Hartl v. Comm'r of Soc. Sec.

Tina M. Hartl, Plaintiff, v. Commissioner of Social Security, Defendant.

18-CV-1313 HBS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 13, 2020

Decision and Order

(Consent)

I. INTRODUCTION

The parties have consented to this Court's jurisdiction under 28 U.S.C. § 636(c). The Court has reviewed the Certified Administrative Record in this case (Dkt. No. 8, pages hereafter cited in brackets), and familiarity is presumed. This case comes before the Court on cross-motions for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. Nos. 9, 12.) In short, plaintiff is challenging the final decision of the Commissioner of Social Security (the "Commissioner") that she was not entitled to Disability Insurance Benefits under Title II of the Social Security Act. The Court has deemed the motions submitted on papers under Rule 78(b).

II. DISCUSSION

"The scope of review of a disability determination . . . involves two levels of inquiry. We must first decide whether HHS applied the correct legal principles in making the determination. We must then decide whether the determination is supported by substantial evidence." Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987) (internal quotation marks and citations omitted). When a district court reviews a denial of benefits, the Commissioner's findings as to any fact, if supported by substantial evidence, shall be conclusive. 42 U.S.C. § 405(g). Substantial evidence is defined as "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Tejada v. Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999).

The substantial evidence standard applies to both findings on basic evidentiary facts, and to inferences and conclusions drawn from the facts. Stupakevich v. Chater, 907 F. Supp. 632, 637 (E.D.N.Y. 1995); Smith v. Shalala, 856 F. Supp. 118, 121 (E.D.N.Y. 1994). When reviewing a Commissioner's decision, the court must determine whether "the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached" by the Commissioner. Winkelsas v. Apfel, No. 99-CV-0098H, 2000 WL 575513, at *2 (W.D.N.Y. Feb. 14, 2000). In assessing the substantiality of evidence, the Court must consider evidence that detracts from the Commissioner's decision, as well as evidence that supports it. Briggs v. Callahan, 139 F.3d 606, 608 (8th Cir. 1998). The Court may not reverse the Commissioner merely because substantial evidence would have supported the opposite conclusion. Id. "The substantial evidence standard means once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks and citations omitted).

For purposes of Social Security disability insurance benefits, a person is disabled when unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A).

Such a disability will be found to exist only if an individual's "physical or mental impairment or impairments are of such severity that [he or she] is not only unable to do [his or her] previouswork but cannot, considering [his or her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C. §§ 423(d) (2)(A) & 1382c(a)(3)(B).

Plaintiff bears the initial burden of showing that the claimed impairments will prevent a return to any previous type of employment. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Once this burden has been met, "the burden shifts to the [Commissioner] to prove the existence of alternative substantial gainful work which exists in the national economy and which the plaintiff could perform." Id.; see also Dumas v. Schweiker, 712 F.2d 1545, 1551 (2d Cir. 1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).

To determine whether any plaintiff is suffering from a disability, the Administrative Law Judge ("ALJ") must employ a five-step inquiry:

(1) whether the plaintiff is currently working;

(2) whether the plaintiff suffers from a severe impairment;

(3) whether the impairment is listed in Appendix 1 of the relevant regulations;

(4) whether the impairment prevents the plaintiff from continuing past relevant work; and

(5) whether the impairment prevents the plaintiff from continuing past relevant work; and whether the impairment prevents the plaintiff from doing any kind of work.

20 C.F.R. §§ 404.1520 & 416.920; Berry, supra, 675 F.2d at 467. If a plaintiff is found to be either disabled or not disabled at any step in this sequential inquiry then the ALJ's review ends. 20 C.F.R. §§ 404.1520(a) & 416.920(a); Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). However, the ALJ has an affirmative duty to develop the record. Gold v. Secretary, 463 F.2d 38, 43 (2d Cir. 1972).

To determine whether an admitted impairment prevents a plaintiff from performing past work, the ALJ is required to review the plaintiff's residual functional capacity ("RFC") and thephysical and mental demands of the work done in the past. 20 C.F.R. §§ 404.1520(e) & 416.920(e). The ALJ must then determine the individual's ability to return to past relevant work given the RFC. Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir. 1994).

Plaintiff challenges the ALJ's determination that plaintiff could perform light work with restrictions. The ALJ found that plaintiff had the following severe impairments: "right-side cubital tunnel syndrome, right elbow epicondylosis, right shoulder degenerative joint disease—status post February 2014 surgery, degenerative disc disease of the cervical spine—status post February 2015 fusion, L5 lumbar listhesis, degenerative disc disease of the lumbar spine, chronic obstructive pulmonary disease ('COPD'), a depressive disorder, and an anxiety disorder (20 CFR 404.1520(c))." [17.] After considering the entire record, the ALJ crafted the following RFC, reprinted here in full:

The claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b), because the claimant is able to lift and carry twenty pounds occasionally and ten pounds frequently, stand and/or walk for six hours in an eight-hour workday, and sit for six hours in an eight-hour workday. The claimant is occasionally able to use her right upper extremity to operate hand controls and reach overhead, and she is able to frequently use her right upper extremity to finger and handle objects. Although the claimant is unable to crawl or climb ladders, ropes, and scaffolds, she is able to occasionally balance, stoop, kneel, crouch, and climb ramps and stairs. The claimant is unable to tolerate excessive vibration and exposure to workplace hazards such as unprotected heights and moving machinery, and she must avoid concentrated exposure to pulmonary irritants such as odors, fumes, dusts, gases, and poor ventilation. In addition, the claimant is limited to work that does not require travel to unfamiliar places.

[21.] Plaintiff objects that the record does not provide a basis for an RFC with the level of exertion and with the details that the ALJ found; the ALJ, in her view, simultaneously downplays her severe anxiety and depression:

In the instant matter, the ALJ found Plaintiff had the RFC to perform the lifting, carrying, standing, and walking necessary for light exertional work. Tr. 16. However, the decision failed to point to evidence to support this determination. From the onset of her disability throughout the relevant period, claimant has suffered from significant impairments of her dominant right upper extremity. She underwent shoulder surgery on February 3, 2014 and afterwards attended multiplecourses of physical and occupational therapy, however, the record shows her right upper extremity impairments did not resolve. Notably, x-rays of Plaintiff's cervical spine, performed a year after her shoulder surgery, on March 2, 2015, showed widening of the right acromioclavicular joint, which suggested chronic abnormality. Tr. 645. This finding is consistent with Plaintiff's ongoing complaints of right upper extremity pain and symptoms. An April 12, 2016 occupational therapy evaluation identified functional limitations including difficulty gripping, grasping, lifting and carrying objects, and opening and twisting objects. Tr. 701. Additionally, Plaintiff consistently reported to her treatment providers having increased pain and symptoms with lifting objects, or having sustained injuries related to lifting. Tr. 338, 431, 442, 705, 720. She reported increased upper extremity pain with activity on many occasions. Tr. 277, 281, 590, 596, 678, 686, 829, 833, 859. The record indicated additional upper extremity surgery was considered but not performed because the surgeon was uncertain it would improve Plaintiff's symptoms. Tr. 630, 717. Although the ALJ implied a limitation to light work would accommodate Plaintiff's upper extremity symptoms, he does not point to any record evidence to support that she would be capable of lifting 10 pounds frequently or 20 pounds occasionally, let alone that she did not have limitations reaching (other than overhead). Tr. 20-21.

The decision also contains no discussion of how Plaintiff's limitations from her impairments would allow her to stand and walk for 6 out of 8 hours in a day, as is required for light work. 20 C.F.R. 404.1567(b); Social Security Ruling 96-8p. Tr. 16. Although the ALJ found Plaintiff did not require a cane to ambulate (Tr. 20), the record supports her testimony that she

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