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Talyosef v. Berryhill

United States District Court, D. Connecticut

August 26, 2019

CARYN TALYOSEF, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OF DECISION ON THE PLAINTIFF'S MOTION TO REVERSE AND THE DEFENDANT'S MOTION FOR REMAND

          Kari A. Dooley, United States District Judge.

         Preliminary Statement

         The pro se Plaintiff, Caryn Talyosef, (“the Plaintiff”) brings this administrative appeal pursuant to 42 U.S.C. § 405(g) challenging the decision of defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration[1], (the “Commissioner”) denying her application for disability insurance benefits pursuant to Title II of the Social Security Act (the “Act”). On July 11, 2013, the Plaintiff filed her application for disability insurance benefits alleging an onset date of November 19, 2011.[2] Her claim was denied initially on September 11, 2013 and again upon reconsideration on November 27, 2013. Thereafter, a hearing was held before an ALJ on December 10, 2015. On February 29, 2016, the ALJ issued a written decision denying the Plaintiff's application. The Plaintiff herein moves to reverse the Commissioner's decision based on alleged factual and legal errors in the Administrative Law Judge's (“ALJ”) findings and analysis. The Commissioner responds that the ALJ correctly determined that the Plaintiff is not entitled to disability insurance benefits. The Commissioner concedes, however, that a recent decision by the Second Circuit Court of Appeals requires the Court to remand the matter for the limited purpose of developing one component of the factual record. For the reasons set forth below, the Plaintiff's Motion to Reverse (ECF No. 27) is DENIED in part and GRANTED in part, and the Commissioner's Motion for Remand (ECF No. 31) is GRANTED.

         Applicable Law

         A person is “disabled” under the Act if that person is unable to “engage in any substantial gainful activity 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). A physical or mental impairment is one that “results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). In addition, a claimant must establish that his “physical or mental impairment or impairments are 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).

         Pursuant to regulations promulgated by the Commissioner, a five-step sequential evaluation process is used to determine whether a claimant's condition meets the Act's definition of disability. See 20 C.F.R. § 404.1520. In brief, the five steps are as follows: (1) the Commissioner determines whether the claimant is currently engaged in substantial gainful activity; (2) if not, the Commissioner determines whether the claimant has a “severe impairment” which limits her mental or physical ability to do basic work activities; (3) if such a “severe impairment” is established, the Commissioner next determines whether the medical evidence establishes that the claimant's impairment “meets or equals” an impairment listed in Appendix 1 of the regulations; (4) if the claimant does not establish the “meets or equals” requirement, the Commissioner must then determine the claimant's residual functional capacity (“RFC”) to perform her past work; (5) if the claimant is unable to perform her past work, the Commissioner must next determine whether there is other work in the national economy which the claimant can perform. 20 C.F.R. § 404.1520(a)(4)(i)-(v). The claimant bears the burden of proof with respect to step one through step four, while the Commissioner bears the burden of proof as to step five. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008); McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).

         The ALJ's Decision

         At step one, the ALJ found that the Plaintiff had not been engaged in substantial gainful activity between the claimed onset date and her date last insured of December 31, 2012. At step two, the ALJ determined that the Plaintiff had several severe impairments, specifically, degenerative disc disease of the cervical and lumbar spine, status post fusion at ¶ 5-S1, right shoulder impingement and rotator cuff tendinitis, and status post surgery for left shoulder labral tear. At step three, the ALJ further concluded that the Plaintiff did not have an impairment or combination of impairments that met or equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. Specifically, the ALJ determined that the Plaintiff did not meet Listing 1.04, which addresses disorders of the spine, in that the Plaintiff did not establish that she has objective evidence of stenosis, compression, or the requisite neurological deficits. The ALJ further found that the Plaintiff's hip and shoulder conditions fail to meet the requirements of Listing 1.02(B) because the Plaintiff can perform fine and gross manipulation, and 1.02(A) because she can ambulate effectively. At step four, the ALJ found that the Plaintiff had the residual functional capacity to perform light work, subject to several exceptions and limitations. At step five, the ALJ determined that the Plaintiff could perform her past relevant work as a casino room manager. The ALJ also found that there were other jobs existing in the national economy that the Plaintiff could perform, to include usher and gate guard. Accordingly, the ALJ found that the Plaintiff was not disabled within the meaning of the Act.

         Discussion

         As an initial matter, the Commissioner submits that remand is necessary under the holding of Lockwood v. Commissioner of Social Security, 914 F.3d 87 (2d Cir. 2019). There, the Second Circuit held that ALJs have a duty to identify and inquire into all “apparent” conflicts-even if “non-obvious”-between a vocational expert's testimony and the Dictionary of Occupational Titles (“DOT”). Id. at 92. If the ALJ fails to do so, then the vocational expert's testimony cannot be said to be “substantial evidence capable of demonstrating that [the claimant] can successfully perform work in the national economy”, and remand for further proceedings is appropriate. Id. at 94. Here, the ALJ failed to resolve an apparent conflict between the vocational expert's testimony and the DOT. In his decision, the ALJ concluded that the Plaintiff has an RFC to perform light work subject to several limitations, including, relevantly, no overhead reaching with her right upper extremity. At the hearing, the ALJ asked the vocational expert about jobs in the national economy that a person with the Plaintiff's age, education, work experience, and RFC could perform. The vocational expert identified three jobs that such an individual could perform, all of which, according to the DOT, require occasional overhead reaching. Although the ALJ asked the vocational expert to certify that his testimony was consistent with the DOT, he did not, as is now required by Lockwood, specifically inquire into the apparent inconsistency between the vocational expert's testimony that the hypothetical individual (who was restricted from any overhead reaching with her right extremity) could perform jobs identified in the DOT that, in fact, require occasional overhead reaching. “[The vocational expert's] testimony cannot, then, represent substantial evidence capable of demonstrating that [the claimant] can successfully perform work in the national economy.” Id. Accordingly, the case must be reversed and remanded for further proceedings before the ALJ.

         Having determined that remand is necessary, the Court must next determine the scope of the remand. The Commissioner seeks remand only on the issue addressed above and asserts that all other of the Commissioner's findings are supported by substantial evidence in the record and need not be disturbed on appeal or revisited on remand. The Plaintiff objects to the remand sought by the Commissioner. She challenges the findings at step three and step four and seeks a reversal and remand for the calculation of benefits. Alternatively, she seeks a remand for rehearing on steps three and four.

         The fourth sentence of Section 405(g) of the Act provides that a “[c]ourt shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the case for a rehearing.” 42 U.S.C. § 405(g). It is well-settled that the district court will reverse an ALJ's decision only when it is based upon legal error or when it is not supported by substantial evidence in the record. See Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . .”). “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.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted). The Court does not inquire as to whether the record might also support the Plaintiff's claims, but only whether there is substantial evidence to support the Commissioner's decision. See Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (“If there is substantial evidence to support the [agency's] determination, it must be upheld.”). Where the decision is not supported by substantial evidence, the Court may remand for a rehearing. Rehearing is the proper remedy “when ‘further findings' would so plainly help to assure the proper disposition of [the] claim . . . ” Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999). The decision of whether to remand for a rehearing rests within the sound discretion of the district court. Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2004). Finally, “[a] reversal with remand for the calculation of benefits is appropriate when the record is so clear as to compel a conclusion” that the claimant is disabled. Skrodzki v. Comm'r of Soc. Sec. Admin., 693 Fed.Appx. 29, 29-30 (2d Cir. 2017); see also Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) (explaining that outright reversal is only appropriate when “application of the correct legal standard could lead to only one conclusion, ” but not when the outcome is still uncertain).

         Step Three Challenge

         The Plaintiff challenges the ALJ's finding at step three that she does not meet Listing 1.04(A). She argues that her medical impairments of degenerative disk disease, Tarlov Cysts, Super Mesenteric Artery Syndrome (“SMA”), left ankle injury, and restless leg syndrome, alone, or in combination equal Listing 1.04(A). Pl's. Br. 27-29, ECF 27. “For a claimant to show that [her] impairment matches a listing, it must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) ...


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