Kazlauskas v. Berryhill

          MEMORANDUM OF DECISION

          KARI A. DOOLEY UNITED STATES DISTRICT JUDGE

         The Plaintiff, Vitas Kazlauskas, (the “Plaintiff”) brings this administrative appeal pursuant to 42 U.S.C. § 405(g). He appeals the decision of defendant Nancy A. Berryhill, acting Commissioner of the Social Security Administration, (the “Commissioner”) denying his applications for disability insurance and supplemental security income benefits pursuant to Title II and Title XVI of the Social Security Act (the “Act”). The Plaintiff moves to reverse the Commissioner’s decision because the administrative law judge failed to account for his severe physical impairments adequately, misidentified his past relevant work, and incorrectly concluded that there is work in the national economy that he can perform. Conversely, the Commissioner asserts that the ALJ’s decision is fully supported by substantial evidence in the record and she seeks an order affirming the decision of the ALJ. For the reasons set forth below, the Plaintiff’s Motion to Reverse [ECF No. 26] is DENIED and the Commissioner’s Motion to Affirm [ECF No. 27] is GRANTED.

         Standard of Review

         It is well-settled that a district court will reverse the decision of the Commissioner 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. Bonet ex rel. T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013). Substantial evidence can support the Commissioner’s findings even if there is the potential for drawing more than one conclusion from the record. See Vance v. Berryhill, 860 F.3d 1114, 1120 (8th Cir. 2017). The court can reject the Commissioner’s findings of facts “only if a reasonable factfinder would have to conclude otherwise.” Brault v. Social Sec. Admin. 683 F.3d 443, 448 (2d Cir. 2012). Stated simply, “if there is substantial evidence to support the [Commissioner’s] determination, it must be upheld.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013).

         Factual and Procedural History

         On March 27, 2015, the Plaintiff filed applications for disability insurance and supplemental security income benefits pursuant to Title II and Title XVI of the Act, alleging an onset date of March 15, 2013. The claim was denied initially on October 1, 2015 and upon reconsideration on January 15, 2016. Thereafter, a hearing was held before an ALJ on June 21, 2017. On August 7, 2017, the ALJ issued a written decision denying the Plaintiff’s applications.

         In his decision, the ALJ followed the sequential evaluation process for assessing disability claims.^[1] At Step 1, the ALJ found that the Plaintiff had not been engaged in substantial gainful activity since the claimed onset date. At Step 2, the ALJ determined that the Plaintiff has multiple severe impairments, which included bilateral hearing loss with tinnitus, major depressive disorder, and generalized anxiety disorder. At Step 3, the ALJ concluded that the Plaintiff does not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in Appendix 1. At Step 4, the ALJ concluded that the Plaintiff has a residual functional capacity (“RFC”) to perform medium work, subject to certain limitations. The ALJ further found that the Plaintiff has the RFC to perform his past relevant work as a Miller I. At Step 5, the ALJ further concluded that there are significant number of jobs in the national economy that the Plaintiff could perform in addition to his past relevant work. As a result, the ALJ found that the Plaintiff was not disabled within the meaning of the Act. This appeal followed.

         Discussion

         The Plaintiff challenges the ALJ’s analysis at Steps 2, 4, and 5. First, the Plaintiff argues that the ALJ erred in finding that his knee and shoulder impairments were not severe and by not determining his pain level from these impairments. Next, the Plaintiff argues that the ALJ erred in his RFC determination because he did not adequately account for his physical impairments, his communication limitations due to his hearing loss and tinnitus, the frequency of his likely off-task behavior, and his difficulties interacting with the public stemming from his mental health impairments. Finally, the Plaintiff argues that the ALJ misidentified his past relevant work and that he further cannot perform the medium-work jobs identified by the ALJ at Step 5.

         The Commissioner responds that the ALJ’s decision at each of these steps is supported by substantial evidence in the record. Specifically, the Commissioner asserts that the Plaintiff’s physical impairments, aside from his hearing impairment, are not severe because they do not significantly limit the Plaintiff’s basic work activities. Moreover, even if the ALJ erred by not finding these impairments to be severe, this error was harmless because the ALJ expressly considered these impairments in his RFC determination and the ALJ’s RFC determination is otherwise supported by substantial evidence in the record. Finally, the Commissioner disclaims any error in the ALJ’s identification of the Plaintiff’s past relevant work as Miller I and further contends that, even if this was error, it was harmless because the ALJ identified multiple jobs that the Plaintiff could perform in the national economy at Step 5.

         Step 2 - “Severe” Impairments

         The Court need not determine whether the Plaintiff’s physical impairments to his knee or shoulder were “severe” because any error in this regard is harmless. At Step Two, if the ALJ finds any impairment to be severe, “the question [of] whether the ALJ characterized any other alleged impairment as severe or not severe is of little consequence.” Jones-Reid v. Astrue, 934 F.Supp.2d 381, 402 (D. Conn. 2012) (quoting Pompa v. Comm’r of Soc. Sec., 73 Fed.Appx. 801, 803 (6th Cir. 2003)), aff’d, 515 Fed.Appx. 32 (2d Cir. 2013) (summary order). “Under the regulations, once the ALJ determines that a claimant has at least one severe impairment, the ALJ must consider all impairments, severe and non-severe, in the remaining steps.” Pompa, 73 Fed.Appx. at 803 (citing 20 C.F.R. § 404.1545(e)). Therefore, where the ALJ considers all impairments at later stages of the analysis, failure to find a particular impairment “severe” at Step Two, even if error, is harmless error. Rivera v. Colvin, 592 Fed.Appx. 32, 33 (2d Cir. 2015) (summary order) (“even assuming that the ALJ erred at Step Two, this error was harmless, as the ALJ considered both Rivera’s severe and non-severe impairments as he worked through the later steps”); Reices-Colon v. Astrue, 523 Fed.Appx. 796, 798 (2d Cir. 2013) (summary order) (“Because these [non-severe] conditions were considered during the subsequent steps, any error was harmless.”).

         Here, the ALJ fully considered the Plaintiff’s knee or shoulder impairments in reaching his determination as to the Plaintiff’s RFC. When explaining his RFC determination, the ALJ specifically noted that the Plaintiff felt he could not work “due to his mental illness and his history of left hip replacement surgery, right shoulder surgery and the osteoarthritis in his right knee.” (R. 17) (emphasis added). The ALJ considered that the Plaintiff “reported that walking down stairs was more painful for him than climbing stairs and he tried to walk on level ground. He stated his hip felt like it was going to pop out and his right shoulder made a gruesome noise.” (Id.) The ALJ also considered the Plaintiff’s testimony regarding his ability to walk, the weight he could lift, and the impact of sitting or standing for too long on his legs. (Id.) Following a discussion of all of these and other issues, the ALJ concluded that the Plaintiff’s medically determinable impairments, which clearly included his knee and shoulder, could reasonably be expected to cause the alleged symptoms, but that the Plaintiff’s statements regarding the intensity, persistence, and limiting effects of these symptoms were “not entirely consistent with the medical evidence and other evidence in the record. . . .” (R. 18.) In assessing the Plaintiff’s testimony, the ALJ noted that the pain management reports from the United States Department of Veteran Affairs reflect that the Plaintiff was working out regularly and controlling his pain with over the counter medications. The Plaintiff further reported to treatment providers that exercise alleviated his symptoms, and the providers noted that the Plaintiff was meeting his treatment goals.

         A review of the record and the ALJ decision make manifest that the ALJ considered the knee and shoulder impairments when determining the Plaintiff’s RFC. Even if these impairments might be considered ...