Stergue v. Astrue

Filing 28

ORDER approving and adopting 22 Recommended Ruling; denying 20 Motion to Reverse the Decision of the Commissioner; granting 21 Motion to Affirm the Decision of the Commissioner. Please see attached Ruling and Order. Signed by Judge Robert N. Chatigny on 5/19/16. (Samuels, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KATHRYN FERRIS STERGUE,

:
:
Plaintiff,
:
:
v.
:
:
CAROLYN W. COLVIN, Acting
:
Commissioner of Social Security, :
:
Defendant.
:

Case No. 3:13-cv-25 (RNC)

RULING AND ORDER
Plaintiff Kathryn Ferris Stergue brings this action pursuant
to 42 U.S.C. § 405(g) seeking review of a final decision of the
Commissioner of Social Security (“Commissioner”) denying her
application for disability insurance and supplemental security
income benefits.

Magistrate Judge Martinez has issued a

recommended ruling that plaintiff’s motion to reverse the
Commissioner’s decision be denied and that defendant’s motion to
affirm the decision be granted.

Plaintiff has filed an objection

to the recommended ruling and defendant has responded.

For

reasons that follow, the recommended ruling is approved and
adopted.
I.

Background
Between 1988 and the mid-2000s, plaintiff was employed as a

dental hygienist.

Since then, her ability to work has been

adversely affected by a number of impairments.

Symptoms of

fibromyalgia, which plaintiff has experienced since the mid-

1

1990s, worsened after a cerebral hemorrhage in 2004.

R. 851-52.

Obesity contributed to pain in her back, legs and neck and
complicated other ailments.

She experienced edema in her legs,

developed degenerative disc disease in her back, and had trouble
in her left shoulder that compromised her range of motion.

Id.

This constellation of problems increased in severity after she
had a bad fall and car accident.

Id.

Emotional distress

accompanied the plaintiff's physical infirmities: she began to
suffer from depression and anxiety attacks, which occasionally
caused her to remain in bed for a day or two at a time.

Id.

Plaintiff’s troubles prevented her from continuing to work
as a dental hygienist and she has not been formally employed for
any significant period of time since 2006.

In the years since, a

number of doctors, including mental health professionals, have
credited her complaints and documented her struggles.

R. 853–56.

But at the same time, plaintiff has almost never been unable to
function from day to day.

At various points since she stopped

working as a hygienist, she has been able to serve as primary
caregiver to her sick father, to socialize, and to work for a
dog-walking business she started with her roommate.

R. 857.

has also regularly participated in religious services and
instructed others in Bible study.
The plaintiff filed her first application for disability
benefits in 2007.

After several years of review at multiple

2

She

levels and the filing of two more applications, an administrative
law judge (“ALJ”) determined that plaintiff was not disabled and
denied her applications for disability insurance and supplemental
security income benefits.
Plaintiff contends that the ALJ erred in his determination
that she is not disabled.
grounds.

Her argument rests on four different

First, she argues that the ALJ erred in assessing the

severity of her impairments.

Second, she argues that the ALJ

improperly declined to credit some of her testimony.

Third, she

argues that the ALJ failed to comply with the treating physician
rule.

Finally, she contends that the ALJ should have called a

vocational expert to determine whether she is able to work
instead of relying on the Medical Vocational Guidelines.

In the

recommended ruling, Magistrate Judge Martinez concludes that the
ALJ’s finding should be affirmed over plaintiff’s objections.
II.

Standard of Review
This Court may set aside the ALJ’s decision "only if the

factual findings are not supported by substantial evidence or if
the decision is based on legal error."

Burgess v. Astrue, 537

F.3d 117, 127 (2d Cir. 2008) (internal quotation marks omitted).
Substantial evidence means "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."

Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010).

This Court's role is not to reweigh the evidence.

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Rather, the

ALJ’s decision must be affirmed "if it is based upon substantial
evidence even if the evidence would also support a decision for
the plaintiff."
Conn. 2000).

Bellamy v. Apfel, 110 F. Supp. 2d 81, 87 (D.

When a decision “rests on adequate findings

supported by evidence having rational probative force,” a court
may “not substitute [its] judgment for that of the Commissioner.”
Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
III. Discussion
A person who is disabled is entitled to benefits under the
Social Security Act.

42 U.S.C. §§ 423(a)(1), 1381a.

A

"disability" is "an inability 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."
1382c(a)(3)(A).

42 U.S.C. §§ 423(d)(1)(A),

Under the Social Security regulations,

determining whether an individual is disabled entails five steps:
First, the [Commissioner] considers whether the
claimant is currently engaged in substantial gainful
activity.

If he is not, the [Commissioner] next

considers whether the claimant has a 'severe
impairment' which significantly limits his physical or
mental ability to do basic work activities.

If the

claimant suffers such an impairment, the third inquiry

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is whether, based solely on medical evidence, the
claimant has an impairment which is listed in Appendix
1 of the regulations.

If the claimant has such an

impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as
age, education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a
'listed' impairment is unable to perform substantial
gainful activity.

Assuming the claimant does not have

a listed impairment, the fourth inquiry is whether,
despite the claimant's severe impairment, he has the
residual functional capacity to perform his past work.
Finally, if the claimant is unable to perform his past
work, the [Commissioner] then determines whether there
is other work that the claimant could perform.
Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983).

With

respect to the first four steps, the claimant bears the burden of
proof.

But once the claimant shows at the fourth step that she

cannot perform her past work, the burden shifts to the
Commissioner at step five to show the existence of other work
suited to the claimant's abilities.

Kohler v. Astrue, 546 F.3d

260, 265 (2d Cir. 2008).
In this case, the ALJ's five-step evaluation proceeded as
follows.

First, he found that plaintiff had not engaged in

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substantial gainful activity since December 2006.

He then found

that she suffered from a number of "severe impairments,"
including fibromyalgia, shoulder impingement, obesity, episodes
of cellulitis, sleep apnea, depression, panic disorder, and
obsessive-compulsive disorder.

The ALJ found that these

impairments did not meet or medically exceed the "listed
impairments" in 20 CFR, Pt. 404. R. 849.

He determined that the

plaintiff had the "residual functional capacity to perform
sedentary work . . . except she can only frequently use her upper
extremities for reaching.

She is limited to simple instructions

and can perform routine, repetitive tasks."

R. 850.

At step

four, the ALJ found that plaintiff could not perform her past
relevant work as a dental hygienist.

At step five, he concluded

that, given her age, education, experience and residual
functional capacity, "there are jobs that exist in significant
numbers in the national economy" that she can perform.
A.

R. 860.

Severity of Plaintiff’s Impairments

The thrust of plaintiff's first argument is that the ALJ
misjudged the severity of her impairments.

Plaintiff’s briefing

on this point discusses evidence that could support a finding
that her ailments were serious enough to be disabling.

But the

issue is not whether the record evidence could have supported
such a finding by the ALJ; the issue is whether the finding that
the ALJ did render is supported by substantial evidence.

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See

Zabala, 595 F.3d at 408.

After de novo review, I conclude that

the ALJ’s finding is adequately supported.
The ALJ's opinion addressing plaintiff’s physical
impairments discusses evidence tending to show that she was not
disabled during the relevant period of time.

In 2007, a physical

therapist noted that plaintiff had been making "slow, steady
gains"; had a marked decrease in the pain associated with her
fibromyalgia; and was regularly performing household chores and
physical labor outside the home.

R. 853–54.

Epidural steroid

injections were providing plaintiff with relief from most
symptoms for months at a time.

R. 854.

In consultative

examinations between 2008 and 2010, state agency physicians found
that plaintiff’s level of pain was low and she was able to sit
and stand without discomfort.

R. 855.

Between 2010 and 2012,

plaintiff reported that she was caring for her father, cooking
his food, and operating a dog-walking business with a friend.

R.

856–57.
With regard to plaintiff’s mental health, the record shows
that between 2008 and 2010, state agency physicians examined her
and found no debilitating difficulty with her activities of daily
living or social interaction.

R. 855.

Use of pharmaceuticals

provided her with relief from symptoms of depression.

Id.

Global Assessment of Functioning scores, which indicate the
severity of mental illness, generally reflected “mild to

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Her

moderate” impairment.

R. 856.

As the ALJ noted, a reasonable

level of mental and emotional functioning was also indicated by
plaintiff’s ability to care for her father and actively
participate in the dog-walking business.

R. 857.

Based on the

entire record, the ALJ found that plaintiff’s own representations
concerning the severity of her impairments – on which she relied
heavily at her hearing – were not entirely credible.

R. 851.

Plaintiff points to medical evidence tending to show that
her impairments were more severe than found by the ALJ.

However,

the ALJ considered this evidence and provided a reasoned
explanation for his conclusion that it failed to support
plaintiff’s claim.

For instance, one doctor indicated in 2009

that plaintiff needed to elevate her legs for eighty or ninety
percent of every day.

R. 857.

The ALJ determined that the

doctor’s statement was entitled to little weight because it was
inconsistent with record evidence from the same time period and
rested “heavily” on plaintiff’s subjective complaints.

Id.

In effect, plaintiff urges the Court to reweigh the evidence and
substitute its judgment for that of the ALJ concerning the
severity of plaintiff’s impairments.

But the evidence just

summarized is adequate to support the ALJ’s finding.1
1

Plaintiff argues that the ALJ erred by ignoring her
obesity and failing to consider all her impairments in
combination. This argument is closely related to the claim that
the ALJ failed to accurately assess the severity of her
limitations, and it likewise fails. The ALJ discussed
plaintiff's obesity, R. 854, and it is apparent that the ALJ
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Accordingly, the ALJ’s assessment of the severity of plaintiff’s
impairments cannot be overturned.
B. Evaluation of Credibility
As just mentioned, the ALJ found that plaintiff's testimony
about the nature and extent of her impairments was not entirely
credible.

R. 851.

Plaintiff argues that this finding is not

adequately supported.

I disagree.

In support of his credibility

determination, the ALJ explained that plaintiff’s testimony
concerning the severity of her impairments was inconsistent with
other evidence, including the evidence discussed above.

In

addition, he explained that when plaintiff testified at the
hearing, she omitted to discuss matters that could hurt her case.
She did not mention her role in her father's life, her job as a
dog-walker, or her participation in other activities requiring
some degree of physical exertion.
The ALJ had a duty to assess plaintiff’s testimony
concerning the severity of her impairments in light of the record
as a whole, and he was entitled to consider that plaintiff
omitted to testify about participating in activities that could
undercut her claim.

Having done so, the ALJ could reasonably

conclude that plaintiff's testimony concerning her impairments
should be discounted.

considered plaintiff’s various maladies as an interconnected web
of impairments.
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C. The Treating Physician Rule
Under the treating physician rule, "[t]he opinion of a
treating physician on the nature or severity of a claimant's
impairments is binding if it is supported by medical evidence and
not contradicted by substantial evidence in the record."
v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013).

Selian

In essence, the

rule provides that an ALJ should prefer the opinion of a treating
physician – one who has consulted with the patient repeatedly
over time – to the opinion of a physician who has merely examined
the patient on one or two occasions.

In this case, plaintiff’s

claim that she is unable to work is supported by the opinions of
treating physicians (Drs. Delaney and Lulo), as the ALJ
acknowledged.

R. 856-57.

But the ALJ declined to give

conclusive weight to their opinions.

Plaintiff contends that

this constitutes reversible error.
The treating physician rule permits an ALJ to decline to
give controlling weight to the opinion of a treating physician if
the opinion is contradicted by substantial evidence in the
record.

See Burgess, 537 F.3d at 128.

This is such a case.

declining to give controlling weight to the opinions of
plaintiff’s treating physicians, the ALJ cited reports of
examinations done by a number of non-treating physicians (Drs.
Samai, Joseph, Dunford, and Higgins).

These reports, combined

with the evidence summarized above concerning plaintiff’s

10

In

condition during the relevant period (including her own
representations to doctors and therapists about her activities),
constitute substantial evidence contradicting the reports of
plaintiff’s treating physicians.

Moreover, in assessing the

weight to be given the opinions of plaintiff’s treating
physicians, the ALJ explained that the opinions were not wellsupported.

For instance, in discounting Dr. Delaney’s 2009

report, the ALJ explained that the report would receive "limited
weight" because it was contradicted by other evidence, Dr.
Delaney's own treatment notes indicated that plaintiff was
capable of more activity than he suggested, and Dr. Delaney's
conclusions were based almost entirely on plaintiff's statements
rather than medical tests.

R. 857–58.

In these circumstances,

the ALJ did not err in declining to give controlling weight to
the opinions of plaintiff's treating physicians.
D.

Vocational Evaluation
Plaintiff contends that the ALJ erred in relying on the

Medical Vocational Guidelines rather than consulting a vocational
expert.

These Guidelines, known as the “Grids,” are a “shorthand

way of evaluating vocational factors that take into consideration
a claimant’s age, education, and previous work experience.”
Bethea v. Astrue, No. 3:10-CV-744 JCH, 2011 WL 977062, at *13 (D.
Conn. Mar. 17, 2011).

But the Grids do not account for a

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claimant's "nonexertional limitations."2

For this reason,

reliance on the Grids is improper if a non-exertional limitation
“has any more than a negligible impact on a claimant’s ability to
perform the full range of work.”
Cir. 2013).

Selian, 708 F.3d at 421 (2d

The “mere existence” of a non-exertional impairment

does not “automatically” preclude reliance on the Grids.
595 F.3d at 410-11.

Zabala,

Rather, the Grids are not applicable when a

claimant suffers from a non-exertional impairment that is
“significant,” meaning the impairment “so narrows a claimant’s
possible range of work as to deprive [her] of a meaningful
employment opportunity.”

Selian, 708 F.3d at 421.

It is error

for an ALJ to rely on the Grids instead of obtaining vocational
expert testimony without “affirmatively determin[ing]” whether a
claimant’s non-exertional limitation is negligible.

Id. at 422.3

2

Non-exertional limitations are defined as limitations that
are not related to the strength demands of a job. See Lumpkin v.
Colvin, No. 3:12CV1817 DJS, 2014 WL 4065651, at *11 (D. Conn.
Aug. 13, 2014). Examples of non-exertional limitations include
difficulty with “manipulative or postural functions” such as
reaching, stooping, and crawling. Id. at n.9. The Regulations
set out numerous examples of nonexertional limitations. See 20
C.F.R. § 404.1569.a(c)(1).
3

Case law recognizes the need for adequate reasoning in
connection with a finding that nonexertional limitations do not
affect a claimant's occupational base. In Owens v. Comm'r of
Soc. Sec., 508 F. App’x. 881 (11th Cir. 2013), for example, an
ALJ concluded that "[t]he claimant's ability to understand, carry
out, and remember simple instructions, use judgment in making
work-related decisions . . . and deal with changes in a routine
work setting does not substantially limit the occupational base."
Owens, 508 F. App’x. at 884. He failed to support that finding
with record evidence or with further reasoning. The Eleventh
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In this case, at step 3 of the sequential evaluation
process, the ALJ found that plaintiff had the capacity to
“perform sedentary work . . . except she can only frequently use
her upper extremities for reaching. She is limited to simple
instructions and can perform routine, repetitive tasks.”

R. 850.

After determining that plaintiff could not perform her past
relevant work, the ALJ moved on to step 5, and stated the
following with regard to her nonexertional limitations: “[T]he
additional limitations have little or no effect on the
occupational base of unskilled sedentary work. . . . The
claimant’s mental limitations would not preclude her from
performing unskilled work.

Her upper extremity limitations would

not significantly erode the occupational base of sedentary work.”
R. 860.
This determination by the ALJ, viewed in light of the record
as a whole, suffices as an affirmative determination that
plaintiff’s non-exertional limitations were negligible.

If this

finding is supported by substantial evidence, the ALJ was
permitted to rely on the Grids and did not have to consult a
vocational expert.

See Woodmancy v. Colvin, 577 F. App’x 72, 76

(2d Cir. 2014) (vocational expert testimony not required where
ALJ found that claimant could perform unskilled work, and that
Circuit remanded on the ground that "the ALJ provided no
explanation of how he arrived at this conclusion." Id.

13

determination was supported by substantial record evidence);
Lewis v. Colvin, 548 F. App’x 675, 678 (2d Cir. 2013) (ALJ could
rely on Grids after determining that certain mental limitations
“‘had little or no effect on the occupational base of unskilled
light work,’” and that determination was supported by the record
evidence (quoting ALJ Opinion)); Lawler v. Astrue, 512 F. App’x
108, 111-12 (2d Cir. 2013) (reliance on Grids was permissible
where ALJ concluded that claimant’s “‘non-exertional limitations
did not significantly narrow the range of work he can perform,’”
and that determination was supported by substantial evidence
(quoting record)); Jordan v. Comm’r of Soc. Sec., 194 F. App’x
59, 62 (2d Cir. 2006) (ALJ’s failure to “specifically state”
reasons for finding non-exertional limitations negligible “does
not render the ALJ’s factual findings erroneous”); cf. Selian,
708 F.3d at 422 (remanding where ALJ did not determine whether
claimant’s reaching limitation precluded reliance on Grids); Sesa
v. Colvin, 629 F. App’x 30, 33 (2d Cir. 2015) (remanding where
ALJ’s opinion did not discuss purported reaching limitation at
all).4
The ALJ’s finding that plaintiff’s non-exertional
4

Two cases in this district have recently been remanded on
the basis of language similar to that used by the ALJ here. See
Lyde v. Colvin, No. 3:13-CV-00603 (JAM), 2016 WL 53822, at *6-8
(D. Conn. Jan. 5, 2016); Mattioli v. Comm’r of Soc. Sec., No.
3:14-CV-00182 JAM, 2015 WL 4751046, at *5-6 (D. Conn. Aug. 11,
2015). This case is distinguishable because the ALJ’s decision
includes additional discussion specifically addressing
plaintiff’s physical and mental impairments.
14

impairments were negligible is supported by substantial evidence.
Regarding plaintiff’s mental limitations, the ALJ explained that
plaintiff was capable of following “simple instructions” and
performing “routine, repetitive tasks.”

R. 850.

Such a

nonexertional limitation is not significant in terms of its
impact on a claimant’s possible range of work.

See Zabala, 595

F.3d at 410-11 (claimant's limitation to simple instructions did
not require vocational expert testimony).

Turning to plaintiff’s

reaching limitation, substantial evidence supports the ALJ’s
determination that this limitation was also negligible.

As the

ALJ explained, the record contains no indication after July 2007
of “ongoing significant complaints or treatment for upper
extremity symptoms.”

R. 853.

In September 2010, no upper

extremity deficits were recorded during a consultative
examination.

R. 1283-85.

In 2011, plaintiff reported that she

was going to the gym and working out but had decreased her
exercise because of pain and tingling in her arm.

R. 1238.

After a cortisone shot, plaintiff reported that this condition
was “much better,” and a second shot was administered.

R. 1240.

The ALJ concluded that, “[g]iving [plaintiff] the benefit of the
doubt,” her “upper extremity problems contribute to her
limitations to sedentary work but, at most, the evidence supports
limitations to frequent reaching with the upper extremities.”
853.

R.

Such a nonexertional impairment does not preclude reliance

15

on the Grids. See Falcon-Cartagena v. Comm'r of Soc. Sec., 21 F.
App’x. 11, 14 (1st Cir. 2001) (reliance on the Grids proper even
though the plaintiff could not perform constant overhead
reaching).
IV.

Conclusion
Accordingly, the recommended ruling (ECF No. 22) is hereby

approved and adopted.

The motion to reverse the decision of the

Commissioner (ECF No. 20) is denied, and the motion to affirm
(ECF No. 21) is granted.
So ordered this 19th day of May 2016.

/s/ RNC
Robert N. Chatigny
United States District Judge

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