United States District Court, D. Connecticut
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 ...