United States District Court, D. Connecticut
RULING ON CROSS MOTIONS
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
Estela Bautista (“plaintiff”), brings this appeal
under §205(g) of the Social Security Act (the
“Act”), as amended, 42 U.S.C. §405(g),
seeking review of a final decision by the Commissioner of the
Social Security Administration (the
“Commissioner” or “defendant”)
denying her applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) for the period of August 31, 2014,
through May 22, 2017, and granting her applications for
benefits from May 23, 2017, forward. Plaintiff has moved for
an order reversing that portion of the Commissioner's
decision denying her benefits. [Doc. #18]. Defendant has
filed a cross-motion seeking an order affirming the decision
of the Commissioner. [Doc. #20].
reasons set forth below, plaintiff's Motion for Order
Reversing the Commissioner's Decision [Doc.
#18] is DENIED, and defendant's
Motion for an Order Affirming the Decision of the
Commissioner [Doc. #20] is
filed concurrent applications for DIB and SSI on November 25,
2014, alleging disability beginning March 14,
2012.See Certified Transcript of the
Administrative Record, Doc. #12, compiled on August 29, 2018,
(hereinafter “Tr.”) at 232-42. Plaintiff's
applications were denied initially on August 11, 2015, see
Tr. 143-52, and upon reconsideration on January 21, 2016. See
10, 2017, plaintiff, represented by Attorney Gary Huebner,
appeared and testified at a hearing before Administrative Law
Judge (“ALJ”) Martha Bower. See generally Tr.
40-63. Vocational Expert (“VE”) Larry
Takki also appeared and testified at the administrative
hearing. See Tr. 48-49; Tr. 57-62; see also Tr. 400-01. On
June 15, 2017, the ALJ issued a partially favorable decision,
finding that plaintiff became disabled within the meaning of
the law as of May 23, 2017. See Tr. 17-39. On May 24, 2018,
the Appeals Council denied plaintiff's request for review
of that portion of the ALJ's decision denying her
benefits, thereby making the ALJ's June 15, 2017,
decision the final decision of the Commissioner. See Tr.
4-11. The case is now ripe for review under 42 U.S.C.
timely filed this action for review and now moves to reverse
the portion of the Commissioner's decision denying her
applications for DIB and SSI for the period of August 31,
2014, through May 22, 2017. [Doc. #18]. On appeal, plaintiff
1. The ALJ failed to evaluate permanent restrictions assessed
by Dr. Abella;
2. The ALJ failed to properly weigh the opinion of Dr.
3. The ALJ improperly relied on the opinions of the state
reviewing, non-examining physicians.
See generally Doc. #18-1 at 3-7. For the reasons
stated below, the Court finds that ALJ Bower did not err as
contended, and that her decision is supported by substantial
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. Second, the Court must decide
whether the determination is supported by substantial
evidence. See Balsamo v. Chater, 142 F.3d 75, 79 (2d
Cir. 1998) (citation omitted). 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) (citation omitted).
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.” (citing Tejada v.
Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999))).
“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 her 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) (alterations added) (citing Treadwell
v. Schweiker, 698 F.2d 137, 142 (2d Cir. 1983)). 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) (citing Carroll v. Sec. Health and
Human Servs., 705 F.2d 638, 643 (2d Cir. 1983)).
“Moreover, when a finding is potentially dispositive on
the issue of disability, there must be enough discussion to
enable a reviewing court to determine whether substantial
evidence exists to support that finding.” Johnston
v. Colvin, No. 3:13CV00073(JCH), 2014 WL 1304715, at *6
(D. Conn. Mar. 31, 2014) (citing Peoples v. Shalala,
No. 92CV4113, 1994 WL 621922, at *4 (N.D.Ill. Nov. 4,
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) (quoting
Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507
(2d Cir. 2009)). “[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) (summary
order) (citations omitted).
some of the Regulations cited in this decision, particularly
those applicable to the review of medical source evidence,
were amended effective March 27, 2017. Those “new
regulations apply only to claims filed on or after March 27,
2017.” Smith v. Comm'r, 731 Fed.Appx. 28,
30 n.1 (2d Cir. 2018) (summary order). Where a
plaintiff's claim for benefits was filed prior to March
27, 2017, “the Court reviews the ALJ's decision
under the earlier regulations[.]” Rodriguez v.
Colvin, No. 3:15CV1723(DFM), 2018 WL 4204436, at *4 n.6
(D. Conn. Sept. 4, 2018); White v. Comm'r, No.
17CV4524(JS), 2018 WL 4783974, at *4 (E.D.N.Y. Sept. 30,
2018) (“While the Act was amended effective March 27,
2017, the Court reviews the ALJ's decision under the
earlier regulations because the Plaintiff's application
was filed before the new regulations went into effect.”
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 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); 20 C.F.R.
§§404.1520(c), 416.920(c) (requiring that the
impairment “significantly limit ... physical or
mental ability to do basic work activities” to be
considered “severe” (alterations added)).
is a familiar five-step analysis used to determine if a
person is disabled. See 20 C.F.R. §§404.1520,
416.920. In the Second Circuit, the test is described as
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.
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) (alteration added) (citing 68 Fed. Reg. 51155 (Aug. 26,
2003)); Poupore v. Astrue, 566 F.3d 303, 306 (2d
Cir. 2009) (per curiam)). The 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. (quoting
Haberman v. Finch, 418 F.2d 664, 667 (2d Cir.
THE ALJ'S DECISION
the above-described five-step evaluation process, ALJ Bower
concluded that plaintiff “was not disabled prior to May
23, 2017, but became disabled on that date and has continued
to be disabled through the date” of her decision. Tr.
22; see also Tr. 31. At step one, the ALJ found that
plaintiff had not engaged in substantial gainful activity
since the alleged onset date of August 31, 2014. See Tr. 24.
At step two, the ALJ found: “Since the alleged onset
date of disability, August 31, 2014, the claimant has had the
following severe impairments: obesity with back pain,
depression, and anxiety[.]” Id. The ALJ found
plaintiff's closed toe fracture of her right fifth toe
and esophagitis to be non-severe impairments. See id.
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. 24-25. The ALJ
specifically considered Listings 1.04 (disorders of the
spine), 12.04 (affective disorders), and 12.06 (anxiety
related disorders) in making that determination. See
Id. Before moving on to step four, the ALJ
determined that since August 31, 2014, plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she can occasionally climb stairs and
ramps, balance, stoop, kneel, crouch, and crawl. She can
never climb ladders, ropes, or scaffolds. She has limitation
in concentration, persistence, or pace with the ability to
understand, remember, and carry out simple tasks of a routine
and repetitive nature. She is limited to object oriented
tasks with only occasional superficial work related
interactions with the general public.
Tr. 25. The ALJ found: “Prior to the established
disability onset date, the claimant was an individual closely
approaching advanced age. On May 23, 2017, the claimant's
age category changed to an individual of advanced
age[.]” Tr. 30. At step four, the ALJ determined:
“Prior to May 23, 2017, transferability of job skills
is not material to the determination of disability[.] ...
Beginning on May 23, 2017, the claimant has not been able to
transfer job skills to other occupations[.]”
Id. At step five, the ALJ found that prior to May
23, 2017, and after considering plaintiff's age,
education, work experience and RFC, as well the testimony of
the VE, other jobs existed in significant numbers in the
national economy that plaintiff could perform. See Tr. 30-31.
The ALJ then determined: “Beginning on May 23, 2017,
the date the claimant's age category changed; ...