United States District Court, D. Connecticut
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. ...