United States District Court, D. Connecticut
RULING ON CROSS MOTIONS
SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE
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].
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
filed an application for SSI on March 11, 2014,
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
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. 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).
STANDARD OF REVIEW
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).
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).
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)).
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).
SSA LEGAL STANDARD
the Social Security Act, every individual who is under a
disability is entitled to disability insurance benefits. 42
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
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
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.
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).
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).
THE ALJ'S Decision
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. 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.
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.
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.
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.
further asserts that the ALJ committed the following
1. The ALJ failed to consider Listing 12.05(C) (intellectual
disorder) at step ...