Chesmar v. Berryhill

          RULING ON CROSS MOTIONS

          HON. SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Stephanie Emily Chesmar, brings this appeal pursuant to §205(g) of the Social Security Act (“the Act”), as amended, seeking review of a final decision by the Acting Commissioner of the Social Security Administration (the “Commissioner”) denying her application for Supplemental Security Income (“SSI”). Plaintiff has moved for an order reversing the decision of the Commissioner, or in the alternative, for remand [Doc. #25]. Defendant has filed a motion for an order affirming the decision of the Commissioner [Doc. #29].

         For the reasons set forth below, plaintiff's Motion to Reverse or Remand [Doc. #25] is GRANTED, to the extent that it seeks remand, and defendant's Motion for an Order Affirming the Decision of the Commissioner [Doc. #29] is DENIED.

         I. PROCEDURAL HISTORY^[1]

         Plaintiff filed an application for SSI on March 11, 2014, ^[2]alleging disability beginning August 17, 2012. See Certified Transcript of the Administrative Record, Doc. #17 and attachments, compiled on April 14, 2018, (hereinafter “Tr.”) at 297-305. Plaintiff's application was denied initially on July 9, 2014, see Tr. 236-240, and upon reconsideration on December 24, 2014, see Tr. 199-209.

         On August 11, 2016, plaintiff, represented by Attorney Meryl Anne Spat, appeared and testified before Administrative Law Judge (“ALJ”) Bruce H. Zwecker. See Tr. 133-186. Vocational Expert (“VE”) Courtney Olds testified at the hearing. See Tr. 180-185. Elizabeth Montagno also testified.^[3] See Tr. 161-179. Plaintiff has resided with Ms. Montagno since 2013 when plaintiff's adoptive mother, Ms. Montagno's sister, passed away. See Tr. 161. On September 15, 2016, the ALJ issued an unfavorable decision. See Tr. 21-35. On December 18, 2017, the Appeals Council denied plaintiff's request for review, making the ALJ's September 15, 2016, decision the final decision of the Commissioner. See Tr. 1-7. The case is now ripe for review under 42 U.S.C. §405(g).

         II. STANDARD OF REVIEW

         The 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). Second, the court must decide whether the determination is supported by substantial evidence. See Id. 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The reviewing court's responsibility is to ensure that a claim has been fairly evaluated by the ALJ. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983).

         The Court does not reach the second stage of review - evaluating whether substantial evidence supports the ALJ's conclusion - if the Court determines that the ALJ failed to apply the law correctly. See Norman v. Astrue, 912 F.Supp.2d 33, 70 (S.D.N.Y. 2012) (“The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence.”). “Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have [his] disability determination made according to the correct legal principles.” Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).

         “[T]he crucial factors in any determination must be set forth with sufficient specificity to enable [a reviewing court] to decide whether the determination is supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). The ALJ is free to accept or reject the testimony of any witness, but a “finding that the witness is not credible must nevertheless be set forth with sufficient specificity to permit intelligible plenary review of the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988). It is well established that “an ALJ's credibility determination is generally entitled to deference on appeal.” Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013); see also Kessler v. Colvin, 48 F.Supp.3d 578, 595 (S.D.N.Y. 2014) (“A federal court must afford great deference to the ALJ's credibility finding, since the ALJ had the opportunity to observe the claimant's demeanor while the claimant was testifying.” (citation and internal quotation marks omitted)); Pietrunti v. Dir., Office of Workers' Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997) (“Credibility findings of an ALJ are entitled to great deference and therefore can be reversed only if they are patently unreasonable.” (citation and internal quotation marks omitted)).

         It is important to note that in reviewing the ALJ's decision, this Court's role is not to start from scratch. “In reviewing a final decision of the SSA, this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). “[W]hether there is substantial evidence supporting the appellant's view is not the question here; rather, we must decide whether substantial evidence supports the ALJ's decision.” Bonet ex rel. T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013).

         III. SSA LEGAL STANDARD

         Under the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits. 42 U.S.C. §423(a)(1).

         To be considered disabled under the Act and therefore entitled to benefits, plaintiff must demonstrate that she is unable to work after a date specified “by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A). Such impairment or impairments must be “of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §423(d)(2)(A); see also 20 C.F.R. §404.1520(c) (requiring that the impairment “significantly limit[] ... physical or mental ability to do basic work activities[]” to be considered “severe”).^[4]

         There is a familiar five-step analysis used to determine if a person is disabled. See 20 C.F.R. §404.1520. In the Second Circuit, the test is described as follows:

First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If [she] is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits [her] physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider [her] disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). If and only if the claimant does not have a listed impairment, the Commissioner engages in the fourth and fifth steps:

Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, [she] has the residual functional capacity to perform [her] past work. Finally, if the claimant is unable to perform [her] past work, the Secretary then determines whether there is other work which the claimant could perform. Under the cases previously discussed, the claimant bears the burden of proof as to the first four steps, while the Secretary must prove the final one.

Id.

         “Through the fourth step, the claimant carries the burdens of production and persuasion, but if the analysis proceeds to the fifth step, there is a limited shift in the burden of proof and the Commissioner is obligated to demonstrate that jobs exist in the national or local economies that the claimant can perform given [her] residual functional capacity.” Gonzalez ex rel. Guzman v. Dep't of Health and Human Serv., 360 Fed.Appx. 240, 243 (2d Cir. 2010) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003)); Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)). “Residual functional capacity” (“RFC”) is what a person is still capable of doing despite limitations resulting from her physical and mental impairments. See 20 C.F.R. §404.1545(a)(1).

         “In assessing disability, factors to be considered are (1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). “[E]ligibility for benefits is to be determined in light of the fact that the Social Security Act is a remedial statute to be broadly construed and liberally applied.” Id. (citation and internal quotation marks omitted).

         II. THE ALJ'S Decision

         Following the above-described five-step evaluation process, the ALJ concluded that plaintiff was not disabled under the Act. See Tr. 35. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the application date.^[5] See Tr. 23. At step two, the ALJ found that plaintiff had the severe impairments of “affective disorder and learning disorder[.]” Tr. 23. The ALJ expressly concluded that plaintiff's impairments of obesity, vertigo, syncope, bulimia nervosa in remission, and alcohol abuse in remission, were non-severe. See Tr. 23-24.

         At step three, the ALJ found that plaintiff's impairments, either alone or in combination, did not meet or medically equal the severity of any of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. See Tr. 24. The ALJ specifically considered the paragraph B and paragraph C criteria of Listings 12.02 (neurocognitive disorders) and 12.04 (bipolar and related disorders). See Tr. 24-25. Before moving on to step four, the ALJ found plaintiff had the RFC

to perform a full range of work at all exertional levels but with the following nonexertional limitations: she is limited to performing routine, repetitive work, requiring her to understand and remember only simple instructions and carry out only simple tasks. The claimant can only work in an environment involving minimal changes, minimal decision-making, and minimal use of judged [sic]. She can only have occasional interaction with coworkers, supervisors, and the public.

         Tr. 26.

         At step four, the ALJ concluded that plaintiff had no past relevant work. See Tr. 33. At step five, after considering the testimony of the VE as well as plaintiff's age, education, work experience, and RFC, the ALJ found that plaintiff is “capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” See Tr. 34.

         III. Discussion

         Plaintiff seeks reversal or remand for consideration of:

1. Dr. Kaplan's February 8, 2018, report, covering treatment of plaintiff from October 31, 2017, to February 8, 2018, submitted after the Appeals Council issued its ruling, see Doc. #25-1 at 4-9; and

2. A report from the Bureau of Rehabilitation Services, dated March 2, 2017, which the Appeals Council determined did not relate to the period under consideration by the ALJ, see Id. at 9-11.

         Plaintiff further asserts that the ALJ committed the following reversible errors:

1. The ALJ failed to consider Listing 12.05(C) (intellectual disorder) at step ...