Didio v. Berryhill

          RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS

          Stefan R. Underhill United States District Judge

         In this Social Security appeal, Anne Marie Didio (“Didio”) moves to reverse the decision by the Social Security Administration (“SSA”) denying her disability insurance benefits. The Commissioner of Social Security moves to affirm the decision. I find that the Administrative Law Judge (“ALJ”) did not sufficiently consider the opinions of Didio's treating physicians and mental health providers. Therefore, remand is warranted. Accordingly, I grant Didio's motion and deny the Commissioner'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 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. (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 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

         Anne Marie Didio applied for Social Security disability insurance benefits on April 22, 2014, alleging that she had been disabled since August 10, 2013. ALJ Decision, R. at 66. Didio filed her disability claim based on her history of bipolar disorder and bilateral knee replacements. See Disability Determination Explanation, R. at 155.

         The SSA initially denied Didio's claim on August 4, 2014, finding that although Didio's “condition results in some limitations in [her] ability to perform work related activities . . . . We have determined that your condition is not severe enough to keep you from working.” Id. at 165. In the agency's view, Didio was not disabled. Id. Didio sought reconsideration, but the SSA adhered to its initial decision on November 25, 2014. Disability Determination Explanation (Reconsideration), R. at 184.

         Didio requested a hearing before an ALJ, which was held on February 4, 2016. Tr. of ALJ Hr'g, R. at 87. At the hearing, ALJ Matthew Kuperstein questioned Didio about her employment history, specifically asking her how much weight she lifted at various prior jobs, what kinds of tasks her positions entailed, and her reasons for ever being terminated.^[1] Id. at 100-01. Didio testified that due to her mental illness she has difficulty retaining employment. Id. at 102. “I can't work because I process my thoughts very slowly . . . . I can't multi-task, my concentration isn't that good, I jump from one thing to another [and] I can't focus on what I'm doing.” Id. The ALJ also questioned Didio about her workout regime, her medications and their side effects, and her daily activities. Id. at 103-08. Didio acknowledged that she wants to work full-time but “[e]very time I try to get myself on the right track, it just falls apart on me.” Id. at 105.

         The ALJ then called a vocational expert, Jeffrey Joy. Id. at 115. The ALJ asked Joy to “assume a hypothetical individual” with Didio's past work history. Id. at 123. He asked Joy to further assume that the individual was limited to light exertional work “that involves only a frequent climbing of ramps or chairs, and only occasional climbing of ladders, ropes or scaffolds, kneeling, crouching or crawling.” Id. “The individual would have a further limitation to, work that could be learned within 30 days and was [] of a routine or repetitive in nature.” Id. The work would be limited to “a low demand environment without [] strict time or productivity requirements.” Id. Finally, the work would not require “any constant, direct public contact, or [] team work. The individual would be eluded to work with supervisors and co-workers for routine work purposes where the interactions are [] brief and superficial.” Id. at 124.

         Joy opined that “an individual with these limitations” would not be able to perform work previously performed by Didio in the national economy. Id. Joy later stated however, that Didio could perform other “light exertional level” occupations under the same limitations described above. Id. Those occupations included “housekeeper, . . . mailroom clerk, . . .[or] a laundry and linen folder.” Id.

         Didio's counsel then examined the vocational expert. She asked Joy to consider a hypothetical person with the restrictions already provided by the ALJ, who also “about 50 percent of the time depending on the situation, is not able to carry out very simple instructions.” Id. at 128. Joy testified that there would be no work for such a person in the national economy. See id.

         On May 19, 2016, the ALJ issued an opinion in which he stated that “[a]fter considering the record as a whole, the undersigned is unable to find sufficient evidence to support [Didio's] allegations of disabling mental and physical impairments.” ALJ Decision, R. at 72. Thus, Didio “ha[d] not been under a disability defined in the Social Security Act, from August 10, 2013, through the date of this decision.” Id. at 80. At the first step, the ALJ found that Didio “ha[d] not engaged in substantial gainful activity since August 10, 2013, the alleged onset date.” Id. at 68. At the second step, the ALJ found that Didio's “obesity, bipolar disorder; obsessive-compulsive disorder (OCD), and history of bilateral knee replacement” were “severe” impairments that “more than minimally affected [Didio's] ability to perform basic work-related activities.”^[2] Id. at 69. At the third step, the ALJ determined that Didio's impairments were not per se disabling because Didio “d[id] not have an impairment or combination of impairments that me[t] or medically equal[ed] the severity of one of the listed impairments.”^[3] Id.

         The ALJ then assessed Didio's residual functional capacity (“RFC”), and found that she could “perform light work . . . except that [she was] limited to frequent climbing of ramps or stairs, but no more than occasional climbing of ladders, ropes, or scaffolds, kneeling, crouching or crawling, ” and was “further limited to work that c[ould] be learned within 30 days and [was] routine and repetitive in nature.” Id. at 71. In addition, she was limited to “to work that c[ould] be performed in a low demand environment without strict time or productivity requirements, ” and also limited to “work that does not require constant, direct public contact or teamwork, but she c[ould] have brief and superficial interactions with supervisors and coworkers for routine work purposes.” Id. Lastly, the ALJ ruled that Didio was “limited to work that requires no more than minor work adjustments in a stable setting and routine.” Id.

         Although Didio's residual functional capacity rendered her “unable to perform any past relevant work, ” the ALJ determined that “[c]onsidering [Didio's] age, education, [and] work experience . . . there are jobs that exist in significant numbers in the national economy that [Didio] can perform, ” given her residual functional capacity. Id. at 78. Therefore, the ALJ ruled that Didio “ha[d] not been under a disability, as defined in the [SSA], from August 10, 2013, through the date of this decision.” Id. at 80.

         Didio requested a review of the ALJ's decision by the SSA's Appeals Council on May 27, 2016. Request for Review of Hearing Decision/Order, R. at 279. Finding that there was “no reason . . . to review the [ALJ]'s decision, ” the Appeals Counsel “denied [Didio's] request for review” on July 27, 2017. Notice of Appeals Council Action, R. at 1. Didio filed a complaint with this Court on September 13, 2017, requesting that I reverse the Commissioner's decision, or remand for further administrative proceedings. See Compl., Doc. No. 1.

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