United States District Court, D. Connecticut
RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE
PLEADINGS
Stefan
R. Underhill United States District Judge.
In the
instant Social Security appeal, Carrie Beth Gent
(“Gent”) 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. Because the decision
by the Administrative Law Judge (“ALJ”) was
supported by substantial evidence, I grant the
Commissioner's motion and deny Gent'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
Gent
applied for Social Security disability insurance benefits on
February 6, 2015, alleging that she had been disabled since
August 1, 2001. Later, she amended the alleged disability
onset date to December 10, 2007. ALJ Decision, R. at 11. Gent
identified her disabilities as, among other things,
“discectomy of the lumbar spine, anxiety, and
depression.” Compl., Doc. No. 1 at ¶ 4. The SSA
initially denied Gent's claim on June 15, 2015, finding
that although Gent's “condition result[ed] in some
limitations in [her] ability to perform work related
activities, . . . [her] condition [was] not severe enough to
keep [her] from working.” Disability Determination
Explanation (Initial), R. at 80. The SSA adhered to its
decision upon reconsideration on January 12, 2016.
Supplemental Security Income Notice of Reconsideration, R. at
144. Gent then requested a hearing before an ALJ, which was
held on May 24, 2017. Tr. of ALJ Hr'g, R. at 37. At the
hearing, ALJ Edward F. Sweeney questioned Gent and her
non-attorney representative about Gent's three pending
claims, which included applications for Disability Insurance
Benefits, Supplemental Security Income Benefits, and Disabled
Adult Child Benefits. Tr. of ALJ Hr'g, R. at 37. During
her testimony, Gent voluntarily withdrew both of her Title II
claims, leaving only the claim for Supplemental Security
Income. Id. at 41.
The ALJ
questioned Gent about her work history, her alleged ailments,
and her ability to perform daily working and living
functions. From 2002 to 2007, Gent testified that she worked
approximately 30 hours per week as a nanny. Id. at
44. She testified that she “took some classes in
college, ” but has not worked at all since 2007. Gent
also testified that she suffered from “excruciating
pain that . . . kept [her] from being able to stand or even
get out of bed.” Id. at 45. Gent testified
that she underwent back surgery in 2011; however, she could
not “sit, stand, or walk for any amount of time.”
Id. Gent explained that she experiences panic
attacks roughly twice a week, and that each episode lasts
approximately 30 minutes. During her testimony, Gent
described debilitating bouts of depression that last two or
three days. She also testified that she suffers from
incontinence, which limits her ability to “do
things.” When pressed, Gent clarified that she
“[doesn't] have an accident, but [she] could almost
have one almost every day, if [she] didn't make it to a
bathroom in time.” Id. at 51.
With
respect to her lifestyle, Gent reported that she drives every
day, shops for groceries, visits friends, uses a computer,
and spends time outside with her dogs. Id. at 43-49.
On occasion, Gent babysits for her friends. She also
testified that she requires “a lot of assistance with
household chores, especially laundry.” Id. at
48. Gent explained that she could only prepare “quick
snacks” because she could not stand for long periods in
front of a stove. Id. at 49.
The ALJ
also heard testimony from a vocational expert, Hank Lerner.
The ALJ presented Lerner with a hypothetical of a person who
“was limited to a range of work defined as light with
occasional . . . balancing, stooping, kneeling, crouching,
and crawling, ” and who could “understand,
remember, and carry out simple tasks in a setting with
occasional public contact and occasional contact with
co-workers.” Id. at 57-58. Lerner testified
that such a person could be employed in positions that
require light levels of exertion, such as “unskilled,
simple assembly positions.” Id. at 58. In the
second hypothetical, the ALJ asked Lerner to “further
assume this individual is limited to a range of work defined
as sedentary.” Id. at 59. In response, Lerner
listed various positions, classified as sedentary and
unskilled, available in the national economy. Id. at
59. Lerner explained that some positions would require
“some public contact” but the contact would be
“fleeting . . . you know, seconds.” Id.
at 59. Lerner further testified that Gent would be unable to
perform her past work as a nanny because the position of
child monitor is defined by the Dictionary of
Occupational Titles as a semi-skilled position requiring
medium exertion. Id. at 58. When the ALJ presented
the third hypothetical question to the vocational expert, he
asked whether there were jobs available for an individual who
required “periods of rest or absence or would otherwise
have unpredictable periods of time off task.”
Id. at 60. Lerner replied that if the hypothetical
person required periods of rest or absence “greater
than 10%” of a typical workday, then jobs did not exist
in the economy for that person. Id.
After
the hearing, on June 7, 2017, the ALJ issued an opinion in
which he found that Gent “ha[d] not been under a
disability within the meaning of the Social Security Act
since February 6, 2015, the date the application was
filed.” ALJ Decision, R. at 12. At the first step, the
ALJ found that Gent “ha[d] not engaged in substantial
gainful activity since February 6, 2015, the application
date.” Id. at 14. At the second step, the ALJ
found that Gent's “status-post discectomy of the
lumbar spine, anxiety, and depression” were
“severe impairments” that “significantly
limit[ed] [her] ability to perform basic work
activities.”[1] Id.
At the
third step, the ALJ determined that “[Gent's]
physical impairments, considered singly and in combination,
[did] not meet or medically equal the criteria of any
impairment listed in 1.04, 12.04, or 12.06.”
Id. at 15. The ALJ then assessed Gent's
residual functional capacity and found that she could
“perform light work . . . with occasional climbing of
ramps and stairs; never climbing of ladders, ropes, or
scaffolds; and occasional balancing, stooping, kneeling,
crouching, or crawling.” Id. at 17. The ALJ
also determined that Gent was “able to understand,
remember, and carry out simple tasks in a setting with
occasional public contact and occasional contact with
co-workers.” Id.
Although
Gent's residual functional capacity would not allow her
“to perform any past relevant work, ” ALJ Sweeney
determined that “there are jobs that exist in
significant numbers in the national economy that [Gent]
[could] perform.” Id. at 24. Relying on
“the testimony of the vocational expert, ” the
ALJ ruled that Gent “[was] capable of making a
successful adjustment to other work that exists in
significant numbers in the national economy, ” and that
“[a] finding of ‘not disabled' [was]
therefore appropriate.” Id. at 25.
Gent
requested a review of the ALJ's decision by the SSA's
Appeals Council on June 20, 2017. Request for Review of
Hearing Decision/Order, R. at 247. Finding that there was
“no reason . . . to review the [ALJ]'s decision,
” the Appeals Council “denied [Gent's]
request for review” on October 11, 2017. Notice of
Appeals Council Action, R. at 6. Gent then filed a complaint
in this Court on December 13, 2017, requesting that I reverse
the Commissioner's decision. Compl., Doc. No. 1.
III.
Discussion
On
appeal, Gent does not challenge the ALJ's findings that
she “ha[d] not engaged in substantial gainful activity
since February 6, 2015, ” ALJ Decision, R. at 14; that
she suffered from a number of “severe impairments,
” such as “status-post discectomy of the lumbar
spine, anxiety, and depression, ” id.; that
her impairments did not “meet or medically equal the
criteria of any impairment listed in 1.04, 12.04, or 12.06,
” id. at 15; and that “there are jobs
that exist in significant numbers in the national
economy” that a person with the residual functional
capacity found by the ALJ could perform, id. at 24.
Instead, she attacks the ALJ's residual functional
capacity finding at step four and the process by which the
ALJ arrived at it.
The
issues for my review are (1) whether the ALJ properly weighed
the medical opinion evidence, (2) and whether the ALJ
properly evaluated Gent's testimony. The first issue
appears partly to be a legal question subject to de novo
review-insofar as it turns on whether the ALJ properly
applied SSA regulations-and partly to be a factual question
where the ALJ's “findings must be given conclusive
effect so long as they are supported by substantial
evidence.” See Genier v. Astrue, 606 F.3d 46,
49 (2d Cir. 2010) (per curiam) (internal quotation marks
omitted). The second issue is a factual question that must be
affirmed if there is substantial evidence supporting the
ALJ's determination.
A.
Did the ALJ properly evaluate the medical opinion
evidence?
Gent
argues that the ALJ's decision improperly gave only
“partial weight” to opinions from Gent's
treating physicians in determining Gent's residual
functional capacity, and instead assigned “substantial
weight” to non-examining state agency physicians.
Pl.'s Mem. Supp. Mot. J. Pleadings, Doc. No. 18 at 2.
With respect to Gent's physical impairments, the ALJ gave
“partial weight” or “little weight”
to the opinions of Dr. Phyllis Grable-Esposito, Gent's
neurologist, because Dr. Grable-Esposito's conclusion
regarding the level of Gent's pain was not supported
“with objective medical evidence and she failed to
provide a functional assessment of [Gent's] abilities or
limitations.” ALJ Decision, R. at 21. Next, the ALJ
assigned “partial weight” or “little
weight” to the opinions of Dr. Thomas Rockland,
Gent's treating physician since March of 2014, because
Dr. Rockland's “opinions [were] inconsistent with
[Gent's] documented activities.” Id. The
ALJ then assigned “significant weight” to the
opinions of the State agency consultants because “their
findings [were] consistent with the medical evidence . . .
[and] the evidence submitted since they rendered their
opinions [did] not show that [Gent's] conditions [had]
significantly worsened.” Id. at 23. With
respect to Gent's mental impairments, the ALJ assigned
“partial weight” to the May 2016 opinion of
Advanced Practice Registered Nurse (“Nurse”)
Kitty Ansaldi because her opinion was only “partially
consistent with the medical evidence of record as a whole,
” which supported “some level of limitation in
[the] domains of functioning, [but did] not support the
moderate-to-marked level of limitation opined” by Nurse
Ansaldi. Id. at 22.
1.
Dr. Grable-Esposito and Dr. Thomas Rockland
Gent
contends that the ALJ should have given her treating
physicians' opinions “controlling weight”
under SSA regulations, Pl.'s Mem. Supp. Mot. J.
Pleadings, Doc. No. 18 at 5 (citing 20 C.F.R. §
416.927(c)(2)), or-if the ALJ “did not err by refusing
to adopt the physical limitations described by Drs.
Grable-Esposito and Rockland”- he should have weighed
the opinions “under all of the relevant factors
[listed] ¶ 20 C.F.R. § 416.927(c)(2)-(6).”
Id. at 6. The Commissioner responds that “the
[ALJ] is not compelled to adopt, or even to assign the most
weight to, a treating source opinion when there is sufficient
contradictory evidence.” Def.'s Mem. Supp. Mot.
Affirm, Doc. No. 22 at 4. After examining the record, I agree
with the Commissioner.
“The
treating physician rule provides that an ALJ should defer to
‘to the views of the physician who has engaged in the
primary treatment of the claimant, '” but need only
assign those opinions “controlling weight” if
they are “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and . . . not
inconsistent with the other substantial evidence in [the]
case record.” Cichocki v. Astrue, 534
Fed.Appx. 71, 74 (2d Cir. 2013) (summary order) (quoting
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003); 20 C.F.R. § 404.1527(c)(2)). When the ALJ
“do[es] not give the treating source's opinion
controlling weight, ” she must “apply the factors
listed” in SSA regulations, 20 C.F.R. §
404.1527(c)(2), including “(1) the frequency, length,
nature, and extent of treatment; (2) the amount of medical
evidence supporting the opinion; (3) the consistency of the
opinion with the remaining medical evidence; and (4) whether
the physician is a specialist.” Selian, 708
F.3d at 418. After considering those factors, the ALJ must
“comprehensively set forth [his] reasons for the weight
assigned to a treating physician's opinion, ”
Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004)
and provide “good reasons” for the weight
assigned. Burgess v. Astrue, 537 F.3d 117, 129 (2d
Cir. 2008).
The
Second Circuit has held that “not all expert opinions
rise to the level of evidence that is sufficiently
substantial to undermine the opinion of the treating
physician.” Id. at 128. For example, an
expert's opinion is “not substantial, i.e., not
reasonably capable of supporting the conclusion that the
claimant could work where the expert addressed only deficits
of which the claimant was not complaining, or where the
expert was a consulting physician who did not examine the
claimant ...