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Avila v. Berryhill

United States District Court, D. Connecticut

August 5, 2019

JOSE AVILA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          RULING AND ORDER ON MOTION TO REVERSE THE DECISION OF THE COMMISSIONER AND MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Jose 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. 19-2.

         Mr. 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 Commissioner[1]moves the Court to affirm her decision. Def. Mot for Order Affirming Decision of the Comm'r (“Def. Mot. to Affirm”), ECF No. 20.

         For the 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Background

         Born in 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.

         Mr. 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. 732-33.

         Mr. 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. 554.

         A 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.”).

         Mr. 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.[2]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.

         On 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.

         In 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 reading.”).

         Following 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 attendance.” Id.

         On 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.

         On 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.

         On 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, 44, 47.

         Mr. 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.

         The ALJ 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.

         The ALJ 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 economy. Id.

         The ALJ 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.

         The 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.

         The ALJ 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.

         On 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.[3]

         The ALJ determined that Mr. Avila's last insured date was December 31, 2019. ALJ Decision, Tr. 84.

         At Step One, the ALJ determined that Mr. Avila had not engaged in substantial gainful activity since December 1, 2014. Id.

         At Step 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.

         Despite 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.

         With 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 disorder[.]”).

         The ALJ 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.

         The ALJ 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.

         At Step 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.

         At Step 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.

         B. Procedural Background

         On January 11, 2017, Mr. Avila requested agency review. Social Security Administration, Notice of Appeals Council Action, Tr. 1.

         On February 9, 2018, the Appeals Council denied Mr. Avila's ...


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