Mangual v. Comm'r of Soc. Sec.

600 F.Supp.3d 313

Marisol MANGUAL, Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

20 Civ. 7526 (GWG)

United States District Court, S.D. New York.

Signed April 28, 2022

Annemarie Caruso, The Legal Aid Society, Bronx, NY, for Plaintiff.

Leslie A. Ramirez-Fisher, United States Attorney's Office, New York, NY, for Defendant.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge

Plaintiff Marisol Mangual brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act (the "Act"). Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).¹ For the reasons stated below, the Commissioner's motion is denied and Mangual's motion is granted.

I. BACKGROUND

A. Procedural History

Mangual applied for DIB and SSI benefits on March 30, 2017. See SSA Administrative Record, filed June 21, 2021 (Docket # 18) ("R."), at 238, 245. Mangual alleged that her disability began on December 31, 2015, when she was 47 years old. R. 18, 238. The Social Security Administration ("SSA") denied both of Mangual's applications on May 22, 2017, R. 140, 141, and Mangual sought review by an Administrative Law Judge ("ALJ"), R. 168, 169. A hearing was held on May 10, 2019. R. 117. In a written decision dated July 31, 2019, the ALJ found Mangual to not be disabled. See R. 9-20. On August 27, 2019, Mangual sought review by the Appeals Counsel, see R. 5, which denied her request on July 17, 2020, R. 1. This action followed.

B. The Hearing Before the ALJ

The hearing was held by video conference before an ALJ in Hartford, Connecticut. R. 115. Mangual, represented by counsel, participated from the SSA's "Varick, New York Hearing Offices." R. 117. A vocational expert, Larry Takki, was also present via telephone. Id.

Mangual testified that she lived in a separate room in an apartment that housed three other residents. R. 123. She said that she did not typically prepare her own meals, but rather contributed money towards a shared meal with her cohabitants in the apartment. R. 130-31. She said that she was able to shower and dress herself, R. 131, but that her children cleaned her room and did her laundry, id. Mangual denied socializing outside of her home except when visiting her grandchildren. R. 131-32.

Mangual testified that her work history included some self-employment income derived from buying and re-selling t-shirts. R. 125. Mangual had no other work history that was noted at the hearing, and the ALJ found that Mangual's employment record included no past relevant work. Id.

Mangual testified that the highest level of education she completed was ninth grade. R. 124. She was not able to drive and she struggled to navigate public transportation without the assistance of her children. R. 124, 126. Mangual struggled to read and understand correspondence from the SSA, and required the assistance of her children to do so. R. 127. She did not know how to write a letter by herself. Id.

Mangual also testified that, due to her back pain, she had a limited ability to sit and stand, and was able to stand for only 10 or 15 minutes without needing to sit. R. 128. She experienced arthritis pain "[a]lways" in her feet and hands. Id. Mangual had a pinched nerve in her shoulder and an unexplained issue with her ligaments. R. 129-30. Mangual has asthma, for which she uses an inhaler twice daily. Id.

Mangual testified that she used marijuana every other day to relax and alleviate her various sources of pain. R. 129. Mangual testified that she had, a month prior to the hearing, gone to inpatient rehabilitation for cocaine use, but that she was not currently using cocaine. R. 132-33.

The ALJ consulted a vocational expert ("VE"), Larry Takki, by phone. The VE did not review Mangual's history of self-employment work, as the ALJ had already made a finding that Mangual had no past relevant work. R. 125, 135. The ALJ asked the VE the following question:

First, considering an individual of the Claimant's age, education, and work history with the ability to perform all ranges of work. This individual must avoid dust, fumes, gases, odors, poor ventilation. And this individual is able to perform simple, routine tasks. Is there work in the national economy for somebody with those abilities?

R. 135. The VE responded that there were several occupations with available employment, including a price marker, a sub-assembler of electronics, and routing clerk, all of which were unskilled, light duty positions. Id.

The ALJ then asked whether these positions would be available if the individual from the hypothetical "were unable to read and write in English," R. 135, to which the VE replied

The price marker [would] have to recognize numbers because they're putting prices on merchandise, so there would have to be some literacy. However, the sub-assembler of electronics and the routing clerk well, the routing clerk would also need to ... have some basic alphabet skills to do that job. But the sub-assembler of electronics could be performed through demonstration and through (INAUDIBLE) individual's ... illiteracy ... in order to do this occupation. In the past, I've placed people who could do this job who were illiterate, but not the other two.

R. 136. The ALJ then asked whether there was any "other work in the national economy for somebody with those abilities." Id. The VE responded that work as a cafeteria attendant, "could be performed through demonstration and such" and that this position "does not require any illiteracy very much literacy." Id. The VE also identified work as an assembler of communication equipment. Id. Both positions were unskilled, light duty occupations. Id.

At the outset of the hearing, Mangual's attorney argued that Mangual may meet the listing for an intellectual disability. R. 118. Counsel highlighted that Mangual had "a ninth-grade education, in which she only attended specialized school," and that she was "barely able to read and write." R. 119. Counsel suggested that evidence could be obtained that would substantiate this disability:

[N]ew IQ testing, or intelligence testing, along with either if we can locate school records, or if we can get a signed statement from a person with knowledge who can attest that she did attend specialized schooling would be sufficient to meet that listing. We have ... to get information going back prior to age 22.

Id. The ALJ agreed that he and counsel could "look at that after the fact and sort that issue out" and that it was "possible to meet the burden" of showing an intellectual disability with the evidence counsel had outlined. R. 120. The ALJ resolved to continue the hearing as to Mangual's other potential sources of disability, and agreed to "put the matter into post" so that Mangual could be sent to a psychologist for intellectual testing. Id. The ALJ revisited the issue near the end of the hearing, explaining that the matter would be "in post" and so Mangual could submit any additional records relating to her claimed intellectual disability over the next 15 to 30 days. R. 138. The ALJ concluded by saying that "[g]iven a potential vocational intellectual disability claim, I think we have to do all we can to develop the file." Id.

C. The Medical Evidence

Both Mangual and the Commissioner have provided detailed summaries of the medical evidence. See Def. Mem. at 3-9; Pl. Mem. at 2-7. The Court had directed the parties to specify any objections they had to the opposing party's summary of the record, see Scheduling Order, filed Oct. 20, 2020, ¶ 3 (Docket # 10), and neither party has done so. Accordingly, the Court adopts both parties’ summaries of the medical evidence as accurate and complete for purposes of the issues raised in this suit. We discuss the medical evidence pertinent to the adjudication of this case in Section III below.

D. The ALJ's Decision

The ALJ denied Mangual's application on July 31, 2019. R. 9. The ALJ first found that Mangual met "the insured status requirements of the Social Security Act through December 31, 2018." R. 12. Then, following the five-step test set forth in SSA regulations, the ALJ found at step one that Mangual had not engaged in "substantial gainful activity since December 31, 2015," the alleged onset date of Mangual's disability. Id.

At step two, the ALJ found that Mangual had the following severe impairments: "asthma ; bipolar disorder ; anxiety disorder; panic disorder." Id. The ALJ found that certain of Mangual's other conditions, such as her "scoliosis, osteoarthritis of the right shoulder, cocaine and cannabis use disorder," were non-severe, as they "pose minimal limitations on her functioning." Id. The ALJ explained that Mangual's medical records, although "very vague, show[ed] normal physical functioning, despite some notations of various complaints." Id. The ALJ also explained that Mangual's "alleged intellectual disability is not medically determinable as there are no records showing evidence of this impairment." Id. Even so, the ALJ stated that he would incorporate Mangual's representations that she could not read or write in English into the RFC. Id.

At step three, the ALJ concluded that none of Mangual's severe impairments singly or in combination met or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. The ALJ specifically considered listings 3.03 (asthma ), 12.04 (depressive, bipolar and related disorders), and 12.06 (anxiety and obsessive-compulsive disorders ). See R. 12 - 13. The ALJ concluded that Mangual did not meet the criteria for 3.03 as she had not suffered "chronic asthmatic bronchitis or attacks, in spite of prescribed treatment and requiring physician intervention, occurring at least once every two months or at least six times a year." Id. The ALJ...