United States District Court, D. Connecticut
ON CROSS MOTIONS
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.
Joseph John Demars, 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 his
application for Disability Insurance Benefits
(“DIB”). Plaintiff has moved for an order
reversing the decision of the Commissioner, or in the
alternative, for remand [Doc. #27]. Defendant has filed a
motion for an order affirming the decision of the
Commissioner [Doc. #33]. Plaintiff has filed a “Notice
Regarding the Commissioner's Statements of Medical
Evidence” [Doc. #35]. This document contains some
argument, and the Court will construe it as plaintiff's
reasons set forth below, plaintiff's Motion to Reverse or
Remand [Doc. #27] is
DENIED, and defendant's Motion for an
Order Affirming the Decision of the Commissioner
[Doc. #33] is GRANTED.
filed an application for DIB on September 8, 2014,
alleging disability beginning January 6, 2004, when plaintiff
“slipped off a truck at work and twisted his right
knee.” Doc. #27-2 at 1; see Certified Transcript of the
Administrative Record, Doc. #17 and attachments, compiled on
May 13, 2018, (hereinafter “Tr.”) at 262-265.
Plaintiff's application was denied initially on October
1, 2014, see Tr. 102-111, and upon reconsideration on January
14, 2015, see Tr. 112-122.
August 11, 2016, plaintiff, represented by Attorney
Christopher W. Dilworth,  appeared and testified before
Administrative Law Judge (“ALJ”) Matthew
Kuperstein. See Tr. 61- 82, 85-89. Vocational Expert
(“VE”) Edmond J. Calandra testified
telephonically at the hearing. See Tr. 83-85, 90-99. On June
13, 2017, ALJ Martha Bower issued an unfavorable decision
pursuant to HALLEX I-2-8-40, as ALJ Kuperstein was
unavailable to issue a decision. See Tr. 26-39. On January 9,
2018, the Appeals Council denied plaintiff's request for
review, making the ALJ's June 13, 2017, 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 he 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 he is not
only unable to do his previous work but cannot, considering
his 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
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 he is
not, the Secretary next considers whether the claimant has a
“severe impairment” which significantly limits
his 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 him 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, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to
perform his 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.
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 his 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 DECSION
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 during the relevant
period, between his alleged onset date of January 6, 2004,
and his last insured date of March 31, 2009. See Tr. 28. At
step two, the ALJ found that plaintiff had the severe
impairments of “obesity, degenerative joint disease of
the right knee with a history of knee replacement, and
osteoarthritis of the left knee[.]” Tr. 29.
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. 29. The ALJ specifically
considered Listing 1.02 (dysfunction of a major
weight-bearing joint due to any cause). See Tr. 29. Before
moving on to step four, the ALJ found plaintiff had the RFC
to perform sedentary work as defined in 20 CFR 404.1567(a)
except: The claimant was limited to only occasional use of
foot controls with the right lower extremity, to only
occasional climbing of ramps or stairs, balancing, and
stooping, and to no climbing of ladders, ropes, or scaffolds,
kneeling, crouching, or crawling. Tr. 29.
four, the ALJ concluded that plaintiff is unable to perform
any of his past relevant work. See Tr. 37. At step five, and
after considering the testimony of the VE as well as
plaintiff's age, education, work experience, and RFC, the
ALJ found “there were jobs that existed in significant
numbers in the national economy that plaintiff could have
performed” during the relevant period. Tr. 37.
claims that the ALJ erred by:
1. Concluding that plaintiff's lower right extremity
impairment did not meet Listings 1.02 and/or 1.03, see Doc.
#27-1 at 3-6;
2. Failing to properly apply the treating physician rule to
the May 13, 2016, medical opinion of Dr. Vincent Williams,
see Id. at 9-12; and
3. Failing to properly apply SSR 02-1p, relating to the
evaluation of plaintiff's obesity at step three and
subsequent steps, see Id. at 6-9.
turning to plaintiff's arguments, the Court pauses
briefly to address plaintiff's Workers' Compensation
claim, and the impact that claim had on the development of
plaintiff's medical records. Plaintiff alleges that his
disability began on January 6, 2004, when he slipped at work
and twisted his right knee. See Tr. 26; Doc. #27-2 at 1. At
the time, plaintiff was working as a cement truck driver, and
needed use of his right leg to operate the truck's foot
pedals continuously. See Tr. 62. The ALJ expressly
acknowledged in her RFC determination that plaintiff, during
the relevant period, “was limited to only occasional
use of foot ...