Axon v. Berryhill
Filing
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ORDER denying 19 Motion to Reverse the Decision of the Commissioner; granting 24 Motion for Judgment on the Pleadings. Signed by Judge Warren W. Eginton on 2/28/2018. (Gould, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL ROBERT AXON,
Plaintiff,
v.
BERRYHILL, Acting Commissioner
Social Security,
Defendant.
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Case No.
3:17cv604 (WWE)
MEMORANDUM OF DECISION ON THE MOTION FOR ORDER REVERSING
COMMISSIONER’S DECISION AND MOTION FOR JUDGMENT ON THE
PLEADINGS
Plaintiff Michael Robert Axon challenges the denial of his application for Social
Security disability benefits and requests reversal of the Commissioner’s decision
pursuant to sentence four or six of 42 U.S.C § 405(g).
judgment on the pleadings.
Defendant has filed a motion for
For the following reasons, the Court will deny the motion
to reverse the Commissioner’s decision and will grant the motion for judgment on the
pleadings.
BACKGROUND
The parties have filed statements of facts that detail plaintiff’s medical history.
Defendant has stipulated to the facts contained within plaintiff’s brief with the exception
of any arguments contained within plaintiff’s statement of facts. The Court
incorporates herein such stipulated facts relative to plaintiff's medical history.
Plaintiff was born in 1983, graduated from college, and worked as an editor for
educational book publishers.
He alleges that he became disabled at the age of 29
years, and he filed a claim for disability insurance benefits on September 13, 2013,
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alleging disability as of November 5, 2012, based on cognitive impairments, profuse
sweating, hand and wrist pain, and dizziness.
security income on September 30, 2013.
He filed an application for supplemental
In a decision dated August 28, 2015, the
Administrative Law Judge found that plaintiff was not disabled within the meaning of the
Social Security Act.
Plaintiff requested Appeals Council review.
On February 24, 2017, the Appeals
Council denied plaintiff’s request for review.
DISCUSSION
In reviewing a final decision of the Commissioner under 42 U.S.C. §§ 405(g) and
1383(c), the district court performs an appellate function.
Zambrana v. Califano, 651
F.2d 842, 844 (2d Cir. 1981); Igonia v. Califano, 568 F.2d 1383, 1387 (D.C. Cir.
1977).
A reviewing court will “set aside the ALJ’s decision only where it is based upon
legal error or is not supported by substantial evidence.”
Balsamo v. Chater, 142 F.3d
75, 79 (2d Cir. 1998). See also Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990)(“As a general matter, when we review a decision denying benefits under the Act,
we must regard the [Commissioner’s] factual determinations as conclusive unless they
are unsupported by substantial evidence”).
“Substantial evidence” is less than a
preponderance, but “more than a scintilla.”
Richardson v. Perales, 402 U.S. 389, 401
(1971).
Substantial evidence means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.
Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938); see Yancey v. Apfel, 145 F.3d 106, 110 (2d Cir. 1998); Williams
v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
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In determining whether the evidence is substantial, the court must “take into
account whatever in the record fairly detracts from its weight.”
v. NLRB, 340 U.S. 474, 488 (1951).
a whole.”
Universal Camera Corp.
In so doing, the Court must “review the record as
New York v. Sec’y of Health and Human Servs., 903 F.2d 122, 126 (2d Cir.
1990).
The ALJ need not “reconcile every conflicting shred of medical testimony.”
Miles v. Harris, 645 F.2d 122, 124 (2d Cir.1981).
The regulations promulgated by the Commissioner establish a five-step analysis
for evaluating disability claims.
Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987); 20
C.F.R. §§ 404.1520 and 416.920.
First, the Commissioner considers if the claimant is,
at present, working in substantial gainful activity.
20 C.F.R. § 416.920(a)(4)(I). If not,
the Commissioner next considers if the claimant has a medically severe impairment. 20
C.F.R. § 416.920(a)(4)(ii).
If the severity requirement is met, the third inquiry is
whether the impairment is listed in Appendix 1 of the regulations or is equal to a listed
impairment. 20 C.F.R. § 416.920(a)(4)(iii); Pt. 404, Subpt. P. App. 1.
disability is granted.
If so, the
If not, the fourth inquiry is to determine whether, despite the
severe impairment, the claimant’s residual functional capacity allows him or her to
perform any past work. 20 C.F.R. § 416.920(a)(4)(iv).
If a claimant demonstrates that
no past work can be performed, it then becomes incumbent upon the Commissioner to
come forward with evidence that substantial gainful alternative employment exists which
the claimant has the residual functional capacity to perform. 20 C.F.R. §
416.920(a)(4)(v).
If the Commissioner fails to come forward with such evidence, the
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claimant is entitled to disability benefits.
Alston, 904 F.2d at 126.
When the reviewing court has “no apparent basis to conclude that a more
complete record might support the Commissioner's decision,” it may remand for the sole
purpose of calculating benefits.
2004).
Butts v. Barnhart, 399 F.3d 277, 385–86 (2d Cir.
However, the reviewing court may remand the matter to allow the ALJ to further
develop the record, make more specific findings, or clarify his or her rationale.
See
Grace v. Astrue, 2013 WL 4010271, at *14 (S.D.N.Y.); see also Butts, 399 F.3d at 385–
86.
Plaintiff challenges the denial on the grounds that the ALJ’s residual functional
capacity (“RFC”) determination was not supported by substantial evidence.
Plaintiff
maintains that defendant should have sought a medical source statement from one of
plaintiff’s treating providers.
Plaintiff also asserts that the ALJ erred by relying upon Dr.
Sach’s vocational expert testimony.
RFC
Where the administrative record is incomplete or the ALJ has applied improper
legal standards, a remand to the Commissioner for further consideration is appropriate.
Baldwin v. Astrue, 2009 WL 4931363, at *28 (S.D.N.Y. Dec. 21, 2009). In assessing
residual functional capacity, the ALJ must review all of the medical and other evidence
of record to determine what the claimant can do in spite of his limitations.
404.1545, 416.945.
conflicts.
20 C.F.R. §
In evaluating the evidence, the ALJ must resolve evidentiary
Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).
Here, the ALJ found that plaintiff had a severe impairment of post-finasteride
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syndrome with associated neurocognitive disorder but that he could perform a range of
light work consisting of simple, routine tasks that did not require interaction with the
public beyond the hand-off of products of materials.
See 20 C.F.R. § 404.1567(b);
416.967(b); SSR 83-10.
As plaintiff points out, the ALJ was not provided with and did not request any
medical source statement.
The Social Security Administration rules provide that
“[m]edical reports should include ... [a] statement about what you [i.e., the Claimant] can
still do despite your impairment(s) ... Although we will request a medical source
statement about what you can still do despite your impairment(s), the lack of the
medical source statement will not make the report incomplete.”
Tankisi v.
Commissioner of Social Security, 521 F. App’x 29, 34 (2d Cir. 2013).
An ALJ is required to seek out additional evidence where there are “obvious
gaps” in the administrative record.
However, the ALJ need not request a medical
opinion from treating physicians where the record medical evidence, including treatment
notes, supports the ALJ’s RFC determination.
Monroe v. Colvin, 676 F. App’x 5, 8-9
(2d Cir. 2017).
The ALJ concluded that plaintiff's severe impairment prevented him from
performing his prior work of editing, but that plaintiff still had the RFC to perform light
work, provided that it did not require him to climb ladders, ropes or scaffolds and that it
did not involve more than occasional kneeling crouching and crawling.
The ALJ based
his determination of plaintiff’s RFC upon treatment records and evaluations, including a
neurological evaluation and neurological treatment notes, indicating that plaintiff had
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only “mild” deficiency across measures of attention, working memory and executive
functioning. He referred to the consultative psychological examination by Dr. Patrick
Russolillo, a licensed psychologist, who found that plaintiff would not be limited in
performing simple routine tasks; and to the state consulting opinions, indicating that
plaintiff could carry out simple routine tasks and had the stress tolerance for a stable
and predictable work environment, although he had moderate limitations in
concentration.
He afforded great weight to the state consulting opinions regarding
plaintiff’s functionality because their opinions were consistent with the record medical
evidence.
The ALJ noted that plaintiff complained about dizziness, sweating and cognitive
issues but was still able to work as a freelance editor on a part-time basis. The ALJ
found that plaintiff’s claims as to the intensity, persistence and limiting effects of his
symptoms was not entirely credible in light of evidence within the medical and other
record evidence. The Court finds no error in the ALJ's assessment of plaintiff's
testimony; the ALJ has discretion to weigh the credibility of testimony in light of other
record evidence.
Genier v. Astrue, 606 F.3d 46, 47 (2d Cir. 2010).
Accordingly, the Court finds that the ALJ’s RFC determination is supported by
substantial evidence in the record, and that the ALJ did not err by failing to procure a
treating physician medical opinion and in his assessment of the evidence.
Vocational Expert
Plaintiff challenges the testimony of vocational expert Dr. Steven Sachs.
Sachs
testified regarding the existence of jobs in the national economy that plaintiff could
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perform.
Plaintiff complains that Sachs used occupational codes from the Dictionary of
Occupational Titles rather than Standard Occupational Classification codes used by the
Bureau of Labor Statistics. He maintains that the Bureau of Labor Statistics reports
data by the Standard Occupational Classification, which can contain a number of
Dictionary of Occupational Titles codes.
Sachs relied upon job incidence information
from U.S. Publishing, a private company that publishes information extrapolated from
the Bureau of Labor Statistics.
Sachs testified that he worked for twenty years using
the U.S. Publishing data and found that its numbers were “within a range" that would be
anticipated for the relevant occupations.
Evidence from a vocational expert may be derived from the Dictionary of
Occupation Titles and also from other reliable publications. See 20 C.F.R. §§
404.1566(d)-(e); 416.966(d)-(e); SSR 00-4p. An ALJ may rely on vocational expert
testimony where the expert identified the sources consulted to determine the incidence
factors.
Galiotti v. Astrue, 266 F. App’x 66, 68 (2d Cir. 2008). Courts have upheld
decisions relying on vocational testimony similar to the instant case.
See Harper v.
Berryhill, 2017 WL 3085806, at *15-16 (D. Conn. July 20, 2017). The Court cannot find
that the ALJ erred by relying on the Sachs’ testimony.
Accordingly, the Court finds that
the ALJ’s decision is supported by substantial evidence in the record.
CONCLUSION
For the foregoing reasons, the Court DENIES the motion to reverse the decision
of the Commissioner [doc. 19] and GRANTS the Motion for Judgment on the Pleadings
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[doc. 24].
The Court finds that the Commissioner’s final decision applies the correct
legal standards and is supported by substantial evidence.
The clerk is instructed to enter judgment in favor of defendant and to close this
case.
/s/Warren W. Eginton___________
Warren W. Eginton
Senior United States District Judge
Dated this 28th day of February 2018 at Bridgeport, Connecticut.
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