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Bernier v. Sual

United States District Court, D. Connecticut

October 18, 2019



          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”] and Supplemental Security Income benefits [“SSI”].


         On July 31, 2015, the plaintiff filed an application for SSI and SSDI, claiming that he has been disabled since November 17, 2014, due to diabetes, asthma, high cholesterol, and a back problem. (Certified Transcript of Administrative Proceedings, dated November 10, 2018 [“Tr.”] 191-206; see Tr. 58). The plaintiff's applications were denied initially and upon reconsideration (Tr. 99-102, 111-28, 146-49; see Tr. 58-97), and on September 29, 2017, a hearing was held before ALJ Deirdre Horton, at which the plaintiff and a vocational expert testified. (Tr. 34-57). On July 11, 2017, the ALJ issued an unfavorable decision denying the plaintiff's claim for benefits. (Tr. 17-29). On August 9, 2018, the Appeals Council denied the request, thereby rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-5).

         On September 28, 2018, the plaintiff filed his complaint in this pending action (Doc. No. 1), and on December 27, 2019, the parties consented to the jurisdiction of a United States Magistrate Judge. (Doc. No. 16). This case was transferred accordingly. On February 1, 2019, the plaintiff filed his Motion to Reverse the Decision of the Commissioner (Doc. No. 17), with a brief (Doc. No. 17-1 [“Pl.'s Mem.”]), exhibits (Doc. Nos. 17-2, 17-3), and Statement of Material Facts (Doc. 17-4) in support. On May 20, 2019, the defendant filed his Motion to Affirm (Doc. No. 20), with a brief in support (Doc. No. 20-1 [“Def.'s Mem.”]).

         For the reasons stated below, the plaintiff's Motion to Reverse the Decision of the Commissioner (Doc. No. 17) is denied, and the defendant's Motion to Affirm (Doc. No. 20) is granted.


         On the date of the hearing, the plaintiff was sixty-two years old, living alone in an apartment. (Tr. 38). The plaintiff completed his General Equivalency Diploma [“GED”] ¶ 1971. (Tr. 230). He is a veteran; he received medical care through the Veteran's Administration at the Veteran's Medical Center in West Haven, Connecticut [“VA”]. (Tr. 40-41; see also Tr. 259, 268). The plaintiff suffered from asthma; he smoked “at least a pack a day[, ]” and he had “constant” back pain that he described as “throbbing” and, at times, “sharp[]” but “not as severe[, ]” and “not as bad[ ]” as the pain he had when he was bending. (Tr. 41, 51-52; see Tr. 928 (smoked one pack a day since age 17; “not interested in cutting back right now”)).

         At the time of the hearing, the plaintiff was working part-time, four hours a day, doing janitorial work through a job training program for people age 55 and older. (Tr. 43, 45-46). He reported that he had that job since November 2014 (Tr. 44); his employer knew he had back problems, so he allowed him to stop and rest every hour or so. (Tr. 44). Prior to working as a janitor, he worked at Walmart and for a company called United Furniture, both full-time, performing maintenance and janitorial work. (Tr. 46, 49-50). The plaintiff testified that, at the time of the hearing, he could no longer do that work because it involved too much bending. (Tr. 51). Additionally, the plaintiff worked as a tractor trailer driver, driving “all over the United States and Canada[, ]” but lost his license after receiving “too many” speeding tickets because his boss “wouldn't fix the speedometer.” (Tr. 39, 47, 51; see Tr. 239). When he was not working, the plaintiff “mostly [sat] and watch[ed] TV[, ]” he cooked his own meals, mostly in the microwave, and he cleaned his apartment. (Tr. 45; see Tr. 240).

         A vocational expert testified by telephone that the plaintiff's past work as a tractor trailer driver was “medium” work, his work as a janitor was “heavy” work, and his work as a cleaner, which is usually classified as “heavy” work, was performed at a level “less than light.” (Tr. 54 (vocational expert's testimony that the plaintiff's description of his janitorial work is “actually . . .-well, less than light” as he was lifting less than ten pounds, “but [janitorial work is] classified as heavy.”); see Tr. 27 (ALJ recited: “As he currently works, the janitorial job may, per the vocational testimony, sometimes be less than light.”)). The vocational expert testified that a person limited to medium work but with the ability to frequently climb ramps and stairs, occasionally climb ladders and scaffolds, frequently balance, stoop, kneel or crouch, occasionally crawl, and avoid concentrated exposures to temperature extremes, humidity, vibrations and respiratory irritants, could perform jobs as a laundry worker, dishwasher, and lumber sorter. (Tr. 54-55).


         Following the five-step evaluation process, [2] the ALJ found that the plaintiff meets the insured status requirements through March 31, 2020 (Tr. 22), and that the plaintiff did not engage in substantial gainful activity since his alleged onset date of November 17, 2014. (Tr. 22-23, citing 20 C.F.R. §§ 404.1571 et seq. and 416.971 et seq.).

         At step two, the ALJ found that the plaintiff had the following severe impairments: mild osteoarthritis in his lumbar spine; chronic obstructive pulmonary diseases [“COPD”], and obesity. (Tr. 23-24, citing 20 C.F.R. §§ 404.1520(c) and 416.920(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 one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926. (Tr. 26-27). The ALJ concluded that the plaintiff had the residual functional capacity [“RFC”] to perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), with the ability to frequently climb ramps and stairs; occasionally climb ladders, ropes and scaffolds; frequently balance, stoop, kneel and crouch; and, occasionally crawl. (Tr. 25). Additionally, the ALJ found that the plaintiff must avoid concentrated exposure to temperature extremes, humidity, vibration, respiratory irritants such as dusts, fumes, gases and odors, and he must avoid hazardous machinery defined as fast moving parts and unprotected heights. (Tr. 25). At step four, the ALJ concluded that the plaintiff was unable to perform any past relevant work, and at step five, the ALJ found that the plaintiff could perform work as a “[l]aundry worker[, ]” “[d]ishwasher, ” and “[l]umb[e]r sorter, ” which jobs exist in substantial numbers and “match the [plaintiff's] individual profile.” (Tr. 28). Accordingly, the ALJ concluded that the plaintiff was not under a disability at any time from November 17, 2014, through July 11, 2017, the date of the decision. (Tr. 29, citing 20 C.F.R. §§ 404.1520(f) and 416.920(f)).


         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) (internal quotation marks & citation 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 ...

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