Clark v. Saul

          RULING ON THE PLAINTIFF’S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER, OR IN THE ALTERNATIVE, MOTION FOR REMAND FOR A HEARING, AND ON THE DEFENDANT’S MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

          Robert M. Spector, United States Magistrate Judge

         This action, filed under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeks review of a final decision by the Commissioner of Social Security [“SSA”] denying the plaintiff disability insurance benefits [“SSDI”].

         I. ADMINISTRATIVE PROCEEDINGS

         On July 31, 2015, the plaintiff filed an application for SSDI, claiming that he has been disabled since March 31, 2006, ^[2] due to a double hip replacement, diabetes, celiac disease, iron deficiency, chronic gout, psoriatic arthritis, monoclonal gammopathy, stage 3 chronic kidney disease, osteoarthritis, osteopenia, high blood pressure, and high cholesterol. (See Doc. No. 9, Certified Transcript of Administrative Proceedings, dated December 21, 2018 [“Tr.”] 103). The plaintiff’s applications were denied initially and upon reconsideration (Tr. 127-30, 136-43), and on October 24, 2017, a hearing was held before Administrative Law Judge [“ALJ”] John Aletta, at which the plaintiff and a vocational expert testified. (Tr. 34-57). On November 16, 2017, the ALJ issued an unfavorable decision denying the plaintiff’s claim for benefits (Tr. 12-29). On September 18, 2018, the Appeals Council denied the request, thereby rendering the ALJ’s decision the final decision of the Commissioner. (Tr. 1-5).

         On November 21, 2018, the plaintiff filed his complaint in this pending action (Doc. No. 1), and on November 27, 2018, the parties consented to the jurisdiction of a United States Magistrate Judge. (Doc. No. 7). This case was transferred accordingly. On March 21, 2019, the plaintiff filed his Motion to Reverse the Decision of the Commissioner (Doc. No. 11), with a brief (Doc. No. 11-2 [“Pl.’s Mem.”]), exhibits (Doc. Nos. 11-3, 11-4, 11-5, 11-6), and Statement of Material Facts (Doc. No. 11-1) in support. On May 13, 2019, the defendant filed his Motion to Affirm (Doc. No. 12 [“Def.’s Mem.”]), with a Statement of Material Facts in support (Doc. No. 12-1).

         For the reasons stated below, the plaintiff’s Motion to Reverse the Decision of the Commissioner (Doc. No. 11) is GRANTED, and the defendant’s Motion to Affirm (Doc. No. 12) is DENIED.

         II. FACTUAL BACKGROUND

         On the date of the hearing, the plaintiff was sixty-three years old (Tr. 41), and during the relevant period at issue in 2012, he lived with his wife in a two-level home. (Tr. 45, 63). He would use a snow blower, as necessary, and mowed the lawn on a riding lawn mower. (Tr. 63). He could not dress himself without his wife’s assistance because of his multiple hand surgeries, but he could make the bed. (Tr. 63-64). He completed high school and trained for a year to be a respiratory therapist. (Tr. 44). He had a Class B driving license, but “[t]hey took it away from [him] because of diabetes.” (Tr. 44).

         From 2002 to 2006, the plaintiff worked for CWPM, LLC, a trash hauling company, supervising the sales department and performing some sales work. (Tr. 46-47). From 2012 to 2014, the plaintiff “was trying” to sell residential real estate. (Tr. 48-49). He would research properties on-line and would use the internet with one hand because he could not use his left hand at that time. (Tr. 66). He stopped the real estate work because it cost him a lot of money in annual licensing fees, and there were several other associated costs. (Tr. 68-69).

         The plaintiff testified that he could not work from March 1, 2012 to June 30, 2012 because he was “having significant pain[]” in his neck, shoulders, right arm, and lower back, and his ankles and feet were “giving [him] a lot of problems.” (Tr. 50). The plaintiff explained that he injured his left hand in June 2010 when he grabbed his gas grill to keep it from falling over, and as “it fell backwards[, ] it stripped all of the skin to the end of [his] fingers. It took – they cut all the nerves, ligaments.” (Tr. 52). He had three surgeries on that hand as a result of this injury. (Tr. 52). The plaintiff testified also that he had surgeries on both feet, a laminectomy on his lower back, and he was seeing a rheumatologist. (Tr. 52). He explained that he had psoriatic arthritis, which included pain in his joints, and he had “a hard time with . . . [his] ankles[.]” (Tr. 70-71). He had chronic edema in his feet and ankles, and he would use compression socks. (Tr. 73). At the time of the hearing, he was insulin dependent, and he had diabetic neuropathy. (Tr. 72). He had gained about forty pounds from taking Prednisone. (Tr. 74-75).

         Between March and June 2012, the plaintiff had “terrible pain” in his right shoulder, that radiated down his arm. (Tr. 79). He could not lift overhead and had “problems” putting on his jacket. (Tr. 79). Moreover, according to the plaintiff, during the relevant time, he could not carry anything, he had trouble sleeping because of pain when he turned, and he had pain bending, stooping, kneeling and crouching. (Tr. 59). Additionally, at that time, he had arthritis in his right hand, and the surgeries on his left hand helped “as much as [they] possibly could[, ]” but he still did not have any feeling in the tips of three of his fingers, and he “ended up with carpal tunnel because of the fingers too.” (Tr. 61-62). He described his typical day as moving around within the house, trying to do some work, and then napping or resting. (Tr. 75-76). He could sit for a “few hours[.]” (Tr. 77). He received regular physical therapy following his surgeries. (Tr. 76). He used a TENS^[3] machine on his back, as well as hot packs and cold packs. (Tr. 78).

         Additionally, the intake interview notes from the plaintiff’s application for benefits stated as follows:

Claimant was in significant discomfort/pain during the interview. . . . His left hand was markedly stiff/immobil[e], he could not make a fist and it had the appearance of a prosthetic because it was so pale/stiff in comparison to [the] right hand. [C]laimant spoke very proudly of working hard his entire life and struggled to have to file for disability. [O]n [three] separate occasions during [the] [two]-hour long interview, claimant needed to take a break and stand, take a couple of very stiff/painful steps, then return to [his] seat.

(Tr. 230).

         A vocational expert testified that the plaintiff’s past work as a sales manager and real estate agent were performed at the sedentary level, and could be performed by a person who could occasionally reach overhead with the right dominant arm, occasionally handle items with the left non-dominant hand, frequently climb ramps and stairs, and could frequently balance, kneel, and crouch, occasionally climb ladders, ropes or scaffolds, and occasionally crawl. (Tr. 83-84). If such a person was limited further by occasionally fingering items with the left non-dominant hand, that person would still be able to perform the work of a sales manager, but the number of jobs would be reduced. (Tr. 84). The vocational expert testified that the limitations on handling and fingering would eliminate “a lot of medium jobs[, ]” but such a person could perform light work as a security guard, usher, and parking lot attendant. (Tr. 86).

         III. THE ALJ’S DECISION

         Following the five-step evaluation process, ^[4] the ALJ found that the plaintiff last met the insured status requirements through June 30, 2012 (Tr. 17), and that the plaintiff did not engage in substantial gainful activity during the amended alleged onset date of March 1, 2012 through his date last insured of June 30, 2012. (Tr. 17, citing 20 C.F.R. § 404.1571 et seq.).

         At step two, the ALJ found that, through his date last insured, the plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine, post-laminectomy syndrome, degenerative disc disease of the cervical spine, status post cervical spine discectomy, osteoarthritis of the right shoulder, penritendonitis of the right shoulder, adhesive capsulitis of the right shoulder, stenosing tensovitis of the little finger of the left hand, and status post flexor tendon injuries of the left fingers. (Tr. 18-19, citing 20 C.F.R. § 404.1520(c)). The ALJ concluded at step three that the plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 19-20, citing 20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). Specifically, the ALJ concluded that the claimant’s physical impairments did not meet or medically equal Listings 1.02 (major dysfunction of a joint), 1.04 (disorders of the spine) and 11.14 (peripheral neuropathy).

         The ALJ concluded that the plaintiff had the residual functional capacity [“RFC”] to perform light work, as defined in 20 C.F.R. § 404.1567(b), except he could occasionally reach overhead with his right dominant arm and could occasionally handle, feel and finger items with his left non-dominant hand. (Tr. 21). Additionally, he could frequently climb ramps and stairs, and occasionally climb ladders, ropes and scaffolds; he could frequently balance, kneel, and crouch, and occasionally crawl; and, he could not work at unprotected heights. (Tr. 21). At step four, the ALJ concluded that, through his date last insured, the plaintiff could perform his past relevant work as a sales manager, as that work did not require the performance of work-related activities precluded by the claimant’s RFC. (Tr. 27-28, citing 20 C.F.R. § 404.1565). In the alternative, the ALJ concluded that the plaintiff “acquired work skills from past relevant work that were transferable to other occupations with jobs existing in significant numbers in the national economy.” (Tr. 28, citing 20 C.F.R. §§ 404.1569, 404.1569(a) and 404.1568(d)). The ALJ considered the vocational expert’s testimony that a person of the profile of this plaintiff could have performed the work of an office manager and employment interviewer, with very little, if any, vocational adjustment. (Tr. 28-29). Accordingly, the ALJ concluded that the plaintiff was not under a disability at any time from March 1, 2012, the amended alleged onset date, through June 30, 2012, the date last insured. (Tr. 29, citing 20 C.F.R. § 404.1520(f)).

         IV. STANDARD OF REVIEW

         The scope of review of a Social Security disability determination involves two levels of inquiry. First, the court must decide whether the Commissioner applied the correct legal principles in making the determination. Second, the court must decide whether the determination is supported by substantial evidence. See Balsamo v. Chater,142 F.3d 75, 79 (2d Cir. 1998) (citation omitted). The court may “set aside the Commissioner’s determination that a claimant is not disabled only if the factual findings are not supported by substantial evidence or if the decision is based on legal error.” Burgess v. Astrue,537 F.3d 117, 127 (2d Cir. 2008) (citation & internal quotation marks omitted); see also 42 U.S.C. § 405(g). Substantial evidence is evidence that a reasonable mind would accept as adequate to support a conclusion; it is more than a “mere scintilla.” Richardson v. Perales,402 U.S. 389, 401 (1971) (citation omitted); see Yancey v. Apfel,145 F.3d 106, 111 (2d Cir. 1998) (citation omitted). “The substantial evidence rule also applies to inferences and conclusions that are drawn from findings of fact.” Gonzalez v. Apfel,23 F.Supp.2d 179, 189 (D. Conn. 1998) (citing Rodriguez v. Califano,431 F.Supp. 421, 423 (S.D.N.Y. 1977)). However, the court may not decide facts, reweigh evidence, or substitute its judgment for that of the Commissioner. See Dotson v. Shalala,1 F.3d 571, 577 (7th Cir. 1993) (citation omitted). Instead, the court must scrutinize the entire record to determine the reasonableness of the ALJ’s factual ...