Bezerra v. Comm'r of Soc. Sec.

KLEBBER A. BEZERRA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Civil Action No. 20 Civ. 4303 (SLC)

United States District Court, S.D. New York

September 16, 2021

OPINION & ORDER

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

Plaintiff Klebber A. Bezerra (“Mr. Bezerra”) commenced this action pursuant to Section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g). (ECF No. 1). He seeks review of the decision by the Commissioner (the “Commissioner”) of the Social Security Administration (“SSA”), denying his September 2015 application for Disability Insurance Benefits (“DIB”) under the Act. (Id.) Mr. Bezerra contends that the decision of the Administrative Law Judge (“ALJ”), dated August 17, 2018 (the “ALJ Decision”), was “erroneous, not supported by substantial evidence in the record, and/or contrary to law ” and asks the Court to grant him the monthly maximum insurance benefits or, in the alternative, to remand for a new hearing to reconsider the evidence. (Id. ¶¶ 7, 10; Wherefore Clause (c)).

The parties have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On March 11, 2021, Mr. Bezerra filed his motion for judgment on the pleadings (ECF No. 24) (“Mr. Bezerra's Motion”), on July 1, 2021, the Commissioner cross-moved (ECF No. 30) (the “Commissioner's Motion” together with Mr. Bezerra's Motion, the “Motions”)), and on July 22, 2021, Mr. Bezerra filed his reply (the “Reply” (ECF No. 32)). For the reasons set forth below, Mr. Bezerra's Motion is DENIED and the Commissioner's Motion is GRANTED.

II. BACKGROUND

A. Procedural History

On September 22, 2015, Mr. Bezerra filed an application for DIB, ^[1] claiming he had been unable to work since September 24, 2013 (the “Onset Date”) due to work-related injuries to his shoulders, back, hips, right foot, and right ankle. (SSA Administrative Record (“R.”) 37, 59-60 (ECF Nos. 19-19-3)). On December 17, 2015, the SSA denied Ms. Bezerra's application, finding that he was not disabled. (R. 68-69). On April 7, 2016, Mr. Bezerra requested a hearing before an ALJ. (R. 89-90). On June 26, 2018, he appeared before ALJ JuanCarlos Hunt for an evidentiary hearing (the “Hearing”). (R. 27-58). A vocational expert (“VE”) also testified. (R. 50-55).

On August 17, 2018, ALJ Hunt found that Mr. Bezerra was not disabled under the Act. (R. 11-25). Although he found that Mr. Bezerra had three severe impairments-degenerative joint disease of the shoulder and hip, and degenerative disc disease-ALJ Hunt concluded that the severity of these impairments did not meet or medically equal the requisite criteria for finding a disability, and that Mr. Bezerra had the residual functional capacity (“RFC”) to perform past relevant work. (R. 14-22). On October 2, 2018, Mr. Bezerra filed a request with the SSA Appeals Council for review of the ALJ Decision. (R. 188-90; see R. 248-50). On April 6, 2020, the Appeals Council denied Mr. Bezerra's request. (R. 1-5).

On June 5, 2020, Mr. Bezerra filed a Complaint in this Court challenging the ALJ Decision. (ECF No. 1). In his Motion, Mr. Bezerra argues that ALJ Hunt “failed to properly apply the treating physician rule.” (ECF No. 25 at 14-18 (capitalization omitted)).^[2] The Commissioner argues that the ALJ Decision “is legally correct and supported by substantial evidence.” (ECF No. 31 at 20-29 (capitalization omitted)).

B. Factual Background

1. Non-medical evidence

Mr. Bezerra was born in 1975 and was 37 years old on the Onset Date. (R. 59). He has a high school education and is right-handed. (R. 35-37). Mr. Bezerra worked as a hotel receptionist from 1999 to 2003, and as a waiter from 2004 to 2007. (R. 202; see R. 38-39). In 2008, Mr. Bezerra began working as a flight attendant for Delta. (R. 38).

2. Medical evidence

Mr. Bezerra and the Commissioner have both provided largely consistent summaries of the medical evidence in the Record. (See ECF Nos. 25 at 7-11; 31 at 7-19). Accordingly, the Court adopts the parties' summaries of the medical evidence as accurate and complete, and references the pertinent Record evidence for purposes of analyzing the Motions. (See infra § III.B.1-3).

C. Administrative Proceedings

1. Hearing before the ALJ

On June 26, 2018, Mr. Bezerra was represented by counsel at the Hearing before ALJ Hunt. (R. 27-58).

Mr. Bezerra testified that, in September 2013, while working as a flight attendant, he was injured when two beverage carts “crushed [him] against the cockpit door and the galley counter.” (R. 37, 40). Mr. Bezerra was further injured when he “stowed [the carts] in the proper way, ” causing “injury to [his] groin, [his] right foot, ankle and knee and both hands, both shoulders, and [his] back.” (R. 40). Mr. Bezerra confirmed that he had surgery on his hip in April 2016, after which he was on crutches for six weeks and then “used a small cane for two more weeks after the crutches.” (R. 40, 45-46). He said he was prescribed “Percocet and then Tramadol, ” but, within six months of the surgery, he “didn't have to take medication” and did so “only when it was extremely painful.” (R. 46).^[3] He testified that he “had a second surgery on [his] left hip, which showed some improvement, ” and that “physical therapy to that specific area” had “allowed [him] to walk again properly.” (R. 41).^[4] Mr. Bezerra confirmed that “[a]ll of [his] treatment [was] through New York Worker's Compensation.” (R. 41). He also confirmed that, as of the date of the Hearing, he was “cleared to return to work” and was “planning on going back as a flight attendant.” (R. 42). When asked if Delta had “rehired” him, Mr. Bezerra responded, “I never lost my job, ” and confirmed that “Delta [was] putting [him] back on schedule.” (R. 42).

When asked to describe what “a typical day” was like for him “in the middle of 2017, ” Mr. Bezerra said he “had to deal with severe pain” but was able to cook for himself, shop for groceries, and had no trouble taking public transit to and from his medical appointments. (R. 44- 45). He said he was unable to “practice any sport” and that he did not “ride bikes, ” “roller skate, ” or “take long walks, ” and that he would spend his days at “home reading and studying and trying to watch videos that Delta demands us to watch when we are getting ready to go back to work.” (R. 46-47).

Mr. Bezerra's attorney asked him to explain why, during the relevant time period, he was unable to perform work “where [he was] seated at a desk.” (R. 43). Mr. Bezerra said, “because of [his] condition, it is very hard for [him] to remain seated or stand up for a long time” and that he did not “know what kind of job that [sic] could accommodate that.” (R. 43). When asked if he “ever consider[ed] a lighter duty job” at Delta, Mr. Bezerra said, “I would, but then still I liked this job” and “it was a position that would accommodate me.” (R. 47). Counsel then asked Mr. Bezerra whether, “[i]n the middle of 2016 or six months after [his first] hip surgery, ” he could have performed “the job where someone sits behind a desk in an airport and answers questions to the customers, saying the flight is delayed, [or] you're in terminal 6 . . . .” (R. 47). Mr. Bezerra responded, “I don't know, I think I could, if there [sic] would not be mandatory to just remain seated or standing up.” (R. 47). Mr. Bezerra estimated that he needed to “go from sitting to standing” roughly every 20 to 30 minutes. (R. 48).

Regarding his left shoulder impairment during the relevant time period, Mr. Bezerra testified that he would have “difficulties” when “lifting extremely heavy object[s].” (R. 48).

A VE, Bassey A. Duke, also testified at the Hearing. (R. 50-55). Mr. Duke classified Mr. Bezerra's past work as: (i) waiter (Dictionary of Occupational Titles (“DOT”) code 311.477-030), a “light work” category position; (ii) flight attendant (DOT code 352.367-010, a “medium work” category position; and (ii) receptionist (DOT code 237.367-038), a “sedentary work” category position. (R. 53). The ALJ then asked Mr. Bassey to “assume a hypothetical person [with] the same work experience, age, education and professional profile” of Mr. Bezerra and who “can perform sedentary work, except [for] the following limitations: occasionally can kneel, stoop, crouch, crawl and climb ramps, stairs, ladders and scaffolds; [and] frequently can push and pull and reach overhead with the left upper extremity.” (R 53-54). Mr. Bassey confirmed that such a person could perform Mr. Bezerra's past work as a receptionist. (R. 54). The ALJ then asked whether the same person could perform the job of receptionist with the following additional limitations: “occasionally can push and pull and reach overhead with the left upper extremity; [and] needs to alternate between sitting and standing every hour during which time can remain on task.” The VE confirmed a person with these physical limitations could perform the job of receptionist. (R. 54). As a third hypothetical, the ALJ added one additional limitation-“the person needs to alternate between sitting and standing every 30 minutes during which time [he] will be off task [for] five minutes an hour”-and asked whether such a person could perform the job of receptionist. (R. 54). Mr. Bassey opined that a person with these limitations could not perform the job of receptionist, because “[b]eing off task at least five minutes each hour” would “be excessive.” (R. 54). Mr. Bassey clarified that a person who needs to alternate between sitting and standing every 30 minutes could perform the job of receptionist, provided they could remain on task during that time. (R. 55).

2. The ALJ Decision

On August 17, 2018, ALJ Hunt denied Mr. Bezerra's application for DIB benefits. (...