Graf v. Berryhill

          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. ...