Richards v. Berryhill

          RULING AND ORDER

          Donna F. Martinez United States Magistrate Judge

         The plaintiff, Maria Leonor Richards, who is self-represented, brought this action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision by the Commissioner of Social Security ("Commissioner") denying the plaintiff's applications for disability insurance benefits and supplemental security income. On February 15, 2018, the Commissioner filed the Administrative Record. (Doc. #14.) Thereafter, on February 20, 2018, the court issued a detailed scheduling order stating in part "Plaintiff shall file a motion to reverse and/or remand and a supporting memorandum of law on or before April 17, 2018. Defendant shall file a motion to affirm or a motion for voluntary remand on or before June 18, 2018." (Doc. #16.) The plaintiff did not file a motion and memorandum. Rather, on March 28, 2018, she filed various medical records. (Doc. #20.) On June 7, 2018, the defendant filed a motion to affirm the Commissioner's decision and a supporting memorandum explaining the defendant's reasons as to why the decision should be upheld. (Doc. ##21, 21-1.) The plaintiff did not file anything in response. On February 6, 2019, the court issued an order setting forth the procedural history of the case, including the fact that the plaintiff had failed to file a motion to reverse the ALJ's decision. The court went on to explain to the plaintiff that

[i]f the court grants the defendant's motion, the litigation will be over and the case closed. By 2/19/2019, [you] may file with the Clerk's Office an opposition to the defendant's motion, explaining why [you] believe[] the ALJ's decision was incorrect and addressing arguments the defendant made in its motion. If [you] do[] not file anything, the court will issue a decision based on the defendant's submission alone.

(Doc. #23.) Still, the plaintiff did not file anything in response. For the reasons that follow, the defendant's motion to affirm the Commissioner's decision is granted.^[1]

         I. Administrative Proceedings

         In October 2014, the plaintiff applied for disability insurance benefits and supplemental security income alleging that she was disabled as of December 25, 2012 due to problems with her back, left shoulder and arm. (R. at 278.) Her applications were denied initially and upon reconsideration. She requested a hearing before an Administrative Law Judge ("ALJ"). On August 31, 2016, the plaintiff testified at a hearing with the assistance of an interpreter.^[2] A vocational expert also testified. On September 28, 2016, the ALJ issued an unfavorable decision. (R. at 69-77.) The plaintiff submitted records to the Appeals Council and requested review of the ALJ's decision. On October 20, 2017, the Appeals Council declined to consider the additional evidence and denied the plaintiff's request for review of the ALJ's decision review, making the ALJ's decision final. (R. at 1-4.) In December 2017, the plaintiff filed this action alleging in her complaint that she should have been awarded benefits because she has "problems in [her] lower back and in [her] left arm near [her] shoulder." (Doc. #1, Compl. at 2.)

         II. Standard of Review

         This court's review of the ALJ's decision is limited. "It is not [the court's] function to determine de novo whether [the plaintiff] is disabled." Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). The court may reverse an ALJ's finding that a plaintiff is not disabled only if the ALJ applied incorrect legal standards or if the decision is not supported by substantial evidence. Brault v. Soc. Sec. Admin., 683 F.3d 443, 447 (2d Cir. 2012). "Substantial evidence is more than a mere scintilla. . .. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Brault, 683 F.3d at 447 (quotation marks and citations omitted). The Second Circuit has characterized the substantial evidence standard as "a very deferential standard of review - even more so than the 'clearly erroneous' standard." Brault, 683 F.3d at 448. In determining whether the ALJ's findings "are supported by substantial evidence, 'the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.'" Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)). "Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (internal quotation marks and citation omitted).

         III. Legal Standard

         The Commissioner of Social Security uses the following five-step procedure to evaluate disability claims:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] 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 [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience.... 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 [Commissioner] then determines whether there is other work which the claimant could perform.

Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (internal alterations and citation omitted).

         IV. Medical Evidence

         The plaintiff was born in 1965 and was 47 years old in December 2012, her alleged date of disability. She is a high school graduate. She lives with her husband and children. She does not speak or understand English. (R. at 277.) The plaintiff worked as a hair stylist but stopped working in 2011 when she moved from New York to Connecticut. (R. at 278.)

         She fell on Christmas of 2012. A CT scan of the plaintiff's cervical spine showed a congenital posterior fusion defect in C1 and mild degenerative changes in the cervical spine. (R. at 344.) On examination, she had "full range of motion" of her neck. (R. at 333.) A neurological exam showed no deficits. She had equal strength in all four extremities. When seen in January 2013, the plaintiff had full range of motion of her lumbar spine. (R. at 339.) She was "tender to palpation over the right low back paraspinous musculature." (R. at 339.) Her neurological exam was unremarkable. She had equal strength in all four extremities. Straight leg raising was negative. She was prescribed Motrin and Flexeril.

         In February 2013, the plaintiff was seen at the Charter Oak Health Center for complaints of pain in her back and right arm.^[3](R. at 392.) She had no gait disturbance. An x-ray of her right shoulder was normal. (R. at 451.) She was assessed with lumbago and shoulder joint pain and prescribed Diclofenac.^[4] (R. at 391, 393.) She continued to complain of back pain and underwent physical therapy, which alleviated her symptoms. (R. at 390.)

         In May 2013, an MRI of the plaintiff's lumber spine revealed "L5-S1, L4-5 very mild small disc bulge without central canal or neural foraminal stenosis." (R. at 349.) In June 2013, Dr. Kishawi recommended that the plaintiff have lumbar epidural steroid injections to address her back discomfort but the plaintiff declined. (R. at 458.) The plaintiff resumed physical therapy but discontinued it when she left the country for two months. (R. at 457.)

         In August 2013, the plaintiff was seen by Dr. Walker, an orthopedist, at UConn. She complained of pain in her left hip, groin and lower back. (R. at 348.) Examination showed normal range of motion in her cervical spine, shoulders, and upper extremities. X-rays of the plaintiff's hips were normal. (R. at 359.) Dr. Walker observed that the plaintiff had no neurologic deficits and "[n]o signs of nerve root compression." (R. at 349.) He recommended physical therapy and opined that "her symptoms most likely will improve over time." (R. at 350.) In October 2013, the plaintiff was seen at the Charter Oak Health Center for lower back pain. (R. at 377.) Notes state that her symptoms were aggravated by heavy lifting and relieved by physical therapy. (R. at 377.)

         In September 2014, the plaintiff returned to Dr. Walker at UConn (R. at 351.) She reported that the Diclofenac was helping. Her symptoms were assessed as "chronic" but "fairly well-controlled." She had no neurologic deficits. (R. at 351.) Straight leg raising was negative. (R. at 353.) Imaging studies revealed "age-related changes." (R. at 353.) She was assessed with myositis^[5] and lower back pain. Dr. Walker recommended a regular exercise program such as yoga or pilates and referred her to physical and aqua therapy. (R. at 354.)

         When seen at the Charter Oak Health Center on September 30, 2014, the plaintiff reported left shoulder pain. (R. at 409.) Physical therapy was recommended. In a follow-up appointment with Dr. Walker at UConn in November 2014, the plaintiff again indicated that her lower back pain was chronic but "fairly controlled." (R. at 355.) She reported that her medication was helpful. Dr. Walker opined that "the etiology of pain was from inflammation/lumbar spondylosis." (R. ...