Salerno v. Berryhill

Anthony Salerno, Plaintiff, v. Nancy A. Berryhill,Acting Commissioner of the Social Security Administration. Defendant.

19-cv-00627 (KHP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 24, 2020

OPINION & ORDER

Plaintiff Anthony Salerno, represented by counsel, commenced this action against Defendant Commissioner of the Social Security Administration (the "Commissioner"), pursuant to Title XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of the Commissioner's decision finding that he was not disabled under Sections 216(i) and 223(d) of the Act from April 9, 2015, Plaintiff's alleged disability onset date ("AOD"), through March 6, 2018, the date of the Commissioner's decision.

The parties submitted a joint stipulation in lieu of cross-motions for judgment on the pleadings (the "Joint Stipulation") pursuant to this Court's order. Plaintiff appeals the administrative law judge's ("ALJ") decision concerning whether (1) the ALJ erred in finding that Plaintiff's conditions do not meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"); (2) whether the ALJ properly weighed the opinions of Plaintiff's treating physicians and sources; (3) whether the ALJ properly calculated Plaintiff's residual functional capacity ("RFC"), and (4) whether the ALJ correctly applied the Medical- Vocational Guidelines ("Grids"), 20 C.F.R. Part 404, Subpart P, Appendix 2, and properly relied on the vocational expert's testimony. For the reasons set forth below, the Commissioner's motion is GRANTED, and Plaintiff's motion is DENIED.

I. Procedural History

Plaintiff was born on July 4, 1967 and currently is 52 years old. He has a high school education. He testified that he worked in New York City's Department of Environmental Protection as a construction worker and was involved in water system and sewer repair. He has not worked since April 9, 2015. As of his hearing on December 29, 2017, he lived with his adopted son in a house on Staten Island. Plaintiff had a hernia repair in 2003, gastric bypass surgery in May 2015, and his left hip replaced in September 2015.

He filed his initial claim for disability insurance benefits ("DIB") on November 17, 2015, shortly after his hip replacement surgery and about six months after his gastric bypass surgery. He asserted that conditions involving his left hip, hearing loss, and obesity were disabling. He claimed an alleged onset date of disability on April 9, 2015, the date he last worked. The Commissioner denied Plaintiff's application for benefits on February 2, 2016. Plaintiff contested the denial and filed a request for hearing, which was granted. On December 29, 2017, the Commissioner held a hearing on Plaintiff's claim. Plaintiff appeared before ALJ Andrea Addison. During his hearing, Plaintiff claimed that he was disabled because of hearing loss, a knee condition, carpal tunnel syndrome in both hands, a right elbow condition, and a serious condition with his hip.

Based on the medical records and on Plaintiff's testimony, the ALJ determined Plaintiff's residual functional capacity-the maximal of work Plaintiff could do despite his limitations. The ALJ posed hypotheticals based on that RFC to Larry Takki, a vocational expert ("VE"). The VE testified at the hearing that there were jobs in the national economy for individuals with limitations like those Plaintiff had; namely, a collator/operator, a price marker, and a sub-assembler of electronics. The ALJ found Plaintiff was not disabled for the purposes of Social Security and denied his application for benefits on March 6, 2018. Plaintiff appealed to the Appeals Council and submitted additional evidence from March 20, 2018, outside of the relevant period which ended as of the ALJ's decision. The Appeals Council denied her application on December 21, 2018. The instant case followed.

II. The Commissioner's Decision

In rendering her decision, the ALJ first determined that Plaintiff met the insured status requirement for DIB under the Social Security Act through December 31, 2020. She then applied 20 C.F.R. § 404.1520(a)(4)'s five-step sequential process to evaluate Plaintiff's claim. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his AOD, April 9, 2015. At step two, the ALJ concluded that Plaintiff suffered from the following severe impairments: left hip osteoarthritis status post left hip reconstruction and hearing loss The ALJ also considered Plaintiff's carpal tunnel disorder but found it to be non-medically determinable because of a lack of corroborating test results or examination findings.

At step three, the ALJ found that Plaintiff's impairments, individually and collectively, failed to meet or equal the severity of the impairments in the Listings. The ALJ discussedListings 1.02 ("Major dysfunction of a joint(s) (due to any cause)") and 2.10 ("Hearing loss not treated with cochlear implantation"). The ALJ found that Listing 1.02 was not met because "treatment records do not establish that [Plaintiff] has an inability to ambulate effectively," as required by Listing 1.02(a). Tr. 14. In connection with Listing 2.10, the ALJ found that Plaintiff's hearing test results did not meet the Listing thresholds.

At step four, the ALJ assessed Plaintiff's RFC. See 20 C.F.R. § 416.945(a)(1). The ALJ found that, through the hearing date, Plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 416.967(b) subject to certain limitations, including restrictions on certain types of movement such as only occasionally¹ stooping and kneeling and never using left foot controls. Relying on the testimony of the VE, he found that there were jobs, such as collator/operator, price marker, and sub assembler of electronics, that someone with Plaintiff's RFC could perform. Thus, the ALJ held that Plaintiff was not disabled.

DISCUSSION

I. Applicable Law

A. Judicial Standard of Review of the Commissioner's Decision

A court's review of the Commissioner's denial of disability benefits is limited to two inquiries. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987); Dwyer v. Astrue, 800 F. Supp. 2d 542, 546 (S.D.N.Y. 2011). The court must determine whether the Commissioner applied the correct legal principles in reaching a decision and whether the Commissioner's decision issupported by substantial evidence in the record. 42 U.S.C. § 405(g); Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). If the Commissioner's decision is supported by substantial evidence in the administrative record, the ALJ's findings as to any facts are conclusive. 42 U.S.C. § 405(g) & § 1383(c)(3).

An ALJ's failure to apply the correct legal standard constitutes reversible error if that failure may have affected the disposition of the case. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). This applies to an ALJ's failure to follow an applicable statutory provision, regulation, or Social Security Ruling ("SSR"). See, e.g., id. (discussing failure to follow a regulation); Schaal v. Callahan, 993 F. Supp. 85, 93 (D. Conn. 1997) (discussing failure to follow SSR). In such a case, the court may remand the matter under sentence four of 42 U.S.C. § 405(g), especially if necessary to allow the ALJ to develop a full and fair record or to explain her reasoning. See, e.g., Donnelly v. Colvin, No. 13-CV-7244 AJN RLE, 2015 WL 1499227, at *8 (S.D.N.Y. Mar. 31, 2015); Rivera ex rel. S.M.H. v. Colvin, 9 F. Supp. 3d 309, 316 (S.D.N.Y. 2014).

If the reviewing court is satisfied that the ALJ applied the correct legal standards, it must "conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (citation and internal quotation marks omitted); Donnelly, 2015 WL 1499227, at *8. The threshold is not high. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Substantial evidence is "more than mere scintilla" and "means—and means only—such relevant evidence as reasonable mind might accept as adequate to support a conclusion." Id. (citations and internal quotation marksomitted); accord Estrella, 925 F.3d at 95. Under the substantial evidence standard, a reviewing court may reject an ALJ's findings of fact "only if a reasonable factfinder would have to conclude otherwise." Brault, 683 F.3d at 448 (emphasis in original) (citation and internal quotation marks omitted). This is a "highly deferential standard of review." Negron v. Berryhill, 733 F. App'x 1, 2 (2d Cir. 2018) (noting that, where there is more than one rational interpretation, the Commissioner's decision will stand).

To be supported by substantial evidence, the ALJ's decision must be based on a consideration of all the evidence available in the record. See 42 U.S.C. § 1383(c); Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013). While the ALJ's decision need not "mention[] every item of testimony presented," Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam), or "reconcile explicitly every conflicting shred of medical testimony," Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (citation and internal quotation marks omitted), the ALJ may not ignore or mischaracterize evidence of a person's alleged disability. See Ericksson v. Comm'r of Soc. Sec., 557 F.3d 79, 82-84 (2d Cir. 2009) (discussing mischaracterizing evidence); Kohler, 546 F.3d at 268-69 (discussing overlooking evidence); Ruiz v. Barnhart, No. 01-cv-1120 (DC), 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (discussing ignoring evidence). If the decision applies the correct legal standards and is based on substantial evidence, the reviewing court must affirm; otherwise, the court may modify or reverse the decision, with or without remand. 42 U.S.C. §§ 405(g) & 1383(c)(3).

B. Legal Principles Applicable to the...