Bromell v. Berryhill

Filing 22

ORDER granting 19 Motion to Reverse the Decision of the Commissioner; denying 21 Motion for Judgment on the Pleadings for the reasons set forth in the attached Ruling. This matter is remanded for additional proceedings. The Clerk's Off ice is instructed that, if any party appeals to this court the decision made after this remand, any subsequent social security appeal is to be assigned to the District Judge or Magistrate Judge who issued the Ruling that remanded the case. The Clerk is directed to enter judgment in favor of the plaintiff and close this case. Signed by Judge William I. Garfinkel on 8/20/18. (Cates, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

PATRICK JEROME BROMELL,
Plaintiff,
v.

No. 3:17-cv-824(WIG)

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.
_____________________________________X

RULING ON PENDING MOTIONS

This is an administrative appeal following the denial of the plaintiff, Patrick Jerome
Bromell’s, application for Title II disability insurance benefits (“DIB”). It is brought pursuant to
42 U.S.C. § 405(g).1 Plaintiff now moves for an order reversing the decision of the
Commissioner of the Social Security Administration (“the Commissioner”), or in the alternative,
an order remanding his case for a rehearing. [Doc. # 19]. The Commissioner, in turn, has

Under the Social Security Act, the “Commissioner of Social Security is directed to make
findings of fact, and decisions as to the rights of any individual applying for a payment under
[the Act].” 42 U.S.C. §§ 405(b)(1) and 1383(c)(1)(A). The Commissioner’s authority to make
such findings and decisions is delegated to administrative law judges (“ALJs”). See 20 C.F.R. §
404.929. Claimants can in turn appeal an ALJ’s decision to the Social Security Appeals Council.
See 20 C.F.R. § 404.967. If the appeals council declines review or affirms the ALJ opinion, the
claimant may appeal to the United States district court. Section 205(g) of the Social Security Act
provides that “[t]he court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C § 405(g).
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moved for an order affirming her decision. [Doc. # 21]. After careful consideration of the
arguments raised by both sides, and thorough review of the administrative record, the matter is
remanded for additional proceedings.
LEGAL STANDARD
“A district court reviewing a final . . . decision [of the Commissioner of Social Security]
pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), is performing an
appellate function.” Zambrana v. Califano, 651 F.2d 842 (2d Cir. 1981). “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, [are]
conclusive . . . .” 42 U.S.C. § 405(g). Accordingly, the district court may not make a de novo
determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. Id.;
Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
court’s function is to first ascertain whether the Commissioner applied the correct legal
principles in reaching her conclusion, and then whether the decision is supported by substantial
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Therefore, absent legal error, a
decision of the Commissioner cannot be set aside if it is supported by substantial evidence.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial evidence is “‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). It must be “more than a scintilla or touch of proof here and there in the record.”
Williams, 859 F.2d at 258. If the Commissioner’s decision is supported by substantial evidence,
that decision will be sustained, even where there may also be substantial evidence to support the
plaintiff’s contrary position. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).

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BACKGROUND
a. Facts
Plaintiff filed an application for DIB on May 20, 2014, alleging a disability onset date of
October 14, 2013. His claim was denied at both the initial and reconsideration levels.
Thereafter, Plaintiff requested a hearing. On December 21, 2015, a hearing was held before
administrative law judge Eskunder Boyd (“the ALJ”). On January 25, 2016, the ALJ issued a
decision denying Plaintiff’s claim. Plaintiff then sought review with the Appeals Council. The
Appeals Council denied review, making the ALJ’s decision the final decision of the
Commissioner. This action followed.
Plaintiff was fifty years old on the date of the hearing before the ALJ. (R. 38). He has a
high school education. (R. 39). He last worked in January 2013 as a tractor trailer driver. (R.
40). He suffered a stroke in February, 2014, and experienced residual effects including
weakness and numbness on the right side of the body, particularly in the right hand and arm, and
some cognitive problems. (T. 36). Plaintiff is right handed. (R. 39).
Plaintiff’s complete medical history is set forth in the Statement of Facts filed by each
side. [Doc. # # 19-1, 21-2]. The Court adopts the facts as set forth collectively and incorporates
these Statements by reference herein.
b. The ALJ’s Decision
The Commissioner must follow a sequential evaluation process for assessing disability
claims. The five steps of this process are as follows: (1) the Commissioner considers whether
the claimant is currently engaged in substantial gainful activity; (2) if not, the Commissioner
considers whether the claimant has a “severe impairment” which limits his or her mental or
physical ability to do basic work activities; (3) if the claimant has a “severe impairment,” the

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Commissioner must ask whether, based solely on the medical evidence, the claimant has an
impairment which “meets or equals” an impairment listed in Appendix 1 of the regulations (the
Listings). If so, and it meets the durational requirements, the Commissioner will consider him or
her disabled, without considering vocational factors such as age, education, and work
experience; (4) if not, the Commissioner then asks whether, despite the claimant’s severe
impairment, he or she has the residual functional capacity to perform his or her past work; and
(5) if the claimant is unable to perform his or her past work, the Commissioner then determines
whether there is other work in the national economy which the claimant can perform. 20 C.F.R.
§ 404.1520 (a)(4)(i)-(v). The claimant bears the burden of proof on the first four steps, while the
Commissioner bears the burden of proof on the final step. McIntyre v. Colvin, 758 F.3d 146, 149
(2d Cir. 2014).
In this case, the ALJ divided Plaintiff’s claim into three different time periods: from the
alleged onset date of October 14, 2013 through January 31, 2014; from February 1, 2014 through
February 10, 2015; and from February 11, 2015 through the date of the hearing.
For the first time period, the ALJ found, at Step One, that Plaintiff had not engaged in
substantial gainful activity since the alleged disability onset date. (R. 15). At Step Two, the ALJ
found that Plaintiff’s cardiomyopathy2 was a severe impairment. (R. 15). The ALJ found, at
Step Three, that this impairment did not meet or equal the severity of one of the listed
impairments. (R. 15-16). Next, the ALJ determined Plaintiff retained the following residual
functional capacity3 prior to February 1, 2014:

2

Cardiomyopathy is a structural or functional disease of heart muscle. See
https://www.merriam-webster.com/dictionary/cardiomyopathy.
3
Residual functional capacity (“RFC”) is the most a claimant can do in a work setting despite his
or her limitations. 20 C.F.R. § 404.1545(a)(1).
4

Plaintiff could perform light work except he could never climb ladders, ropes, or
scaffolds; occasionally climb stairs or ramps; occasionally balance; occasionally
stoop or crouch; never kneel or crawl; occasionally reach overhead; frequently
handle or finger with the right hand but no limits with the left hand; and no
exposure to extreme cold in the work environment. He could perform simple,
routine, repetitive tasks; sustain concentration, persistence, and pace for two-hour
segments; and could interact with others with no problem.
(R. 16). At Step Four, the ALJ found Plaintiff had been unable to perform any past relevant
work since the alleged onset date. (R. 20). Finally, at Step Five, the ALJ relied on the testimony
of a vocational expert (“VE”) to conclude that there were jobs existing in significant numbers in
the national economy Plaintiff could perform. (R. 21). Specifically, the VE testified that
Plaintiff could perform the positions of machine tender, quality control, and office cleaner. (R.
22). Accordingly, the ALJ found Plaintiff was not disabled prior to February 1, 2014.
For the second time period, February 1, 2014 through February 10, 2015, at Step One, the
ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged
disability onset date. (R. 15). At Step Two, the ALJ found that Plaintiff’s severe impairments
included cardiomyopathy and status-post cerebral vascular accident4. (R. 15). The ALJ found,
at Step Three, that these impairments did not meet or equal the severity of one of the listed
impairments. (R. 15-16). Next, the ALJ determined Plaintiff retained the following residual
functional capacity for the period of February 1, 2014 through February 10, 2015:
Plaintiff could perform sedentary work except he must have a sit/stand option in
that he can sit for one hour, alternate to standing position for five minutes, then
resume sitting; he can never climb ladders, ropes, or scaffolds; occasionally climb
stairs or ramps; occasionally balance; occasionally stoop or crouch; never kneel or
crawl; occasionally reach overhead; occasionally handle or finger with the right
hand but no limits with the left hand; and no exposure to extreme cold in the work
environment. He could perform simple, routine, repetitive tasks; he could sustain
concentration, persistence, and pace for two-hour segments; and he could interact
with others with no problem.
4

A cerebrovascular accident is also referred to as a stroke. See https://www.merriamwebster.com/dictionary/cerebrovascular%20accident#medicalDictionary.
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(R. 18-19). At Step Four, the ALJ found Plaintiff had been unable to perform any past relevant
work since the alleged onset date. (R. 20). Finally, at Step Five, the ALJ relied on the testimony
of a vocational expert (“VE”) to conclude that there were no jobs existing in significant numbers
in the national economy Plaintiff could perform during the time period. (R. 22-23).
Accordingly, the ALJ found Plaintiff was disabled during the period of February 1, 2014 through
February 10, 2015. (R. 23).
For the third time period, beginning on February 11, 2015, the ALJ found, at Step One,
that Plaintiff had not engaged in substantial gainful activity. (R. 15). At Step Two, the ALJ
found that Plaintiff’s cardiomyopathy was a severe impairment. (R. 23). The ALJ found that
medical improvement occurred as of February 11, 2015, at which time Plaintiff’s disability
ended. (R. 24). The ALJ further determined that, beginning February 11, 2015, Plaintiff no
longer had a severe impairment or combination of impairments, and that his functional capacity
for basic work activities had increased. (R. 27). Accordingly, the ALJ concluded that Plaintiff’s
disability ended on February 11, 2015. (R. 27).
DISCUSSION
When analyzing the time period of February 1, 2014 through February 10, 2015, the ALJ
assigned great weight to the October 15, 2014 opinion of Dr. Shah, Plaintiff’s primary care
physician. (R. 20). Dr. Shah opined that Plaintiff could never lift and carry less than ten pounds
in a competitive work situation; could rarely twist, stoop, or crouch; could occasionally climb
stairs; and could never climb ladders. (R. 1559). She assessed significant limitations in
reaching, handling, or fingering. (Id.). She opined that Plaintiff could use his right hand and
fingers 10% of the time, could use his right arms to reach 20% of the time, and had no
limitations in the left upper extremity. (Id.). Dr. Shah also opined that Plaintiff would be off6

task for 20% of the work day, meaning that his symptoms would be “severe enough to interfere
with attention and concentration needed to perform even simple work tasks.” (R. 1560). She
stated he would miss about three days of work per month. (Id.). The ALJ, in giving this opinion
great weight, found it was “consistent with the record of evidence as a whole.” (R. 20).
The ALJ continued his analysis for the third time period, and determined that medical
improvement occurred as of February 11, 2015. (R. 24). In support of this determination, the
ALJ discussed occupational therapy records indicating gains Plaintiff made in his right upper
extremity function and strength. (R. 25). The ALJ also discussed Plaintiff’s cognitive deficits
secondary to the stroke, highlighting neurologist reports showing mild cognitive impairment not
at the level of dementia and mild memory symptoms that had not worsened since the stroke. (R.
26). The ALJ evaluated also opinion evidence from 2015.
What is problematic is that the ALJ did not discuss Dr. Shah’s opinion when determining
that Plaintiff’s medical improvement related to the ability to work. While the portions of Dr.
Shah’s opinion pertaining to Plaintiff’s upper right extremity were likely displaced by the more
recent evidence from the occupational therapist documenting increased function, the ALJ did not
discuss how the parts of Dr. Shah’s opinion not pertaining to the right upper extremity would
impact Plaintiff’s ability to work. Specifically, the ALJ did not address Dr. Shah’s opinion that
Plaintiff would be off-task for 20% of the work day and miss work three times per month. While
the ALJ does mention some neurological evidence, this evidence is not at all as conclusive in
showing medical improvement as the occupational therapy records are. Yet, in an earlier part of
his decision, the ALJ gives Dr. Shah’s opinion great weight because it was consistent with the
record evidence. The ALJ does not, however, explain what more recent evidence – if any –
contradicts Dr. Shah’s opinion about Plaintiff’s limitations in all functional realms. Even

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assuming that Plaintiff’s right upper extremity had insignificant functional limitations as of
February 11, 2015, the ALJ did not sufficiently explain how the aspects of Dr. Shah’s opinion
pertaining to Plaintiff’s cognitive impairments were no longer supported by the medical evidence
of record. Accordingly, the Court cannot say that substantial evidence supports the ALJ’s
decision.
Therefore, this matter must be remanded so that the ALJ can explain how Dr. Shah’s
opinion – to which he gives great weight – impacts the post- February 11, 2015 disability
evaluation. In so doing, the ALJ may need to further develop the record. The ALJ should then
continue through the evaluation process.
Conclusion
For the reasons explained above, the Plaintiff’s motion is granted and the
Commissioner’s motion is denied. This matter is remanded for additional proceedings consistent
with this opinion. This is not a recommended ruling. The consent of the parties allows this
magistrate judge to direct the entry of a judgment of the district court in accordance with the
Federal Rules of Civil Procedure. Appeals can be made directly to the appropriate United States
Court of Appeals from this judgment. See 28 U.S.C. § 636(c)(3); Fed.R.Civ.P. 73(c). The
Clerk’s Office is instructed that, if any party appeals to this court the decision made after this
remand, any subsequent social security appeal is to be assigned to the District Judge or
Magistrate Judge who issued the Ruling that remanded the case. The Clerk is directed to enter
judgment in favor of the plaintiff and close this case.

SO ORDERED, this 20th day of August, 2018, at Bridgeport, Connecticut.

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/s/ William I. Garfinkel
WILLIAM I. GARFINKEL
United States Magistrate Judge

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