Bautista v. Berryhill

          RULING ON CROSS MOTIONS

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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].

         For the 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 GRANTED.

         I. PROCEDURAL HISTORY^[1]

         Plaintiff filed concurrent applications for DIB and SSI on November 25, 2014, alleging disability beginning March 14, 2012.^[2]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 Tr. 156-63.

         On May 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.^[3] 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. §405(g).

         Plaintiff 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 argues:

1. The ALJ failed to evaluate permanent restrictions assessed by Dr. Abella;

2. The ALJ failed to properly weigh the opinion of Dr. Baleswaren; and

3. The ALJ improperly relied on the opinions of the state reviewing, non-examining physicians.^[4]

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 evidence.

         II. STANDARD OF REVIEW

         The 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).

         The 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).

         “[T]he 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, 1994)).

         It is 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).

         Finally, 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.” (citation omitted)).

         III. SSA LEGAL STANDARD

         Under the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits. 42 U.S.C. §423(a)(1).

         To be 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)).

         There 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 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 fifth steps:

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.

         “Through 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), 416.945(a)(1).

         “In 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. 1969)).

         IV. THE ALJ'S DECISION

         Following 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.

         At step 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; ...