United States District Court, D. Connecticut
RULING AND ORDER ON MOTION TO REVERSE THE DECISION OF
THE COMMISSIONER AND MOTION TO AFFIRM THE DECISION OF THE
A. BOLDEN UNITED STATES DISTRICT JUDGE
Avila (“Plaintiff”) filed this administrative
appeal under 42 U.S.C. § 405(g) against Nancy A.
Berryhill, Acting Social Security Commissioner
(“Defendant” or “Acting
Commissioner”), seeking review of the Social Security
Administration's (“SSA”) denial of his claim
for Social Security Disability (“SSDI”) and
Supplemental Security Income Benefits (“SSI”).
Complaint (“Compl.”), ECF No. 1; see
also Mem. of Law in Supp. of Mot. to Reverse the
Decision of the Comm'r (“Pl. Mem.”), ECF No.
Avila moves to reverse the decision of the Acting
Commissioner. Mot. to Reverse the Decision of the Comm'r
(“Pl. Mot. to Reverse”), ECF No. 19. The Acting
Commissionermoves the Court to affirm her decision.
Def. Mot for Order Affirming Decision of the Comm'r
(“Def. Mot. to Affirm”), ECF No. 20.
following reasons, the Court DENIES Mr.
Avila's motion to reverse the decision of the
Commissioner, Pl. Mot. to Reverse; and
GRANTS the Acting Commissioner's motion
to affirm, Def. Mot. to Affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1966, Jose Avila worked as a hospital housekeeper in 1990, a
school bus driver from 1999 to 2001, and a groundskeeper at a
golf course from 2001 to 2014. Transcript of the
Administrative Record (“Tr.”), ECF No. 16, at
202, 207; see also Transcript of Oral Hearing
(“Hearing Transcript””), Tr. 41. In the
summer of 2015, Mr. Avila filed his initial SSDI and SSI
application, claiming an onset of disability in December
2014. Statement of Material Facts, ECF No. 19-1, at 1;
Disability Determination Explanation, Tr. 91.
Avila suffers from asthma that flares in response to
temperature fluctuations and allergens. Yale New Haven, Prob.
List (July 15, 2015), Tr. 284; Jose Luis Gomez Villalobos,
M.D., Progress Notes (Oct. 25, 2016), Tr. 732-33; Tr. 284;
Florence Hsu, M.D., Progress Note (Aug. 5, 2014), Tr. 347
(“Asthma is acting up again. Finished prednisone taper
the day before yesterday. Has not started Spiriva yet. Did
not go to work today due to asthma, did 4 albuterol neb
treatments.”); Junjie Liu, M.D., Progress Note (July 7,
2015), Tr. 286; Statement of Material Facts ¶ 4. In the
fall of 2016, Mr. Avila was using albuterol approximately
four times per day and still experiencing symptoms. Jose Luis
Gomez Villalobos, M.D., Progress Notes (Oct. 25, 2016), Tr.
Avila also suffers from shoulder injuries. Id. In
July 2015, Mr. Avila's treating physician, Dr. Liu, noted
that the shoulder pain had developed over a year, lasted for
hours, and was not relieved by non-prescription medication.
Junjie Liu, M.D., Progress Note (July 7, 2015). In December
2015, Dr. Liu noted that lidocaine patches were providing
some relief for Mr. Avila's shoulder problems, but that
he had completed one month of physical therapy without
relief. Junjie Liu, M.D., Progress Note (Dec. 18, 2015), Tr.
January 2016 MRI of Mr. Avila's left shoulder revealed
“full-thickness tear of the supraspinatus tendon”
and “partial tear involving the intra-articular
portion” of the “long head of biceps
tendinosis.” Jose Restrepo, M.D., Exam: MR Shoulder
without Contrast Left (Jan. 11, 2016), Tr. 737-38. In a
follow-up visit, Dr. David Kovacevic, M.D. characterized the
MRI as “demonstrat[ing a] small full-thickness SSp tear
with no retraction and preserved muscle quality.” David
Kovacevic, M.D., Chief Complaint Follow-up (Nov. 22, 2016),
Tr. 735-36. Dr. Liu, however, characterized the rotator cuff
tendon tears as “severe.” Junjie Liu, M.D., Adult
Clinic Visit Note (Nov. 28, 2016), Tr. 729 (“Lifting
normal load of ~10 lb worsens symptoms.”).
Avila is morbidly obese, suffers from gastrointestinal
issues, spinal stenosis, Type II diabetes, and a host of
chronic physical conditions. Junjie Liu, M.D., Progress Note
(June 22, 2015), Tr. 290; Jose Luis Gomez Villalobos, M.D.,
Progress Note (Sept. 29, 2015), Tr. 489.Junjie Liu, M.D.,
Progress Note, Tr. 290. Dr. Liu and other doctors recommended
bariatric surgery to alleviate some of these issues.
Id.; Jose Luis Gomez Villalobos, M.D., Progress
Note, Tr. 489. Mr. Avila was scheduled for bariatric surgery
in November 2015, id., but cancelled the procedure
due to its potential complications. Junjie Liu, M.D.,
Progress Note (Feb. 11, 2016), Tr. 573; Statement of Material
Facts ¶ 11, 14.
November 28, 2016, Dr. Liu described Mr. Avila's ability
to work as “severely limited.” Junjie Liu, M.D.,
Residual Functional Capacity: Medical Source Opinion of
Treating Physician (Nov. 28, 2016), Tr. 723-24.
addition to these physical ailments, Mr. Avila also suffers
from depression and likely has a learning disorder. Liese
Franklin-Zitzkat, Psy.D., Disability Evaluation (Sept. 3,
2015), Tr. 426 (“DSM-5 Diagnostic Impressions: 296.22
Major Depressive Disorder, single episode, moderate R/O
Specific Learning Disorder, with impairment in
a consultative evaluation, Dr. Liese Franklin-Zitzkat found
that Mr. Avila “would likely need extra time with
written instructions” and that he self-reported
“moderate or even marked difficulty sustaining
concentration, ” but exhibited only mild difficulty on
a brief mental status examination task intended to screen for
concentration problems. Id. at 427. Dr.
Franklin-Zitzkat determined that Mr. Avila's depression
“could interfere with his ability to maintain
attendance” but that since “the depression is
related to his alleged physical problems/inability to work .
. . if he could physically work and maintain employment, the
depression would remit and he would be able to withstand the
stresses and pressures of a routine work day and maintain
October 30, 2015, the SSA denied Mr. Avila's initial
disability application. Supp. Security Income Notice, Tr.
130-32; Disability Determination documents, Tr. 91-110. Mr.
Avila requested reconsideration. Request for Reconsider.
Summary, Tr. 134-35. On January 15, 2016, the SSA again
denied Mr. Avila's application. Supp. Security Income
Notice of Reconsider, Tr. 137-39; Disability Determination
documents, Tr. 111-128.
March 8, 2016, Mr. Avila requested a hearing before an
administrative law judge (“ALJ”). Request for
Hr'g by Admin. Law Judge, Tr. 140-41.
November 28, 2016, an ALJ heard Mr. Avila's Social
Security case. Hearing Transcript, Tr. 16. At that hearing,
Mr. Avila testified about his spinal stenosis, diabetic
neuropathy, blood sugar control, asthma, bilateral shoulder
injuries, depression, sleep apnea, and prior carpal tunnel
problems. Hearing Transcript, Tr. 25-32. He explained that he
quit his golf course job when the pain from his spinal
stenosis worsened. Hearing Transcript, Tr. 42. He described
his current height and weight as “5'2",
230.” Id., Tr. 35. Mr. Avila testified that
when he sits for “a little bit” his legs go numb,
but when he stands his “bottom goes numb, ” his
legs tingle, and he feels pain. Hearing Transcript, Tr. 34,
Avila testified that he dropped out of school in the ninth
grade and did not subsequently complete his GED or vocational
coursework. Hearing Transcript, Tr. 36-37. He reported
limited reading and writing ability. Id.
also heard from a vocational expert in rehabilitation
counseling. Hearing Transcript, Tr. 57. She testified that
Mr. Avila's prior work as a groundskeeper was medium
exertional and skilled, while his work as a bus driver was
medium exertional and semiskilled. Hearing Transcript, Tr.
59. She testified that the skills from those jobs were
largely trade specific and non-transferable. Hearing
Transcript, Tr. 60.
asked the vocational expert to consider a hypothetical person
of Mr. Avila's age, education level, and past relevant
work, who could lift twenty-five pounds frequently and fifty
pounds occasionally, but not reach bilaterally frequently and
who would need to avoid exposure to extreme wetness,
humidity, fumes, odors, dust, gases, poorly ventilated areas,
dangerous fixed machinery, and assembly-line work (i.e.,
paced work). Hearing Transcript, Tr. 60-61. The vocational
expert testified that that person could perform a variety of
medium exertional jobs including: driving a school bus, hand
packing, or working as a dietary aide or laundry employee.
Hearing Transcript, Tr. 61-62. She testified that there were
significant numbers of such positions in the national
asked the vocational expert to consider only light jobs for
such a person. Hearing Transcript, Tr. 62. The ALJ added that
the person would need to alternate between sitting and
standing every 45 minutes, but could frequently reach
overhead with his right arm and occasionally with his left
arm. Hearing Transcript, Tr. 62-63.
vocational expert testified that that person could not do Mr.
Avila's past work because the person would not be free to
change positions at regular intervals. Hearing Transcript,
Tr. 64. The hypothetical person, however, could work light
exertional jobs including parking lot attendant, ticket
seller, or cashier. Hearing Transcript, Tr. 64-65. The
vocational expert later testified that the person could work
sedentary exertional jobs, such as telephone order clerk or
hand packer. Hearing Transcript, Tr. 69. She testified that
there were significant numbers of such positions in the
national economy. Id.
then asked the vocational expert if there would still be jobs
for such a person if he needed to take two unscheduled breaks
of 20 minutes each during an eight-hour work day, Hearing
Transcript, Tr. 66; the vocational expert estimated that no
such jobs exist, id.
January 11, 2017, the ALJ determined that Mr. Avila was not
disabled from December 1, 2014 through January 11, 2017.
Notice of Decision - Unfavorable (“ALJ
Decision”), Tr. at 82-90.
determined that Mr. Avila's last insured date was
December 31, 2019. ALJ Decision, Tr. 84.
One, the ALJ determined that Mr. Avila had not engaged in
substantial gainful activity since December 1, 2014.
Two, the ALJ determined that Mr. Avila had seventeen
medically determinable impairments: “cervical
degenerative disc disease, lumbar spinal stenosis, bilateral
shoulder tendon tears, obesity, headache, asthma, diabetes
mellitus, gastroesophageal reflux disease, hernia,
obstructive sleep apnea, allergic rhinitis/sinusitis,
allergies, shingles, hypertension, hyperlipidemia, depression
and learning disorder (20 CFR 404.1521 et seq. and
416.921 et seq.).” ALJ Decision, Tr. 85.
the number of impairments, the ALJ found that Mr. Avila
“does not have an impairment or combination of
impairments that has significantly limited (or is expected to
significantly limit the ability to perform basic work-related
activities for 12 consecutive months; therefore, the claimant
does not have a severe impairment or combination of
impairments (20 CFR 404.1521 et seq. and 416.921
et seq.).” Id.
the exception of significant bilateral shoulder tendon tears,
the ALJ found that Mr. Avila's symptoms were largely
episodic and that his medical records revealed “largely
‘negative' unremarkable physical/neurological
examinations . . . ‘well controlled' diabetes
mellitus . . . hypertension, hyperlipidemia, shingles and
depression.” ALJ Decision, Tr. 87. The ALJ noted that
most of Mr. Avila's conditions had been “treated
conservatively with medications and physical therapy during
this period.” Id. (E.g., “During the
entire alleged period of disability . . . the claimant has
not sought out any regular or ongoing psychological or
psychiatric treatment for either his depression or learning
gave substantial weight to the state agency consultants'
conclusions that Mr. Avila had only “nonsevere”
impairments. ALJ Decision, Tr. 88. The ALJ gave less
probative weight to Dr. Liu's conclusions because they
were “internally inconsistent with his own physical
examinations/treatment notes which show few, if any, positive
findings.” Id. Similarly, the ALJ gave limited
weight to Dr. Zitzkat's findings that Mr. Avila had
“moderate . . . marked” limitations in sustained
concentration and “mild to moderate” difficulty
coping with routine workday stresses because those findings
were “inconsistent with the basically unremarkable
mental status examination at the time.” Id.
then found that even if Mr. Avila's “spine
disorders/shoulder disorders/ obesity/asthma were deemed
‘severe, '” Mr. Avila would have the residual
functional capacity to perform light work with certain
limitations, including alternate sitting and standing every
45 minutes and avoidance of concentrated exposure to wetness
and humidity. ALJ Decision, Tr. 89.
Four, the ALJ determined that Mr. Avila was incapable of
working as a golf course groundskeeper. ALJ Decision, Tr. 90.
The ALJ, however, adopted the vocational expert's
determinations that Mr. Avila could work as a parking lot
attendant, ticket seller, cashier, and inspector (i.e., light
exertional jobs). Id.
Five, the ALJ concluded that Mr. Avila “has not been
under a disability, as defined in the Social Security Act,
from December 1, 2014 through the date of this decision (20
CFR 404.1520(C) and 416.920(c)).” Id.
January 11, 2017, Mr. Avila requested agency review. Social
Security Administration, Notice of Appeals Council Action,
February 9, 2018, the Appeals Council denied Mr. Avila's