Richard R. v. Kijakazi

691 F.Supp.3d 508

RICHARD R.¹, Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of Social Security, Defendant.

No. 3:22-CV-1037 (RMS)

United States District Court, D. Connecticut

Signed September 13, 2023

Dennis G. Ciccarillo, Michalik, Bauer, Silvia & Ciccarillo, LLP, New Britain, CT, for Plaintiff.

John Molinaro, Kathryn Pollack, Office of Program Litigation, Office 2 Office of the General Counsel Social Security Administration, Baltimore, MD, for Defendant.

RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER, OR, IN THE ALTERNATIVE, FOR REMAND FOR A HEARING, AND ON THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

Robert M. Spector, United States Magistrate Judge

This is an administrative appeal following the denial of the plaintiff's applications for disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act (the "Act") and supplemental security income benefits ("SSI") under Title XVI of the Act. It is brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).²

The plaintiff now moves for an order reversing the decision of the Commissioner of the Social Security Administration (the "Commissioner"). (Doc. No. 19). In the alternative, the plaintiff seeks an order remanding the case for further administrative proceedings. (Id.). The Commissioner, in turn, has moved for an order affirming her decision. (Doc No. 20).

For the following reasons, the plaintiff's motion for an order reversing or remanding the ALJ's decision is GRANTED in part and DENIED in part,³ and the Commissioner's motion for an order affirming that decision is DENIED.

I. PROCEDURAL HISTORY

On October 30, 2018, the plaintiff filed an application for both DIB and SSI benefits claiming that he had been disabled since August 3, 2018, due to status-post right hip replacement; bilateral osteoarthritis of the knees; lumbar spine degenerative changes; obesity; depressive disorder; and anxiety disorder. (Doc. No. 13, Certified Transcript of Administrative Proceedings, dated September 14, 2022 ["Tr."] 15, 92, 93, 122, 127, 135, 139). The plaintiff's applications were denied at the administrative level both initially on February 13, 2019, and upon reconsideration on June 4, 2019. (Tr. 120, 121). On August 19, 2021, a virtual video hearing was held before Administrative Law Judge ("ALJ") John Aletta, at which the plaintiff and a vocational expert ("VE"), Stella Frank, testified. (Tr. 15, 41).⁴ On September 29, 2021, the ALJ issued an unfavorable decision denying the plaintiff both DIB and SSI benefits. (Tr. 12, 27). On June 29, 2022, the Appeals Council denied the plaintiff's request for review, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 1).

On August 17, 2022, the plaintiff filed his complaint in this pending action. (Doc. No. 1). On September 30, 2022, the parties consented to the jurisdiction of a United States Magistrate Judge, and the case was transferred to the undersigned on October 5, 2022. (Doc. Nos. 12, 15). On January 6, 2023, the plaintiff filed his Motion to Reverse the Decision of the Commissioner (Doc. No. 19) with a Statement of Material Facts (Doc. No. 19-2) and a brief in support (Doc. No. 19-1). On March 6, 2023, the Commissioner filed her Motion to Affirm (Doc. No. 20), with a responding Statement of Material Facts (Doc. No. 20-2) and a brief in support (Doc. No. 20-1). The plaintiff did not file a reply.

II. FACTUAL BACKGROUND

The Court presumes the parties' familiarity with the plaintiff's medical history, which is thoroughly discussed in the parties' statements of material facts. (See Doc. Nos. 19-2, 20-2). The Court cites only the portions of the record that are necessary to explain this decision.

A. The Plaintiff's August 19, 2021 Telephonic Hearing Testimony

Before taking the plaintiff's testimony over the telephone, the plaintiff's counsel indicated that the ALJ would be receiving outstanding and recent documentation from Dr. Borgonos of Community Health Center, the plaintiff's primary care physician ("PCP"), as well as potential information from a rheumatologist at Hartford Healthcare. (Tr. 45-46). The ALJ allowed plaintiff's counsel 21 days to submit those materials. (Tr. 47). Additionally, the plaintiff's counsel asked to amend the plaintiff's alleged onset date ("AOD") from August 3, 2018 to August 3, 2017, on the grounds that the plaintiff's hip problems began prior to 2018. (Id.). The ALJ acquiesced to this request. (Id.)

After being sworn in, the plaintiff testified as follows. The plaintiff stated that he was 42 years old, weighed 245 pounds, and was 5'8" in height. (Tr. 48). The plaintiff had completed ninth grade but never received a GED and had never performed any specialized work. (Tr. 49).

The plaintiff then reviewed his work history. The plaintiff described that, from 2007 to 2015, he worked as a truck driver making deliveries and a warehouse forklift operator for a company called CW Resources. (Tr. 49-51). He explained that "a lot of the time" he was in the warehouse operating the forklift, but he would also drive the truck (which was 28-feet long) on certain days. (Tr. 50). He affirmed that, in performing both jobs, he did not do much other than sitting. (Tr. 50-51). The plaintiff testified that he would lift or carry about 50 pounds or greater on a regular basis at this job. (Tr. 50). The plaintiff denied that he was currently working or conducting any businesses. (Tr. 51).

The ALJ then questioned the plaintiff as to why he believed he could not work any job. (Tr. 51). The plaintiff explained that he suffered from pain and swelling in his knees, hip, and right shoulder due to arthritis and that these symptoms would start in the early morning and go on throughout the day. (Tr. 51-52). The plaintiff stated that, to alleviate these issues, he took medication for swelling and muscle spasms, as well as sleeping pills. (Tr. 52). He denied that these medications had any side effects. (Id.). The plaintiff relayed that he had undergone a right hip replacement on August 3, 2018, but had no other surgeries. (Tr. 53). The plaintiff further denied any treatment for psychological problems, or for drug or alcohol addiction. (Id.).

The plaintiff explained that he had pain in his right elbow that made it painful to pick up more than five or ten pounds. (Tr. 53). He also had issues bending due to his hip and knees. (Tr. 54). He stated that it was painful to walk and that the pain would start in the morning. (Id.).

Regarding his mental faculties, the plaintiff testified that he has a "little bit" of a problem with his memory and concentration in that he would forget quickly. (Tr. 54). However, he had no issues getting along with other people, and he lived with his girlfriend. (Id.).

As to his activities of daily living, the plaintiff testified that he could sweep and fold clothes on his own but "that's about it." (Tr. 54). His girlfriend would do the laundry and assist with food prep and occasionally the plaintiff's personal hygiene regime. (Tr. 54-55, 61). As the plaintiff could not bend over, his girlfriend would assist him with bathing and dressing. (Tr. 61). His girlfriend would also go grocery shopping for him, but he would go along for the ride. (Tr. 55). The plaintiff would pass the time by watching television and occasionally visiting his girlfriend's children. (Tr. 55-56.). The plaintiff had not left Connecticut in the last three years. (Tr. 56).

Upon examination by his attorney, the plaintiff also testified as follows. The pain in the plaintiff's hips and legs made it so difficult to bend over that he was unable to put his socks or pants on by himself, and he needed the assistance of his girlfriend. (Tr. 57). When the plaintiff would stand and start walking, his legs would "give up" on him and get "gummy." (Id.). When that occurred, he had to wait for a few minutes for his leg to "get back" before he could walk again. (Id.). It was the plaintiff's left knee that was the "big problem" or cause for his legs "giving up" or going "gummy." (Id.).

The plaintiff used a cane both inside his apartment and "all the time" on the streets. (Tr. 58). He also testified that his right knee gave him issues as it had a "throb[bing] pain," but that it was primarily his left knee that was worse. (Id.). The plaintiff had undergone a right hip replacement about three years prior, and the replacement was also giving him left hip problems. (Id.). The plaintiff also had difficulty sitting; he would have to "sit a certain way" and then "within a half hour" he would get "numb" and need to get up and move around before sitting back down. (Tr. 58-59). Additionally, if he walked too much he would have to sit down and rest. (Tr. 59).

When he was at home, the plaintiff would spend most of his time laying down on a bed so that his body could rest and so as not to put pressure on his joints, which would "help[ him] out." (Tr. 59). The plaintiff also suffered from sleep apnea that would wake him up and leave him feeling tired during the day. (Tr. 59-60). Additionally, the plaintiff suffered from episodes of vertigo, which gave him dizzy spells that prevented him from walking or driving. (Tr. 60). Once a vertigo episode had started, the plaintiff would take pills for it (along with anti-nausea medication) which would "kind of help[ ] out" after twenty minutes, but not always. (Id.). His vertigo episodes could last for as long as four days. (Id.). During these spells, the plaintiff could not stand or go to the bathroom alone; he would need his girlfriend's assistance to move anywhere in the house. (Id.)

B. The VE's Testimony

After being sworn in, the vocational expert, Stella Frank, testified as to the following, based upon her review of "portions" of the plaintiff's file and listening to his testimony at the hearing. (Tr. 61-62).

First, the VE provided a description of the plaintiff's prior work based on his testimony at the hearing. The VE opined that ...