's
statements, and how her condition affected her ability to
work. Id.
Graf
requested a hearing before an Administrative Law Judge
(“ALJ”) on February 1, 2016, and a video hearing
was held before ALJ Martha Bower on January 23, 2017. ALJ
Decision, R. at 22. At the hearing, the ALJ questioned Graf
about work history, her conditions, treatment history, and
ability to perform daily working and living functions. Tr. of
ALJ Hr'g, R. at 1019-1034.
Graf
responded that it had become “very, very
difficult” to prepare a simple meal. Id. at
1025. Further, she testified that her “whole body [was]
in different kinds of pain” except for her hair.
Id. at 1026. In addition, she had “a feeling
that [her] foot [was] being cut in half” and that her
boot brace alleviated that pain. Id. at 27. She also
testified that she felt like a dog was biting her when she
was not wearing the boot. Id. She felt like her
“bones [were] being cut off” and that her skin
felt like it was burning. Id. at 1027. She also
testified that she could no longer change her sheets,
worship, or walk to the park. Id. at 1029. She
further testified that she could no longer grip a pot using
her right hand or use that hand to prepare a simple meal such
as pasta, and that her left hand would become swollen with
minimal use. Id. at 1033. She also testified that
she had been experiencing coughing attacks and had sprained
her hand. Id. at 1034.
The ALJ
then heard testimony from Vocational Counselor Larry Takki.
The ALJ asked Takki to consider a hypothetical individual of
the same age, education, and experience as Graf, who was
limited to performing work with the following limitations:
could occasionally push and pull bilateral hand controls and
occasionally climb stairs, ramps, ropes, ladders, and
scaffolds. Tr. of ALJ Hr'g, R. at 1035. The ALJ asked
Takki whether that hypothetical individual could perform any
medium jobs with those limitations, and he testified that
industrial cleaner and dining room attendant were the two
jobs that this hypothetical individual could perform.
Id. at 1035. The ALJ then asked Takki whether an
additional limitation in concentration, persistence, or pace
limiting them to the ability to understand, remember, and
carry out simple tasks would affect Takki's answer.
Id. Takki testified that those two jobs would still
be viable options. Id. Takki also testified that a
hypothetical person who was off task 5% of the work day, and
additionally if that person needed to miss one work day each
month on an unplanned basis, would still be employable
according to his professional experience. Id. He
also testified that if a hypothetical person had to arrive
late or leave early one day each month, she would still be
employable. Id. He stated that, according to his
professional experience, someone arriving approximately half
an hour or an hour late twice a month would cause a person to
lose her job after a few months. Id.
The ALJ
then changed the hypothetical, adding that the hypothetical
individual: would have to avoid concentrated exposure to
pulmonary irritants. Id. Takki testified that those
two jobs could still be performed in that scenario.
Id.
On
March 8, 2017, the ALJ issued an opinion in which she found
that Graf was not “under a disability, as defined in
the Social Security Act, since July 2, 2015.” ALJ
Decision, R. at 34. At the first step, the ALJ found that
Graf “ha[d] not engaged in substantial gainful activity
since July 2, 2015, the application date.” Id.
at 24. At the second step, the ALJ determined that Graf's
impairments of “status post right scaphoid fracture,
left lateral epicondylitis, degenerative joint disease,
degenerative disc disease, osteoarthritis, asthma,
concussion, and fibromyalgia” were severe impairments
that “had more than a minimal effect on [Graf's]
ability to perform basic work activities for a continuous
period of 12 months.” Id.
At the
third step, the ALJ determined that Graf “[did] not
have an impairment or combination of impairments that [met]
or medically equal[ed] the severity of one of the listed
impairments.” ALJ Decision, R. at 25. In making that
finding, the ALJ considered whether any of Graf's
impairments met or medically equaled listing section 1.02
(dysfunction of the joints due to any cause). Id. at
25. The ALJ found that the impairments did not, because the
record did “not show an inability perform fine and
gross movements effectively.” Id. The ALJ also
determined that Graf's impairments did not meet or
medically equal listing section 1.04 (disorders of the
spine). Id. The ALJ found that they did not, because
the “available objective medical findings…[did]
not show evidence of nerve root compression, spinal
arachnoiditis, or lumbar spinal stenosis with
pseudoclaudication.” Id. at 25-26. The ALJ
considered listing section 1.07 (fracture of an upper
extremity), but found that there was “no evidence to
suggest nonunion of [Graf's] scaphoid fracture.”
Id. at 26. The ALJ considered listing section 3.03
(asthma), but did not find asthma. Id. The ALJ also
evaluated listing section 11.18 (traumatic brain injury), but
found that “[t]he limited evidence regarding
[Graf's] concussion [did] not satisfy the requirements of
listing 11.18.” Id.
The ALJ
then assessed Graf's residual functional capacity, and
found that she could “perform medium work” with
certain limitations. Id. at 27. The limitations were
that Graf: could occasionally push and pull bilateral hand
controls and occasionally climb stairs, ramps, ropes,
ladders, and scaffolds; and that she should avoid
concentrated exposures to pulmonary irritants. Id.
The ALJ
determined that Graf's “medically determinable
impairments could reasonably be expected to cause the alleged
symptoms.” ALJ Decision, R. at 28. However, the ALJ
decided that “[Graf's] statements concerning the
intensity, persistence[, ] and limiting effects of these
symptoms [were] not entirely consistent with the medical
evidence and other evidence in the record.”
Id.
At the
fourth step, the ALJ determined that Graf has no past
relevant work. Id. at 33. At the fifth step, the ALJ
determined that, based on Graf's age, education, work
experience, and residual functional capacity, “there
[were] jobs that exist[ed] in significant numbers in the
national economy that [Graf could] perform.”
Id. Because the ALJ found that Graf was capable of
making a successful adjustment to other work, she concluded
that “a finding of ‘not disabled' [was]
therefore appropriate” and denied Graf's request
for disability benefits. Id. at 34.
Graf
requested a review of the ALJ's decision by the SSA's
Appeals Council on March 8, 2017. Notice of Appeals Council
Action, R. at 1. The SSA Appeals Council “found no
reason . . . to review the Administrative Law Judge's
decision, ” and denied Graf's request for review.
Id. Graf then filed a complaint before this court
urging reversal of the Commissioner's decision on January
17, 2018. Compl., Doc. No. 1. Graf filed a Motion to Reverse
on June 18, 2018. Mot. Rev., Doc. No. ...