Chmielewski v. Berryhill

          RULING ON PENDING MOTIONS

          WILLIAM I. GARFINKEL UNITED STATES MAGISTRATE JUDGE

         Plaintiff Laurie A. Chmielewski has filed this appeal following the denial of her application for Title XVI supplemental security income benefits (“SSI”). It is brought pursuant to 42 U.S.C. § 405(g).^[1] Plaintiff now moves for an order reversing the decision of the Commissioner of the Social Security Administration (“the Commissioner”), or in the alternative remanding the matter for rehearing. [Doc. # 22]. The Commissioner has responded with a motion to affirm her decision. [Doc. # 23]. After careful consideration of the arguments raised by the parties, and thorough review of the administrative record, the Court reverses the decision of the Commissioner and remands the matter for additional proceedings consistent with this Ruling.

         LEGAL STANDARD

         “A district court reviewing a final . . . decision [of the Commissioner of Social Security] pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842 (2d Cir. 1981). “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, [are] conclusive . . . .” 42 U.S.C. § 405(g). Accordingly, the district court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. Id.; Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's function is to first ascertain whether the Commissioner applied the correct legal principles in reaching her conclusion, and then whether the decision is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Therefore, absent legal error, a decision of the Commissioner cannot be set aside if it is supported by substantial evidence. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It must be “more than a scintilla or touch of proof here and there in the record.” Williams, 859 F.2d at 258. If the Commissioner's decision is supported by substantial evidence, that decision will be sustained, even where there may also be substantial evidence to support the plaintiff's contrary position. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).

         BACKGROUND

         1. Facts

         Plaintiff filed her SSI application on April 9, 2014, alleging disability onset date of October 18, 2012. Her claim was denied initially and upon reconsideration. Plaintiff then requested a hearing. A hearing was held before Administrative Law Judge Eskunder Boyd (the “ALJ”) on September 13, 2016. Plaintiff, who was not represented by counsel at the hearing, provided testimony. A vocational expert also testified. On November 1, 2016, the ALJ issued a decision denying Plaintiff's claim. Plaintiff timely sought review of the ALJ's decision by the Appeals Council. On November 1, 2017, the Appeals Council denied review, making the ALJ's decision the final determination of the Commissioner. This action followed.

         Plaintiff was forty-six years of age on the alleged disability onset date. She has a high school education and has no past relevant work experience. Plaintiff's complete medical history is set forth in the Joint Stipulation of Facts filed by the parties. [Doc. # 22-1]. The Court adopts this stipulation and incorporates it by reference herein.

         2. The ALJ's Decision

         The Commissioner must follow a sequential evaluation process for assessing disability claims. The five steps of this process are as follows: (1) the Commissioner considers whether the claimant is currently engaged in substantial gainful activity; (2) if not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities; (3) if the claimant has a “severe impairment, ” the Commissioner must ask whether, based solely on the medical evidence, the claimant has an impairment which “meets or equals” an impairment listed in Appendix 1 of the regulations (the Listings). If so, and it meets the durational requirements, the Commissioner will consider the claimant disabled, without considering vocational factors such as age, education, and work experience; (4) if not, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has the residual functional capacity to perform his or her past work; and (5) if the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work in the national economy which the claimant can perform. 20 C.F.R. § 416.920(a)(4)(i)-(v). The claimant bears the burden of proof on the first four steps, while the Commissioner bears the burden of proof on the final step. McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014).

         In this case, at Step One, the ALJ found that Plaintiff has not engaged in substantial gainful activity since April 9, 2014, the application date. (R. 19). At Step Two, the ALJ found Plaintiff has the following severe impairments: plantar fasciitis; obesity; rotator cuff tear; and anxiety disorder. (R. 18-19.). At Step Three, the ALJ found that these impairments, alone or in combination, do not meet or equal the severity of one of the listed impairments. (R. 19). The ALJ then found that Plaintiff retains the following residual functional capacity^[2]:

Plaintiff can perform light work except she is able to stand and/or walk two to four hours and sit for six hours; she requires a sit/stand option defined as sitting for 30 minutes, alternate to standing position for three minutes, and then resume sitting. She may never climb ladders, ropes, scaffolds, or stairs but may occasionally climb ramps, and may occasionally balance, stoop and crouch with no ability to kneel or crawl. She may frequently handle and finger, but can perform no overhead reaching with the right upper extremity. She should not work with exposure to temperature extremes. She is able to perform simple, routine, repetitive tasks and is able to sustain concentration, persistence, or pace for two-hour segments with brief and superficial interaction with coworkers and no interaction with the public.

(R. 21). At Step Four, the ALJ found Plaintiff has no past relevant work. (R. 26). Finally, at Step Five, the ALJ relied on the testimony of the vocational expert to conclude that there are jobs in significant numbers in the national economy Plaintiff can perform. (R. 26). Accordingly, the ALJ found Plaintiff to be not disabled.

         DISCUSSION

         When Plaintiff arrived for the September 13, 2016 hearing, she was unaccompanied by an attorney. The ALJ acknowledged Plaintiff was unrepresented, and the following dialogue occurred:

ALJ: Now before we go forward, Ms. Chmielewski, I do have to note for the record that you do you not have a ...