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Milner v. Berryhill

United States District Court, D. Connecticut

October 3, 2019

CERESSE MILNER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE

         In this Social Security appeal, Ceresse Milner (“Milner”) moves to reverse the decision by the Social Security Administration (“SSA”) denying her claim for disability insurance benefits or, in the alternative, to remand the case for additional proceedings. Mot. to Reverse, Doc. No. 21. The Commissioner of the Social Security Administration[1] (“Commissioner”) moves to affirm the decision. Mot. to Affirm, Doc. No. 22. For the reasons set forth below, Milner's Motion to Reverse (doc. 21) is denied and the Commissioner's Motion to Affirm (doc. no. 22) is granted.

         I. Standard of Review

         The SSA follows a five-step process to evaluate disability claims. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). First, the Commissioner determines whether the claimant currently engages in “substantial gainful activity.” Greek v. Colvin, 802 F.3d 370, 373 n.2 (2d Cir. 2015) (per curiam) (citing 20 C.F.R. § 404.1520(b)). Second, if the claimant is not working, the Commissioner determines whether the claimant has a “‘severe' impairment, ” i.e., an impairment that limits his or her ability to do work-related activities (physical or mental). Id. (citing 20 C.F.R. §§ 404.1520(c), 404.1521). Third, if the claimant does have a severe impairment, the Commissioner determines whether the impairment is considered “per se disabling” under SSA regulations. Id. (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). If the impairment is not per se disabling, then, before proceeding to step four, the Commissioner determines the claimant's “residual functional capacity” based on “all the relevant medical and other evidence of record.” Id. (citing 20 C.F.R. §§ 404.1520(a)(4), (e), 404.1545(a)). “Residual functional capacity” is defined as “what the claimant can still do despite the limitations imposed by his [or her] impairment.” Id. Fourth, the Commissioner decides whether the claimant's residual functional capacity allows him or her to return to “past relevant work.” Id. (citing 20 C.F.R. §§ 404.1520(e), (f), 404.1560(b)). Fifth, if the claimant cannot perform past relevant work, the Commissioner determines, “based on the claimant's residual functional capacity, ” whether the claimant can do “other work existing in significant numbers in the national economy.” Id. (20 C.F.R. §§ 404.1520(g), 404.1560(b)). The process is “sequential, ” meaning that a petitioner will be judged disabled only if he or she satisfies all five criteria. See id.

         The claimant bears the ultimate burden to prove that he or she was disabled “throughout the period for which benefits are sought, ” as well as the burden of proof in the first four steps of the inquiry. Id. at 374 (citing 20 C.F.R. § 404.1512(a)); Selian, 708 F.3d at 418. If the claimant passes the first four steps, however, there is a “limited burden shift” to the Commissioner at step five. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). At step five, the Commissioner need only show that “there is work in the national economy that the claimant can do; he need not provide additional evidence of the claimant's residual functional capacity.” Id.

         In reviewing a decision by the Commissioner, I conduct a “plenary review” of the administrative record but do not decide de novo whether a claimant is disabled. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam); see Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam) (“[T]he reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.”). I may reverse the Commissioner's decision “only if it is based upon legal error or if the factual findings are not supported by substantial evidence in the record as a whole.” Greek, 802 F.3d at 374-75. The “substantial evidence” standard is “very deferential, ” but it requires “more than a mere scintilla.” Brault, 683 F.3d at 447-48. Rather, substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Greek, 802 F.3d at 375. Unless the Commissioner relied on an incorrect interpretation of the law, “[i]f there is substantial evidence to support the determination, it must be upheld.” Selian, 708 F.3d at 417.

         II. Facts

         Milner applied for Social Security disability insurance benefits on May 7, 2015, alleging that she has been disabled since June 1, 2014. Disability Benefits App., R. at 211. Milner filed her disability claim based on her history of type one diabetes and mental health disorders. See Disability Determination Explanation, R. at 109.

         The SSA initially denied Milner's claim on July 27, 2015, finding that although Milner's “condition results in some limitations in [her] ability to perform work related activities . . . . We have determined that [her] condition is not severe enough to keep [her] from working . . . . [B]ased on the evidence in file, we have determined that [Milner] can adjust to other work.” Id. at 121. In the agency's view, Milner was not disabled. Id. Milner sought reconsideration, but the SSA adhered to its initial decision on November 1, 2015. Disability Determination Explanation (Reconsideration), R. at 135-36.

         Milner requested a hearing before an Administrative Law Judge (“ALJ”), which was held on September 29, 2016. See Tr. of ALJ Hr'g, R. at 32. At the time of the hearing, Milner was 27 years old and her highest level of education was high school. See Id. at 41-42. During the hearing, ALJ Eric Eklund questioned Milner regarding her employment and medical history. Id. at 45. He first asked Milner about her current employment. Milner stated that she currently works around twenty hours a week, working part-time as a food demonstrator at Costco and a cashier at Taco Bell. See id. at 45-47. When asked what was the “biggest problem” she faces at work, Milner testified that she has difficulty working for prolonged periods because she sometimes feels like she is “about to pass out” when “[her] [blood] sugar is just like out of control.” Id. at 48. She also noted that she occasionally has knee pain from an injury she suffered when she was in 9th grade. Id.

         ALJ Eklund inquired more about Milner's symptoms relating to her diabetes. Id. at 51. Milner testified that she has trouble working because “sometimes it feels like [her] feet are on fire” due to poor circulation. Id. She also stated that her diabetic neuropathy affects her ability to sit, stand, and walk. Id. at 50. “The longest that I can stand is probably like a half an hour . . . . So I try and sit down whenever I can.” Id. at 53. Milner repeated noted that she has trouble controlling her blood sugar levels. See Id. at 52. “Even when I was in the hospital, when I was pregnant with my daughter . . . they couldn't control my [blood] sugars.” Id.

         Regarding Milner's mental health, ALJ Eklund asked Milner about her history of depression, anxiety, and post-traumatic stress disorder (“PTSD”). Id. at 54. Milner noted that she is taking medication to control her depression, but “[hasn't] had to leave work” because of it. Id. She also testified that oftentimes her anxiety makes it difficult for her to function at work because she gets “irritated and annoyed a lot.” Id. at 56. Milner stated that her PTSD is directly related to recently losing custody of her children. Id. at 57.

         Finally, ALJ Eklund questioned Milner about her lifestyle. Milner testified that she currently lives with her step-bother, who does most of the house chores and grocery shopping. Id. at 58. Milner occasionally cooks and reported having no problems showering or bathing. Id. at 59. She testified that the most challengingly part of her life is “moving around [and] getting to places that [she] need[s] to go.” Id. at 62.

         ALJ Eklund then called a vocational expert, Elaine Cogliano (“Cogliano”). Id. at 65. The parties reviewed Milner's past work history, which includes retail employment at Radio Shack, Target, and working as a sous chef at Holiday Inn. See Id. at 66-69. ALJ Eklund asked Cogliano to “assume a hypothetical individual” of Milner's age, education, and work experience. Id. at 71. He asked Cogliano to assume further that the individual was limited to light work and only “occasionally climb[s] ladders, ropes, or scaffolds” and “occasional[ly] [climbs] ramps and stairs.” Id. In addition, the hypothetical individual would be limited to “simple, unskilled work, only occasional interaction with the public, only occasional interaction with co-workers, no tandem tasks, [and] only occasional supervision.” Id.

         Cogliano opined that “[a]ccording to that hypothetical, the individual would not be able to perform past work, but could do other work in the local or national economy.” Id. The “other work” Cogliano identified included: (1) a “packaging position, ” with 65, 000 jobs available nationally, (2) an “inspector position, ” with 58, 000 jobs available nationally, and (3) an “office helper position, ” with 75, 000 jobs available nationally. Id. When the ALJ classified the hypothetical person as “sedentary, ” Cogliano opined that the packing and inspector positions would remain available, [2] in addition to a “sorter position, ” with 40, 000 jobs available in the national economy. Id. at 72. Finally, ALJ Eklund asked Cogliano that if the hypothetical person “would require frequent unscheduled breaks, would miss three days of work per month, [and] would be off task up to 15% of the workday . . . what affect would that have on the ability to work?” Id. Cogliano responded that “[a]ccording to that hypothetical, the person would not be employable. There would be no jobs they could perform.” Id.

         On June 21, 2017, ALJ Eklund issued a written opinion, finding that Milner “ha[d] not been under a disability defined in the Social Security Act, from June 1, 2014, through the date of this decision[.]” ALJ Decision, R. at 25. At the first step, ALJ Eklund found that “[t]here has been a continuous 12-month period [] during which Milner did not engage in substantial gainful activity.” Id. at 14. At the second step, he determined that within the past year, Milner had the following severe impairments: depressive/dysthymic disorder, anxiety disorder, personality disorder, PTSD, type one diabetes mellitus with neuropathy, and recurrent muscle spasms. Id. ALJ Eklund noted that “[t]he above medically determinable impairments significantly limit [Milner's] ability to perform basic work activities.” Id. At the third step, ALJ Eklund determined that Milner's impairments were not per se disabling because Milner “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments[.]” Id.

         Regarding Milner's physical impairments, ALJ Eklund found “insufficient support” in the record to establish that Milner's type one diabetes rose to the level of a per se disabling severe impairment as defined under the SSA's regulations.[3] Id. at 15. He noted that “[w]hile [Milner] does suffer from diabetes mellitus, this is a longitudinal condition dating back to age nine, which the claimant has managed for a number of years. Although her blood sugars are still occasionally poorly controlled, this occurs only rarely, and in the context of failing to take insulin for a few days.” Id. at 20.

         Regarding Milner's mental impairments, ALJ Eklund found that she has a “moderate limitation” in “understanding, remembering, or applying information” and “interacting with others.” Id. at 15. “Subjectively, [Milner] alleges that she spends no time with others and that certain things may get on her nerves . . . During the regular course of treatment, [Milner] consistently presents as pleasant and cooperative, with no specific interpersonal deficits noted.” Id.

         At step four, ALJ Eklund assessed Milner's residual functional capacity (“RFC”) and found that she could “perform light work . . . except she could occasionally climb ladders, ropes, scaffolds, ramps, and stairs” and “occasionally crawl . . . [and] occasionally operate foot controls.” Id. at 16. Milner would be further limited to “simple, unskilled work, ” where “she could have only occasional interaction with the public, co-workers, and supervisors” and “could not perform tandem tasks.” Id. In addition, Milner would be limited to “no exposure to extreme cold, moving machinery on the work floor, or unprotected heights.” Id.

         Although Milner's RFC rendered her “unable to perform any past relevant work, ” ALJ Eklund determined that considering Milner's “age, education, work experience, and [RFC], there are jobs that exist in significant numbers in the national economy that [Milner] [could] perform.” Id. at 23-24. Therefore, ALJ Eklund concluded that Milner “ha[d] not been under a disability, as defined in the Social Security Act, from June 1, 2014, through the date of this decision.” Id. at 25.

         Milner requested a review of the ALJ's decision by the SSA's Appeals Council on August 13, 2017. See Request for Review of Hearing Decision, R. at 210. By letter dated June 1, 2018, the Appeals Council denied Milner's request for review, stating that “[w]e found no reasons under our rules to review the Administrative Law Judge's decision. Therefore, we have denied your request for review.” Appeals Council Denial, R. at 1. Milner, filed a complaint with this court on August 1, ...


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