Kelly v. Berryhill
Filing
23
ORDER granting 21 Motion to Reverse or Remand the Decision of the Commissioner; denying 22 Motion to Affirm the Decision of the Commissioner for the reasons stated in the attached Memorandum of Decision. The Clerk is directed to close the case. Signed by Judge Vanessa L. Bryant on 3/25/2019. (Bryan, Kelsey)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KENDRIX PAUL KELLY,
Claimant,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Commissioner.
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No. 3:17-CV-1703 (VLB)
March 25, 2019
MEMORANDUM OF DECISION
Claimant Kendrix Paul Kelly (“Mr. Kelly” or “Claimant”) challenges the
Commissioner of Social Security’s final decision to deny his application for
disability benefits pursuant to 42 U.S.C. § 405(g). Mr. Kelly moves to reverse or
remand the decision, arguing that Administrative Law Judge Robert A. DiBiccaro’s
(the “ALJ” or “ALJ DiBiccaro”) findings are not supported by substantial evidence
in the Record and/or were not rendered in accordance with law. Nancy A. Berryhill,
Acting Commissioner of Social Security (“Commissioner”), moves to affirm the
Commissioner’s final decision. For the reasons stated below, the Court DENIES
Commissioner’s motion and GRANTS Claimant’s motion to remand for further
consideration at Step Five of the SSA analysis.
Background
Mr. Kelly was born in 1985 and is a military veteran of the Gulf War Era who
served in Iraq and Afghanistan and was discharged from the army in 2007. [R. 51,
567].1 Mr. Kelly alleged in his initial disability application that he has been unable
1
Citations to the record, [Dkt. 13], are identified as [R. __].
1
to work since February 2011, when he ceased working as a sales associate, due to
PTSD, bipolar disorder, and a back condition. [R. 302-03]. Mr. Kelly has three
relatively small children at home. [R. 1280]. Starting in May 2012, Mr. Kelly has
been seen by medical professionals primarily at the Veterans Affairs Medical
Center (“VAMC”) in Connecticut for a variety of conditions. [R. 463]. There is a
gap in his treatment between September 2012 and March 2014, during which time
Mr. Kelly was incarcerated in Alaska. [R. 557].
I.
Medical History2
On June 12, 2012, Mr. Kelly saw advanced practice registered nurse
(“APRN”) Michel Coral at the department of Veterans Affairs (VA) PTSD Clinic for
an initial visit. [R. 443]. At that time, Mr. Kelly lived with his grandmother and three
uncles and had a fiancée who was pregnant with his second child. [R. 443]. Mr.
Kelly lived in a “crime ridden area” and had witnessed a number of traumatic
events, including his friend get shot in their neighborhood and a fellow soldier kill
himself. [R. 443]. Mr. Kelly attempted suicide by overdose while in the military and
had suicidal thoughts which he had shared with his girlfriend in the past but denied
any current suicidal ideation. [R. 443]. Mr. Kelly noted that he had pursued a job
at Walmart “but had to walk out due to not being able to tolerate all the people
inside.” [R. 443]. He also said he completed a training program to work as a patient
care assistant but was unable to do the job because of back spasms. [R. 444]. The
2
The parties did not file a joint stipulation of facts as required by the social security
standing order. See [Dkt. 15]. In the absence of a stipulation, the Court relied
instead on the facts included by each party along with their motions and
supplemented by the record.
2
back pain, for which he took Meloxicam with little relief, dates back to surgery to
remove a cyst. [R. 444]. Mr. Kelly also took Sertraline to help with his mood and
nightmares, but he still experienced some issues.
[R. 444].
APRN Coral
recommended increasing the dosage and exploring other medications. [R. 444].
She also issued a mental health care plan, with a goal of finding employment he
could maintain. [R. 442].
Mr. Kelly saw APRN Margaret Becker at the VAMC Primary Care Clinic on
June 14, 2012. [R. 436-39]. APRN Becker noted wheezing when Mr. Kelly exercised,
which improved with Symbicort, and chronic mid-back pain, which was not
responding to Meloxicam but experienced some temporary relief with chiropractic
treatments. [R. 435]. APRN Becker noted that Mr. Kelly may experience asthma
because he was not taking his medication and encouraged compliance. [R. 438].
APRN Becker noted that Mr. Kelly’s PTSD seemed to be better as a result of his
resuming the Sertraline and care with APRN Coral. [R. 435]. Mr. Kelly reported that
his PTSD had improved following adjustment of his medication during a June 22,
2012 visit with APRN Becker. [R. 438]. She further advised Mr. Kelly that his
“asthma and lower back pain do not represent a disability – he is able to work from
that perspective.” [R. 440].
Mr. Kelly saw APRN Coral on July 3, 2012. [R. 429]. He told APRN Coral that
the Sertraline was helping with his nightmares and to control his anger, though he
admitted he was missing doses. [R. 429]. APRN Coral told Mr. Kelly that the
Sertraline was not habit forming and instructed him to follow the dosing
instructions. [R. 429].
3
During a visit on July 25, 2012, APRN Coral noted that Mr. Kelly appeared
less depressed, but he still reported nightmares, anxiety, and hypervigilance in
crowds. [R. 422-23]. APRN Coral increased Mr. Kelly’s Sertraline dosage and
prescribed Prazosin. [R. 423].
Mr. Kelly met with personnel at the VA’s Compensated Work Therapy (CWT)
Support Employment Program around the same time. A CWT peer specialist noted
on August 6, 2012 that Mr. Kelly expressed being open to any kind of employment,
noting that he wanted to look into Walmart because he had worked there previously
and had positive relationships with the staff. [R. 420]. Walmart declined to rehire
Mr. Kelly because of past discrepancies with his time card, but Mr. Kelly was
interested in a deli or seafood worker position with another employer. [R. 417-18].
On September 12, 2012, Mr. Kelly again saw APRN Coral. He told her that he
had not yet found a job but planned to continue looking. [R. 411]. He also planned
to start mechanic classes in October, telling APRN Coral that he would use his GI
bill or take out loans if needed. [R. 411]. APRN Coral encouraged his efforts and
provided potential resources for assistance. [R. 411]. Mr. Kelly also said he was
interested in involving a lawyer with his social security disability application, in
hopes of a large retroactive check so he could move out of his grandmother’s
house. [R. 11]. APRN Coral encouraged Mr. Kelly to apply for a residential program
which would provide helpful transitional support and structure. [R. 411].
Mr. Kelly returned to APRN Coral on March 6, 2014, following his release
from prison in Alaska.
[R. 407-08].
Mr. Kelly had been on medication while
incarcerated but had not taken anything since returning to Connecticut in early
4
February. [R. 407-08]. Mr. Kelly and his girlfriend reported that he had depression
alternating with agitation and anger and had significant mood swings, including an
incident when Mr. Kelly took thirteen Percocet pills and held a knife to his own
throat following a fight with his mother, which prompted the visit to APRN Coral.
[R. 407-08]. APRN Coral offered Mr. Kelly voluntary admission for stabilization but
he declined. [R. 407-08]. APRN Coral noted that Mr. Kelly did not display psychotic
symptoms but that “his hypervigilance borders on paranoia.” [R. 408]. She started
Mr. Kelly on an aggressive medication regimen, prescribing Depakote, Prazosin,
and Bupropion. [R. 408].
During the same visit, Mr. Kelly noted that a previous girlfriend with whom
he had a child was in trouble and he wanted to be able to take the child if the court
deemed her unfit. [R. 408]. APRN Coral said she would not be comfortable with
that at the current time, but they could reevaluate the situation when he was stable.
[R. 408]. Mr. Kelly also noted that he was hiring a lawyer to assist him in applying
for social security disability benefits “as he feels unable to cope with working.” [R.
408]. During a visit five days later, Mr. Kelly reported feeling “a lot more mellow”
with no serious anger outbursts. [R. 902]. He reported sleeping better but was still
experiencing some depression. [R. 902]. Mr. Kelly also said that he had filled out
the social security disability paperwork, and APRN Coral said she would fill out the
form when she received it. [R. 902].
On March 20, 2014, Mr. Kelly reported to APRN Coral that he had improved
on the new regimen—sleeping better with no outbursts and generally calmer. [R.
901]. He told her that he was “anxious to complete SSD paperwork,” stating that
5
he felt unable to work at that time but could consider vocational rehabilitation once
he is more stable. [R. 901].
Following a primary care visit on March 24, 2014 and review of laboratory
results,
APRN
Becker
recommended
further
evaluation
for
possible
hyperthyroidism. [R. 898].
Mr. Kelly saw APRN Coral again on April 1, 2014, during which APRN Coral
recommended Benadryl for Mr. Kelly’s reported insomnia. [R. 892]. APRN Coral
noted that Mr. Kelly would continue the psychotropic regiment “as he finds it
helpful to manage his labile mood/anger.” [R. 892]. APRN Coral noted that she
had not seen the social security form yet and Mr. Kelly said he would ask his case
worker to fax it to her. [R. 892]. APRN Coral received the form and filled it out the
next day. [R. 555].
During an April 23, 2014 visit with APRN Coral, Mr. Kelly reported having
continued issues with mood swings, including becoming withdrawn and isolative
after taking his second dose of Bupropion in the afternoon. [R. 648-49]. APRN
Coral noted that it was unclear whether this was due to ongoing mood dysfunction
or over-sedation and reduced his medication dosage. [R. 648]. Mr. Kelly also said
he was anxious about his thyroid issues. [R. 648].
Mr. Kelly met with Dr. Magdalena Bogun, an endocrinology fellow, on May 5,
2014, at the VAMC. [R. 645-58]. Dr. Bogun indicated that Mr. Kelly’s symptoms,
including increased heart rate and very mild tremor, were consistent with
hypothyroidism, and test results were also consistent with Grave’s disease. [R.
571-75, 646].
6
The Claimant saw APRN Coral on May 22, 2014. [R. 883]. APRN Coral notes
that Mr. Kelly was mildly pressured and talkative, but that he said “he feels his
meds are helping greatly with sleep, anger and mood.” Id. She also noted that Mr.
Kelly was about to start taking medication for Grave’s disease, warranting
additional monitoring of his mood and mental status. Id. APRN Coral’s notes from
the visit state that Mr. Kelly was “[v]ery focused on getting SSD as a way to help
him stabilize and work toward longer range goals; he wants to go to school for both
automotive repair and cooking, both of which he loves to do, and then decide which
career he wants to pursue.” Id. She further notes that “[i]t isn[‘]t clear what his
chances are of receiving SSD.” Id.
Mr. Kelly had a follow-up appointment with Dr. Bogun on June 3, 2014, during
which Mr. Kelly reported that his symptoms were much improved—he felt less
anxious and while he still got tired, he believed that was due to a lack of sleep. [R.
641-43].
Mr. Kelly underwent a consultative examination with Dr. Frank Mongillo on
June 9, 2014.
[R. 564-67].
After examination, Dr. Mongillo concluded that,
physically, Mr. Kelly “could certainly do light to moderate work.” [R. 567]. Mr. Kelly
was assessed by Dr. Earl Sittambalam, a medical consultant, on June 12, 2014, who
concluded that Mr. Kelly could perform a range of medium work. [R. 142-43].
During a visit with APRN Coral on June 27, 2014, Mr. Kelly reported that he
had been “turned down again by SSD” and “feels he can’t work competitively
because he gets panicky and angry around other people.” [R. 622]. APRN Coral
noted that Mr. Kelly has “many job skills he could use,” further noting that “he is
7
also applying to take culinary arts at Gateway, his main wish is to be a chef.” Id.
She encouraged Mr. Kelly to call CWT. [R. 858]. At the same visit, Mr. Kelly
admitted to “playing with the dosages of his meds,” including taking his Bupropion
erratically because he thought it made him tired, though he also admitted to taking
Benadryl in the morning and at night. Id. APRN Coral discontinued the Bupropion
and urged him to take full doses of his other medications as directed. Id.
In her August 6, 2014 chart entry, APRN Coral notes that Mr. Kelly was
“complaining of on-going insomnia and some mild irritability/withdrawal” and as a
result adjusted Mr. Kelly’s medication dosage. [R. 616-17]. She noted that it was
“[n]ot entirely clear how much of his symptoms are thyroid driven.” Id.
The Claimant underwent an initial PTSD evaluation with Dr. Elbert G.
Richardson on October 4, 2014. [R. 836]. Mr. Kelly indicated that he had nearly
every symptom of PTSD listed under diagnostic criteria and Dr. Richardson
diagnosed Mr. Kelly with PTSD. [R. 839-41].
On October 28, 2014, Mr. Kelly visited APRN Coral. [R. 833]. He remained
focused on getting benefits, giving APRN Coral another evaluation form.
Id.
During the visit, Mr. Kelly requested to be referred back to CWT. Id.
Mr. Kelly had a follow-up visit with an endocrinologist, Dr. Perdigoto, on
November 3, 2014. [R. 830-32]. Mr. Kelly had stopped taking his Methimazole when
he became sick, potentially with the flu, but reportedly started taking his Atenolol
again, which resulted in less palpitations and tremors. [R. 830]. Dr. Perdigoto saw
Mr. Kelly again on December 1, 2014, when Mr. Kelly reported feeling sleepy and
8
gaining significant weight. [R. 824-26]. Mr. Kelly’s doctors appeared to favor
definitive treatment, surgery or radiation, for his thyroid condition. Id.
APRN Coral saw Mr. Kelly on November 25, 2014, noting that he “[a]ppeared
in good spirits” and had been “granted 50% [service connected] for [PTSD], and
will get a retro[active] check in the mail.”
[R. 827].
Mr. Kelly “asked for
info[rmation] on starting school after the holidays.” Id. APRN Coral reported that
Mr. Kelly “is still pursuing social security disability and has a lawyer involved now,
but hopefully will still work on getting education and a job at some point.” Id.
APRN Coral noted in relation to a January 7, 2015 appointment that Mr. Kelly
“admitted he has been off psych meds, not clear why he stopped but this has been
an ongoing issue. I put them back in for him with an up-tapering schedule and
urged him to comply.” [R. 822].
The Disability Determination Explanation
for
Mr.
Kelly’s
disability
reconsideration relied in part on opinions from Dr. Robert Decarli and Dr. Robert
Mogul, both agency medical consultants, following consultative examinations in
January 2015.
See [R. 163-77].
Mr. Kelly had initially been seen by Drs.
Sittambalam, Hill, and Mongillo in April and June 2014. See [R. 166]. On January
30, 2015, Dr. Robert Mogul concluded that Mr. Kelly was physically capable of a
range of medium work. [R. 170-72]. On January 21, 2015, Dr. Decarli determined
that Mr. Kelly was mentally capable of performing simple work. [R. 172-74]. Dr.
Decarli observed that Mr. Kelly had shown improvement with treatment and was
stable on his medication. [R. 174].
9
In late February 2015, Mr. Kelly was hospitalized at the VAMC for symptoms
attributed to gallbladder sludge, which would later require surgery. [R. 772-818,
1045-49]. Doctors determined that Mr. Kelly was non-compliant with his medication
for Grave’s disease and posited that “RAI [radioactive iodine] ablation may be
better with some chance of preserving thyroid function keeping in mind medication
noncompliance.” [R. 1047].
Mr. Kelly began physical therapy on March 23, 2015 to address his
complaints of lumbosacral radiculopathy down to the backs of his knees,
consistent with “disk involvement and muscle spasms, causing pain, decreased
range of motion and muscle performance.” [R. 1024-26]. The condition improved
with Tylenol, exercise, and electric stimulation. [R. 1024]. Mr. Kelly had several
additional rounds of physical therapy. [R. 1025, 1014-15, 1006-07, 991-92, 997-98,
999-1000, 1156-59]. During the fourth session, a home traction unit was prescribed.
Id.
In April 2015, Mr. Kelly was treated for his gall bladder and thyroid issues,
including radioactive iodine treatment so that the gall bladder surgery could take
place. [R. 1008-13]. Also in April, Mr. Kelly underwent audiological evaluation for
complaints of tinnitus and loss of hearing, which showed hearing within normal
limits and excellent speech recognition ability. [R. 1002].
During a May 21, 2015 primary care clinic appointment with Dr. William
Johns, Mr. Kelly reported improvement in his abdominal pain and hyperthyroid
symptoms.
[R. 993].
Dr. Johns said he would refer Mr. Kelly for surgical
consultation once Mr. Kelly was euthyroid (having a normal functioning thyroid).
10
[R. 995]. At the same appointment, Mr. Kelly complained of back pain—he had
gained significant weight and had been lifting children—and requested narcotics.
[R. 993-95].
Dr. Johns recommended tapering Mr. Kelly off of narcotics and
suggested he may need a physiatry referral. Id. On May 29, 2015, the physical
therapist deemed Mr. Kelly to have reached maximum benefit from physical
therapy after the sixth and final session and Mr. Kelly was discharged. [R. 992].
Mr. Kelly saw Dr. Perdigoto on June 15, 2015. [R. 988]. Dr. Perdigoto noted
Mr. Kelly’s general noncompliance with his medications and getting blood work
done. Id. He further noted that Mr. Kelly appeared overall euthyroid that day but
that some of his symptoms pointed to hyperthyroidism and hypothyroidism. Id.
Dr. Perdigoto emphasized to Mr. Kelly the importance of getting bloodwork done
until he achieved euthyroid state. Id.
Mr. Kelly also saw physiatrist Dr. John W. O’Brien on July 15, 2015 regarding
his back pain. [R. 978-83]. Dr. O’Brien recommended a home exercise program
and noted that Mr. Kelly’s functional status had no limitations. [R. 979].
During Mr. Kelly’s hearing loss and tinnitus evaluation on August 12, 2015,
he reported that the condition was “bothersome to him.” [R. 1296-1301]. The
assessment concluded that he had normal hearing and that any impairment did not
meet the criteria to be considered a disability for the VA and would not impact
ordinary conditions of daily life, including ability to work. [R. 1299].
Mr. Kelly had an appointment with Dr. Johns on August 28, 2015 and reported
that he had no abdominal symptoms at that time. [R. 1283]. He again requested
narcotics for back pain but also admitted to using marijuana, via a marijuana card,
11
for his PTSD.
Id.
During a November 17, 2015 visit with Dr. Johns, he
recommended another physiatry reevaluation for Mr. Kelly, as Mr. Kelly had been
prescribed opioids for his back pain but seemed not to be taking them. [R. 1263].
Mr. Kelly saw APRN Coral again on December 11, 2015, after a year of no
contact, reportedly because Mr. Kelly “didn[‘]t feel the need to come in or take
psych meds because he thought he was doing well.” [R. 1259]. He returned
because his son had behavioral problems and Mr. Kelly reported having a hard
time dealing with the stress. Id. APRN Coral noted that no psychiatric medication
was indicated at that time and also noted that Mr. Kelly’s toxicology screen was
negative. Id. Mr. Kelly had been prescribed Percocet for his back pain but after
additional screens indicating he was not taking the medication, it was determined
at a January 11, 2016 visit that he was “no longer suitable for continued use of a
controlled substance [due to] concern of diversion.” [R. 1243].
Mr. Kelly returned to see APRN Coral on April 6, 2016, requesting “a letter”
to give DCF. [R. 1230-31]. Mr. Kelly still stated that he felt like he did not need
psychiatric medication and mentioned that he had been going to school to become
an exterminator. Id. He also mentioned his interest in cooking, noting that he
“hasn[‘]t settled on a clear path to employment” yet. Id. APRN Coral noted that
Mr. Kelly showed no signs of depression or mania and that Mr. Kelly said he was
not troubled by PTSD symptoms currently. Id. APRN Coral noted that “[a]t last
contact [Mr. Kelly] was trying to get rated as permanently unemployable by VA and
also get SSD.” Id. She noted that Mr. Kelly “now has a 70% rating, which he was
trying to get as permanent and total and was trying to get SSD; however he still
12
talks about schooling and jobs so unclear what his work capacity actually is.” Id.
She also noted that it was “unclear what he wants from VA other than
documentation to help [him with] whatever court cases he is facing.” Id.
II.
ALJ Decision
On March 7, 2014, Mr. Kelly applied for disability insurance benefits and
supplemental security income citing an onset date of February 1, 2011. [R. 166276]. His claims were initially denied on June 19, 2014 and on reconsideration on
February 3, 2015. [R. 194-201, 208-223]. He thereafter requested a hearing, which
was held before ALJ DiBiccaro on June 30, 2016. [R. 61-132].
ALJ DiBiccaro conducted a hearing after which he rendered an opinion on
February 1, 2017, denying Mr. Kelly’s request for disability insurance benefits. [R.
11-26]. ALJ DiBiccaro’s conclusions are as follows.
ALJ DiBiccaro found that Mr. Kelly had not engaged in substantial gainful
employment since his onset date of February 1, 2011. [R. 14]. He determined that
Mr. Kelly suffered from multiple severe impairments, including bilateral hearing
loss, tinnitus, post-traumatic stress disorder, personality disorder, lumbar
radiculopathy, Grave’s disease (hyperthyroidism), asthma, and bipolar disorder.
[R. 14]. ALJ DiBiccaro concluded that Mr. Kelly’s severe impairments did not
individually or collectively meet or medically equal the severity of a listed
impairment under 20 CFR Part 404, Subpart P, Appendix 1. [R. 14]. Mr. Kelly does
not challenge any of these findings.
ALJ DiBiccaro then determined that Mr. Kelly has the residual functional
capacity (“RFC”) to perform light work defined as involving:
13
[L]ifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category when it requires a
good deal of walking or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work,
you must have the ability to do substantially all of these activities.
20 C.F.R. §§ 404.1567(b) and 416.967(b). In addition, the ALJ imposed the following
limitations:
The claimant can occasionally balance, crouch, stoop, bend, crawl,
kneel, and climb; can never climb ladders or scaffolds; can frequently
handle, finger, and feel with his upper extremities; can work in a
setting free of concentrated exposure to dust, gases, fumes,
chemicals, and other respiratory irritants; can work in a setting free of
concentrated exposure to extreme heat, extreme cold, and humidity;
can work in a setting free of hazards, such as dangerous machinery
and unprotected heights; can work in a setting free of loud
background noises; can occasionally interact with supervisors and
co-workers and those interactions should be brief and superficial; can
work in a setting where he can avoid teamwork or close collaboration
with others; can work in a setting free of interaction with the general
public; and can perform work that requires less than 30 days to learn
and involves only routine, repetitive tasks.
[R. 16].
In making this evaluation, ALJ DiBiccaro considered “all the evidence with
consideration of the limitations and restrictions imposed by the combined effects
of all the claimant’s medically determinable impairments.”
[R. 17].
First, he
evaluated Mr. Kelly’s credibility. He found that Mr. Kelly’s impairments “could
reasonably be expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence
in the record.” [R. 17].
14
Next, ALJ DiBiccaro considered the medical opinions, granting “some
weight” to the consultative examination of Dr. Frank Mongillo; “little weight” to the
mental impairment questionnaire completed by treating source APRN Michel Coral,
and signed by attending medical doctor, Dr. Dolores Vojvoda; and “significant
weight” to the Veterans Administration’s disability rating.
[R. 20-22].
ALJ
DiBiccaro also evaluated the opinions of Mr. Kelly’s other medical sources: giving
“little weight” to the additional mental impairment questionnaires completed by
treating medical source APRN Coral and “little weight” to the physical functional
capacity assessment and mental function capacity assessment provided by the
agency medical consultants at the initial and reconsideration levels. [R. 22-23].
ALJ DiBiccaro next concluded that Mr. Kelly has no past relevant work. [R.
24]. He also determined that Mr. Kelly was a “younger individual,” age 25, at the
alleged disability onset date, who has a high school education and is able to
communicate in English. [R. 24]. Considering Mr. Kelly’s age, education, work
experience, and RFC, the ALJ determined that there are jobs existing in significant
numbers in the national economy that Mr. Kelly can perform. [R. 24].
In coming to this conclusion, ALJ DiBiccaro relied on the testimony of a
vocational expert, Mr. Calandra. Based on the ALJ’S hypothetical, which asked
him to assume, among the other RFC limitations, that the person would only be
able to perform “{o]ccasional reaching, with the nondominant left upper extremity
and no reaching overhead with the left upper extremity [and] [f]requent use of the
upper extremities for handling, fingering and feeling,” Mr. Calandra opined that Mr.
Kelly would be able to perform the requirements of representative occupations
15
such as mail clerk, with 100,000 positions nationally, assembler, with 900,000
positions nationally, and solderer, with 50,000 positions nationally. [R. 14-15, 2425].
The ALJ removed the hypothetical reaching limitation from Mr. Kelly’s RFC
in light of the clinical records from the VA showing no limitations to Mr. Kelly’s left
shoulder. [R. 25]. The ALJ still considered the vocational expert’s opinion, as the
hypothetical presented was more limited than Mr. Kelly’s final RFC determined by
the ALJ. [R. 25]. The ALJ declined to accept the vocational expert’s opinion that a
person with Mr. Kelly’s RFC could perform work as a solderer or assembler given
that both jobs involve loud background noise, but accepted the vocational expert’s
opinion that such a person could perform work as a mail clerk. [R. 25].
ALJ DiBiccaro considered and overruled Mr. Kelly’s objections to the
vocational expert’s testimony regarding his absence from the rest of the hearing,
as to his qualifications, and as to his methodology. [R. 25]. Specifically, the ALJ
overruled Mr. Kelly’s objection as to the expert’s methodology explaining that “the
vocational expert described in detail his methodology for determining the numbers
of jobs available, and the undersigned is satisfied Mr. Calandra’s methodology is
sound.” [R. 25].
Based on all of the above, ALJ DiBiccaro concluded that Mr. Kelly had not
been under disability, as defined by the Social Security Act (“SSA”), from February
1, 2011 through the date of his decision. [R. 25].
This appeal ensued on October 10, 2017 and was fully briefed on April 20,
2018.
16
Discussion
“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.§ 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 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
ascertain whether the Commissioner applied the correct legal principles in
reaching his/her conclusion, and whether the decision is supported by substantial
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Therefore, absent
legal error, this Court may not set aside the decision of the Commissioner if it is
supported by substantial evidence. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982).
Further, 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).
Thus, “[i]n reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by substantial
evidence in the record and were based on a correct legal standard.” Lamay v.
Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (citing 42 U.S.C. § 405(g)).
“Substantial evidence is more than a mere scintilla.
17
It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Id. (internal quotation marks and citations omitted).
“[A district court] must
consider the whole record, examining the evidence from both sides, because an
analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Petrie v. Astrue, 412 F. App’x 401, 403–04 (2d Cir. 2011) (quoting
Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)) (internal
quotation marks omitted). “Even if the Commissioner’s decision is supported by
substantial evidence, legal error alone can be enough to overturn the ALJ’s
decision.” Ellington v. Astrue, 641 F. Supp. 2d 322, 328 (S.D.N.Y. 2009) (citing
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
The Social Security Act establishes that benefits are payable to individuals
who have a disability. 42 U.S.C. § 423(a)(1). “The term ‘disability’ means . . . [an]
inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . .” 42 U.S.C. § 423(d)(1). An
“inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment must be one 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.” 42 U.S.C. § 423(d)(1)(A).
In order to determine whether a claimant is disabled within the meaning of
the SSA, the ALJ must follow a five-step evaluation process as promulgated by the
Commissioner:
1.
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity (“Step One”).
18
2.
If she is not, the [Commissioner] next considers whether the claimant
has a “severe impairment” which significantly limits her physical or
mental ability to do basic work activities (“Step Two”).
3.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations (“Step Three”).
4.
If the claimant does not have a listed impairment, the fourth inquiry is
whether, despite the claimant’s severe impairment, she has the Residual
Functional Capacity (“RFC”) to perform her past work (“Step Four”).
5.
Finally, if the claimant is unable to perform her past work, the
[Commissioner] then determines whether there is other work which the
claimant could perform (“Step Five”).
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citing 20 C.F.R. § 404.1520).
A claimant’s residual functional capacity (“RFC”) is determined by the ALJ’s
assessment of the claimant’s capacity to work, taking into consideration the extent
to which the claimant’s impairment(s) and related symptoms limit what the
claimant can do in a work setting. 20 C.F.R. §§ 404.1545; 404.1546. A claimant’s
RFC is “what an individual can still do despite his or her limitations.” SSR 96–8p,
Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional
Capacity in Initial Claims (“SSR 96–8p”), 1996 WL 374184, at *2 (S.S.A. July 2, 1996);
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96–8p). “Ordinarily,
RFC is the individual’s maximum remaining ability to do sustained work activities
in an ordinary work setting on a regular and continuing basis, and the RFC
assessment must include a discussion of the individual’s abilities on that basis.”3
SSR 96–8p, 1996 WL 374184, at *2.
3
The determination of whether such work exists in the national economy is made
without regard to: 1) “whether such work exists in the immediate area in which [the
claimant] lives;” 2) “whether a specific job vacancy exists for [the claimant];” or 3)
19
“A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or
an equivalent work schedule.” Id.; Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir.
2013) (defining RFC as “an individual’s ability to do sustained work-related
physical and mental activities in a work setting on a regular and continued basis”)
(quoting SSR 96–8p, 1996 WL 374184, at *1).
RFC is
a comprehensive “assessment based upon all of the relevant
evidence . . . [which evaluates a claimant’s] ability to meet certain demands of jobs,
such as physical demands, mental demands, sensory requirements, and other
functions.” 20 C.F.R. § 220.120(a). An ALJ must consider both a claimant’s severe
impairments and non-severe impairments in determining his/her RFC. 20 C.F.R. §
416.945(a)(2); De Leon v. Sec’y of Health & Human Servs., 734 F.2d 930, 937 (2d Cir.
1984).
“At Step Five, the Commissioner must determine that significant numbers
of jobs exist in the national economy that the claimant can perform.” McIntyre v.
Colvin, 758 F.3d 146, 151 (2d Cir. 2014). “[W]ork which exists in the national
economy means work which exists in significant numbers either in the region
where such individual lives or in several regions of the country.” 42 U.S.C. §
423(d)(2)(A). While the claimant has the general burden of proving his or her
disability within the meaning of the Act, at Step Five, the burden shifts to the
Commissioner to show that there is other work that the claimant can perform.
“whether [the claimant] would be hired if he applied for work.” Bowen v. Yuckert,
482 U.S. 137, 140 (1987) (internal quotation marks omitted).
20
McIntyre, 758 F.3d at 150 (citing Brault v. Soc. Sec. Admin., 683 F.3d 443, 445 (2d
Cir. 2012) (per curiam)).
Here, Mr. Kelly challenges ALJ DiBiccaro’s finding that Mr. Kelly was not
disabled within the meaning of the Act from February 1, 2011 through February 1,
2017, the date of the Commissioner’s decision. In particular, Mr. Kelly argues that
ALJ DiBiccaro did not follow the treating physician rule by giving little weight to
the opinions of APRN Coral and Dr. Vojvoda and the State Agency documentreviewers, by purporting to give “great weight” to the VA’s disability rating but
seemingly going against its conclusions, and by failing to give meaningful
consideration to the opinions of Drs. Richardson and Connolly. [Dkt. 21 at 21-22].
Additionally, Mr. Kelly argues that ALJ DiBiccaro’s vocational findings are flawed
due to his reliance on the testimony of vocational expert (“VE”) Mr. Calandra, who
had not heard the testimony regarding Mr. Kelly’s conditions but only answered
the ALJ’s hypothetical and whose methods Mr. Kelly argues are flawed. Id. at 3138.
I.
Evaluation of Opinion Evidence – Treating Physician Rule
The SSA recognizes a “treating physician” rule of “deference to the views of
the physician who has engaged in the primary treatment of the claimant.” GreenYounger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
“A treating physician’s
statement that the claimant is disabled cannot itself be determinative.” Snell v.
Apfel, 177 F.3d 128, 133 (2d Cir. 1999). However, SSA regulations advise that a
treating source’s opinions “on the issue(s) of the nature and severity of [the
claimant’s] impairment(s)” will be given “controlling weight” if the opinion is “well
21
supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in [the] case record.”
20 C.F.R. § 404.1527(d)(r); see also Green-Younger, 335 F.3d at 106.
Thus, “[a]lthough the treating physician rule generally requires deference to
the medical opinion of a claimant’s treating physician, . . . the opinion of the treating
physician is not afforded controlling weight where . . . the treating physician issued
opinions that are not consistent with other substantial evidence in the record.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (internal citations omitted) (citing
Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993); Veino v. Barnhart, 312 F.3d 578,
588 (2d Cir. 2002)). An ALJ who declines to give controlling weight to the medical
opinion of a treating physician must consider various factors to determine how
much weight to give the opinion. Id. (citing 20 C.F.R. § 404.1527(d)(2)). These
factors include: “(i) the frequency of examination and the length, nature and extent
of the treatment relationship; (ii) the evidence in support of the treating physician’s
opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether
the opinion is from a specialist; and (v) other factors brought to the Social Security
Administration’s attention that tend to support or contradict the opinion.” Id.
Additionally, the ALJ must “comprehensively set forth his reasons for the weight
assigned to a treating physician’s opinion.” Cichocki v. Astrue, 534 F. App’x 71,
75 (2d Cir. 2013) (citing Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)).
a. APRN Coral’s Opinions
APRN Coral provided three mental impairment questionnaires regarding Mr.
Kelly, dated April 2, 2014, November 5, 2014, and January 7, 2015, the first of which
22
was also signed by Dr. Vojvoda. [R. 552-555, 712-15, 718-20]. In each, APRN Coral
opined that Mr. Kelly had marked to extreme issues with adaptation, social
interaction, sustaining concentration, and understanding and memory. Id. ALJ
DiBiccaro determined that the assessment by APRN Coral and signed by the Dr.
Vojvoda would be given “little weight” because the opinions were not consistent
with the longitudinal record evidence. [R. 20]. Mr. Kelly argues that there is a “lack
of substantial evidence contradicting the stated opinions of APRN Coral and Dr.
Dolores Vojvoda,” and the ALJ should therefore have given the opinions
controlling weight. [Dkt. 21-1 at 27]. Additionally, Mr. Kelly asserts that the ALJ
had a duty to get more information from the treating physician in order to reconcile
inconsistencies. Id. at 29.
First, the Court notes that APRN Coral, a nurse, is not an “acceptable medical
source.” 20 C.F.R. § 404.1502. The treating physician rule therefore does not apply
to her opinion.
Bushey v. Colvin, 552 F. App’x 97, 97-98 (2d Cir. 2014).
Consequently, her opinion is not entitled to controlling weight. See id.; 20 C.F.R.
§§ 404.1502, 404.1513, 404.1527, 416,902, 416.913, 416.927.
The fact that Dr.
Vojvoda signed the April 2, 2014 questionnaire does not impact this conclusion.
See [R. 555]. There is no evidence that Dr. Vojvoda examined Mr. Kelly, and
certainly not to the extent required to be considered a treating physician. As such,
the presence of her signature does not entitle said questionnaire to controlling
weight. See Monguer v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983).
The Commissioner must evaluate every medical opinion received
regardless of the source.
See 20 C.F.R. §§ 404.1527(d), 416.927(d). “Medical
23
opinions are statements from acceptable medical sources that reflect judgments
about the nature and severity of [the claimant’s] impairment(s), including [his or
her] symptoms, diagnosis and prognosis, what [he or she] can still do despite
impairment(s), and [his or her] physical or mental restrictions. 20 C.F.R. §
404.1527(A)(1). Because APRN Coral rendered a medical opinion, even though she
is not an “acceptable medical source,” the ALJ evaluated her opinions and stated
what weight he gave them using the prescribed factors.
With those factors in mind, ALJ DiBiccaro granted “little weight” to the
mental impairment questionnaires completed by APRN Coral. [R. 20-22]. ALJ
DiBiccaro explained that the extremity of the limitations APRN Coral attributed to
Mr. Kelly suggested that he should be institutionalized or have a conservator
managing his affairs, while the record shows that Mr. Kelly has had only sporadic
mental health treatment and showed improvement when taking his medication
consistently.
[R. 20].
ALJ DiBiccaro also emphasized that it was difficult to
reconcile APRN Coral’s opinion that Mr. Kelly has serious to very serious problems
in all areas of task performance with the fact that Mr. Kelly was actively seeking
work, completed a four-week certification course, and spent multiple hours a day
writing poetry. [R. 21]. ALJ DiBiccaro concluded that APRN Coral had not provided
a persuasive rationale supported by evidence to justify her opinion that Mr. Kelly
had such extreme limitations which render him essentially nonfunctional. Id.
After careful consideration of the entire record and the ALJ’s opinion, the
Court concludes that ALJ DiBiccaro properly assessed APRN Coral’s opinions.
24
ALJ DiBiccaro provided good reasons supported by substantial evidence for the
weight given the APRN Coral’s opinion.
APRN Coral reported that Mr. Kelly had frequent problems or limited ability
to use good judgment, use coping skill, handle frustration, respond appropriately
to others, get along with others, carry out multiple-step instructions, focus long
enough to finish simple activities or tasks, change from one simple task to another,
and perform basic activities at a reasonable pace. [R. 552-555, 712-15, 718-20].
Meanwhile, APRN Coral’s treatment notes suggest that Mr. Kelly had the ability to
take care of his children, pursue employment options, attend mechanics courses,
apply for cooking school, and write poetry. See supra at p. 2-13. Mr. Kelly argues
that APRN Coral’s notations of such activities and interests do not evidence the
kind of capabilities the ALJ concluded such that APRN Coral’s opinion was
contradicted. See [Dkt. 21 at 24]. For instance, Mr. Kelly’s Motion argues that the
record does not indicate how many days a week or hours a day Mr. Kelly’s
mechanic classes were or that Mr. Kelly’s writing was “anything other than
gibberish.” Id. While ALJ DiBiccaro could have come to such conclusions based
on the record, it was reasonable for him to conclude otherwise. Presence of
alternative interpretations of the record evidence does not require reversal of the
ALJ’s decision.
evidence
is
See McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If
susceptible
to
more
than
one
rational
interpretation,
the
Commissioner’s conclusion must be upheld.”)
APRN Coral’s notes also reflect Mr. Kelly’s interest in a career and obtaining
additional education in his passion areas—automotive repair and cooking. APRN
25
Coral’s notes do not suggest that she discouraged Mr. Kelly from such aspirations
but show that she believed that Mr. Kelly had plenty of job skills and referred him
to the VA’s Compensated Work Therapy (CWT) Support Employment Program.
See, e.g., [R. 420]. Mr. Kelly’s lack of success through CWT was not due to severe
disability and complete inability to work, but rather, APRN Coral’s notes indicate
issues resulting from Mr. Kelly’s criminal record. See [R. 421-22, 426]. Additionally,
Mr. Kelly also sought work at Walmart, but the company declined to rehire Mr.
Kelly because of past discrepancies with his time card. [R. 417-18]. APRN Coral’s
treatment notes reasonably weigh against a finding of total disability and support
the ALJ’s decision. See Cichocki, 729 F.3d at 178; Poupore v. Astrue, 566 F.3d 303,
307 (2d Cir. 2009).
Additionally, as the ALJ noted, the record shows that Mr. Kelly’s mental
health condition improved when he complied with his treatment plan. Mr. Kelly
offers no evidence to contradict this finding. When Mr. Kelly saw APRN Coral in
December 2015 for the first time in over a year, he indicated that he was doing well
and felt he did not need medication. [R. 1259]. Mr. Kelly returned to see APRN
Coral on April 6, 2016, requesting “a letter” to give DCF. [R. 1230-31]. Mr. Kelly
stated that he felt he did not need psychiatric medications and mentioned that he
had been going to school to become an exterminator and again mentioned his
interest in a career in cooking. Id. APRN Coral’s notes from that visit indicate that
Mr. Kelly showed no signs of depression or mania and that Mr. Kelly said he was
not troubled by PTSD symptoms. Id. This evidence suggests that Mr. Kelly did not
need mental health treatment for long periods of time and also suggests that he
26
only returned to APRN Mr. Kelly in order to get additional documentation for his
child custody and SSD cases.
Because substantial evidence contradicted APRN Coral’s assessments, ALJ
DiBiccaro accordingly discounted the weight given to those opinions.
ALJ
DiBiccaro properly considered the relevant factors in deciding to give APRN
Coral’s opinions little weight. ALJ DiBiccaro’s findings of improvement to Mr.
Kelly’s mental condition were based on substantial evidence and supports the
ALJ’s conclusion that Mr. Kelly is not disabled. See Zabala v. Astrue, 595 F.3d 402,
410 (2d Cir. 2010); Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983). Mr.
Kelly’s arguments to the contrary, see [Dkt. 21 at 22-25], offer alternative
interpretations of the record, but by no means convince this Court that ALJ
DiBiccaro’s conclusions were not support by substantial evidence.
II.
Evaluation of Opinion Evidence – Other Opinions
All other opinion evidence highlighted by Mr. Kelly, see [Dkt. 21 at 20-22], are
non-treating opinion evidence. This includes the consultative examination of Dr.
Mongillo [R. 566-69], the State Agency medical consultants’ physical functional
capacity assessments [R. 133-46, 163-76], and the State Agency medical
consultants’ mental functional capacity assessments [R. 133-46, 163-76]. Mr. Kelly
seems to suggest that these opinions did not receive the meaningful consideration
they deserved. See [Dkt. 21 at 22]. The Court disagrees. ALJ DiBiccaro considered
the factors guiding the determination of how much weight to give to medical
opinions of non-treating physicians and substantial evidence supports his
conclusions.
27
Dr. Mongillo examined Mr. Kelly on June 9, 2014 and concluded that Mr. Kelly
“could certainly do light to moderate work.”
[R. 564-67].
In assessing Dr.
Mongillo’s opinion, the ALJ recognized that Dr. Mongillo was not a specialist and
did not treat Mr. Kelly but accounted for the fact that Dr. Mongillo performed a
thorough physical examination of Mr. Kelly. Additionally, the ALJ noted that Dr.
Mongillo’s opinion was consistent with Mr. Kelly’s testimony as well as the
objective medical evidence. Accordingly, ALJ DiBiccaro granted “some weight” to
the opinion. The Court concludes that this decision was consistent with the law
and supported by substantial evidence. Because Dr. Mongillo was not a treating
physician his opinion was not entitled to controlling weight. The other factors
indicate that the opinion deserved some weight, as ALJ DiBiccaro concluded.
The ALJ granted “little weight” to the physical functional capacity (PFC)
assessments and mental functional capacity (MFC) assessments provided by the
State Agency medical consultants at the initial and reconsideration levels for good
reason. [R. 23]. Drs. Sittambalam and Hill performed the physical and mental
residual functional capacity assessments during Mr. Kelly’s initial review and Drs.
Mogul and Decarli performed the assessments on reconsideration. See [R. 133146, 163-177]. At both the initial and reconsideration stages, the doctors concluded
that Mr. Kelly’s “condition results in some limitations to [his] ability to perform
work related activities” but “is not severe enough to keep [him] from working.” [R.
146, 176]. Their assessments are relatively consistent with the ALJ’s and indeed
would have counseled fewer restrictions on Mr. Kelly’s ability to work.
28
It is unclear how Mr. Kelly believes these opinions should have been valued
or would support the argument that he is unable to work.
Regardless, ALJ
DiBiccaro explained that the consultants did not treat or examine Mr. Kelly and did
not have access to the more recent evidence submitted at the hearing level in
formulating the evaluations. Id. Additionally, ALJ DiBiccaro noted that the PFC
assessment was not consistent with Dr. Mongillo’s opinion that Mr. Kelly could
perform light work. Id. Accordingly, ALJ DiBiccaro considered the assessments
but gave them little weight and evaluated the entirety of the record to come to his
conclusion that Mr. Kelly could perform light work with certain limitations. Id.
The Court concludes that ALJ DiBiccaro’s treatment of the non-treating
physician medical evidence was legally appropriate and supported by substantial
evidence in the record.
III.
Evaluation of the Compensation and Pension Rating
In connection with Mr. Kelly’s application for veterans’ compensation
benefits, the VA conducted assessments regarding Mr. Kelly’s disabilities and
ability to work. As part of this process, the VA conducted PTSD assessments on
Mr. Kelly.
Ultimately, the VA determined that he is 70% disabled and 100%
unemployable. See [R. 50-60]. Mr. Kelly argues that ALJ DiBiccaro failed to give
appropriate weight to that rating.
Determinations of other governmental agencies that a social security
disability benefits claimant is disabled are not binding on the ALJ.
Cutler v.
Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975); Hankerson v. Harris, 636 F.2d 893,
896-97 (2d Cir. 1980). Such decisions are entitled to some weight but are not
29
conclusive or even entitled to great weight. Id. The VA determination is another
piece of evidence to be weighed by the ALJ along with the oral testimony and
medical evidence.
Id.; see also Machia v. Astrue, No. 2:08-cv-103, 2009 WL
3806326, at *9 (D. Vt. Nov. 16, 2009) (“The point of the Second Circuit’s admonition
to accord VA determinations ‘some weight’ is that in addition to oral testimony and
medical evidence, VA rating decisions are another item to be placed on the
evidentiary scale.”); Fitzgerald v. Astrue, 2:08-cv-170, 2009 WL 4571762, at *6 (D.
Vt. Nov. 30, 2009) (same). This allows the ALJ to account for the differences
between the criteria used in the VA and the SSA programs for determining disability
and ability to work. See Allord v. Barnhart, 455 F.3d 818, 820 (7th Cir. 2006) (“[T]he
Department of Veterans Affairs requires less proof of disability than the Social
Security Administration does.”).
The ALJ makes the ultimate disability
determination based on the entirety of the evidence in the record.
While Mr. Kelly admits that the VA decision is not entitled to controlling
weight, Mr. Kelly seems to argue that, because the VA concluded that Mr. Kelly had
a 10% disability for tinnitus and 70% disability for PTSD leading to a finding of
unemployability without accounting for the conditions which the VA found not to
be service connected—bi-polar disorder, bilateral hearing loss, low back condition,
and Grave’s disease—the ALJ’s finding that Mr. Kelly is not disabled when taking
into account those additional conditions could not have given sufficient weight to
the VA determination. [R. 28-29]. The Court does not agree. The VA decision is
entitled to some weight, but by no means controls the outcome of Mr. Kelly’s case.
The ALJ sufficiently considered the VA’s decision, adjusting the RFC to a
30
reasonable degree but limiting the extent in light of the longitudinal record
evidence.
The VA’s unemployability decision explains that Mr. Kelly submitted his
claim “stating that it is [his] posttraumatic stress disorder (PTSD) which is causing
[him] to be individually unemployable.” [R. 53]. The VA considered the PTSD
examinations conducted by the VA examiners in evaluating this claim.
The
decision explains that “[t]he VA examiner reported on September 2015 that, ‘[Mr.
Kelly] reports that the following symptoms have had a detrimental impact upon his
ability to function in the workplace: Social isolation, chronically disturbed sleep,
episodes of uncontrolled anger and rage, difficulty concentrating, obsessive
hypervigilance, exaggerated startle response, and depressed mood.” [R. 53]. The
VA examiner went on to state that the level of the symptoms indicate that they
disrupt Mr. Kelly’s ability to relate to superiors and co-workers and impair his
ability to accomplish tasks for which he is being paid. [R. 53]. The VA concluded,
“[b]ased on the fact that the VA examiner described symptoms that are preventing
you from being employable we have granted individual unemployable [sic].” [R.
53].
The ALJ gave “significant weight” to the disability rating, “as reflected in the
numerous reductions in [Mr. Kelly’s] residual functional capacity.” [R. 22]. The
rating prompted ALJ DiBiccaro to assess significant restrictions to Mr. Kelly’s RFC
beyond the restrictions indicated by the opinions of the other medical examiners,
including those of Drs. Hill and Decarli. [R. 22]. At the same time, ALJ DiBiccaro
recognized and explained the limitations of the application of the rating to the
31
evaluation he was tasked with. In particular, ALJ DiBiccaro explained that it has
limited value in determining what work-related mental and physical activities
Claimant can do given the lack of specificity in the rating’s evaluation and
conclusion. [Dkt. 21 at 21]. This assessment is logical. ALJ DiBiccaro considered
the rating and its indications of Mr. Kelly’s limited capacity but also accounted for
its limited scope and context, properly supplementing his analysis with the other
record evidence.
Further, as the decision explains, the rating’s conclusion was based on
responses provided by Mr. Kelly during the PTSD examination being conducted for
the purpose of evaluating his entitlement to veterans’ benefits. Mr. Kelly’s selfreports as to the severity of his symptoms are less reliable than the treatment notes
by APRN Coral assessing Mr. Kelly’s condition over a long period of time. See
Johnson v. Comm’r of Soc. Sec., 669 F. App’x 580, 581 (2d Cir. 2016) (upholding
ALJ’s decision not to give controlling weight to medical opinion that primarily
relied on claimant’s self-reported symptoms); Polynice v. Colvin, 576 F. App’x 28,
31 (2d Cir. 2014) (upholding ALJ’s decision not to give controlling weight to medical
opinion where it was no more than a doctor’s recording the claimant’s own reports
of pain); Lewis v. Colvin, 548 F. App’x 675, 678 (2d Cir. 2013) (finding discounting
doctor’s opinion not improper where it was inconsistent with his own prior
opinions and was based on the claimant’s subjective complaints) .
Notably, on April 6, 2016 Mr. Kelly reported he had a 70% disability rating
from the VA and was trying to get a permanent and total disability rating despite
the fact he was attending school to become an exterminator and talking about other
32
schooling and jobs, prompting APNP Coral to note that it was “unclear what his
work capacity actually is.” [R. 1230-31]. She also noted that it was “unclear what
he wants from VA other than documentation to help [him with] whatever court
cases he is facing.” Id.
In light of the above, it was reasonable for ALJ DiBiccaro to conclude the
standards for assessing SSI and VA disability differ and it was appropriate for him
to limit somewhat the weight given to the VA rating in light of the longitudinal
evidence. The Court concludes that ALJ DiBiccaro’s treatment of the VA rating
was both legally proper and supported by substantial evidence in the record.
IV.
Vocational Findings
Mr. Kelly argues that the ALJ’s vocational findings are flawed due to his
reliance on testimony by a vocational expert witness, Mr. Calandra, who testified
by phone toward the end of the hearing. [Dkt. 21-1 at 31]. Claimant argues that it
was inappropriate for the vocational expert to testify without having heard the
evidence and based only on the ALJ’s hypotheticals. Id. He further argues that the
vocational expert’s methodology, his association of the DOT number to the broader
SOC code, was flawed and that his testimony as to the scale of the existence of
suitable jobs is unreliable. Id. at 37.
An ALJ may determine whether there are significant numbers of jobs in the
national economy which the claimant can perform “by applying the Medical
Vocational Guidelines or by adducing testimony of a vocational expert.” McIntyre,
758 F.3d at 151. “An ALJ may rely on a vocational expert’s testimony regarding a
hypothetical as long as there is substantial record evidence to support the
33
assumptions upon which the vocational expert based his opinion . . . and
accurately reflect the limitations and capabilities of the claimant involved.” Id.
(internal citations, quotations, and brackets omitted) (quoting Dumas v. Schweiker,
712 F.2d 1545, 1553-54 (2d Cir. 1983); Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d
Cir. 1981)).
The Court rejects Mr. Kelly’s first argument, taking issue with the vocational
expert’s lack of familiarity with the rest of the hearing. “The vocational expert is
just that, a vocational expert. The ALJ is responsible for determining based on all
evidence, the claimant’s physical capabilities.” Dumas, 712 F.2d at 1554 n.4. The
vocational expert plays no role in evaluating the medical evidence in the record.
Rather, the ALJ may present hypotheticals which accurately represent his findings
regarding the claimants RFC and allow the vocational expert to opine on the jobs
which match that RFC available in the national economy. The vocational expert
need not have been present for the entirety of the hearing in order to perform this
function.
The case cited by Mr. Kelly in a footnote does not require otherwise. See
[Dkt. 21 at 31 n. 44 (citing Dimmett v. Colvin, 816 F.3d 486, 488 (7th Cir. 2016))].
First, it is a decision by the Seventh Circuit, which is not binding on this Court.
Even if it were, it does not challenge the vocational expert’s opinion due to his lack
of familiarity with the other testimony at the hearing but takes issue with the fact
that the vocational expert “ignored the limitations that the administrative law judge
placed on the type of job that the Claimant is able to perform.” Dimmett, 816 F.3d
at 490.
As such, the Seventh Circuit case does not support reversing and
34
remanding the ALJ’s decision based on the fact that the vocational expert
telephoned into the hearing after the other testimony.
Mr. Kelly next takes issue with the vocational expert’s methodology,
specifically challenging whether the job of mail clerk exists in the quantity the
expert represented. [Dkt. 21 at 31-38]. In response to a hypothetical from ALJ
DiBiccaro, the vocational expert identified three occupations an individual with Mr.
Kelly’s limitations could perform—mail clerk, assembler, and solderer. 4 [R. 24-25,
119-127]. The vocational expert based this determination on his own expertise and
the position descriptions in the Dictionary of Occupational Titles (“DOT”), a United
States Department of Labor publication. Id. The DOT associates a job type with a
specific code—for instance, “209.687-026 Mail Clerk”—and establishes that
position’s duties, including the minimum skill level and physical exertion capacity
it requires. “Because of the detailed information appended to each DOT code, the
codes are useful for determining the type of work a disability applicant can
perform.” Brault, 683 F.3d at 446.
“The DOT, however, just defines jobs. It does not report how many jobs are
available in the economy.” Id. Thus, the vocational expert turned to the Standard
Occupational Classification (“SOC”) system, a federal statistical standard used by
federal agencies to classify workers into occupational categories. See Standard
Occupational
Classification,
BUREAU
OF
LABOR
STATISTICS,
4
ALJ DiBiccaro’s decision accepted the vocational expert’s opinion only as to the
mail clerk job, rejecting both assembler and solderer due to the loud background
noise. As such, the mail clerk opinion and job numbers are the sole evidentiary
basis for the ALJ’s decision at Step Five. See [R. 25].
35
https://www.bls.gov/soc/. The SOC system groups together detailed occupations
with similar job duties, and in some cases skills, education, and/or training. Id.
The Occupational Employment Statistics (“OES”) program then produces
employment and wage estimates for the SOCs nationally, by state, and for
metropolitan and nonmetropolitan areas.
See Occupational Employment
Statistics, BUREAU OF LABOR STATISTICS, https://www.bls.gov/oes/#data. The
vocational expert relied on the employment data for the SOC corresponding to the
DOT mail clerk position, concluding the existence of approximately 100,000 mail
clerk jobs nationally. See [R. 24-25, 119-127].
Mr. Kelly first suggests that the DOT position number associated with the
identified job of mail clerk (209.687-026) “cross-walks,” or lines up with, SOC 439051, “Mail Clerks and Mail Machine Operators, Except Postal Service,” rather than
SOC 43-5053, “Postal Service Mail Sorters, Processors, and Processing Machine
Operators,” which the vocational expert initially identified. [Dkt. 21 at 33]. Mr. Kelly
does not provide a source for this assertion. However, O*Net OnLine provides a
crosswalk search function by which the Court was able to enter the mail clerk DOT
and return the associated SOC(s).
See Crosswalk Search, O*NET ONLINE,
https://www.onetonline.org/crosswalk/.
The search provided one matching
classification,
Kelly
43-9051,
as
Mr.
asserts.
https://www.onetonline.org/crosswalk/DOT?s=209.687-026&g=Go.
See
id.
at
This shows
that the vocational expert cited the wrong SOC.
Mr. Kelly then argues that the correct SOC, 43-9051, encompasses fourteen
DOT-specified occupations, eight of which do not satisfy the hypothetical posed
36
by the ALJ. [Dkt. 21 at 34 n.47]. Thus, Mr. Kelly suggests that, while SOC 43-9051
reports approximately 100,000 jobs, many of those can be attributed to the eight
occupations which do not meet the hypothetical criteria such that only a small
percentage are available to him. [Dkt. 21 at 34-35].
The Commissioner argues that the Second Circuit has addressed and
rejected a similar argument regarding vocational expert methodology in Brault v.
Social Security Administration, 683 F.3d 443 (2d Cir. 2012). [Dkt. 22 at 16-17]. In
Brault, the claimant argued that the vocational expert’s testimony was unreliable
because “the numerical data provided by the SOC code do not enable a vocational
expert to accurately determine the number of jobs within that SOC code for a
particular DOT title.”
Brault, 683 F.3d at 446-47 (quoting the claimant’s
memorandum) (internal brackets omitted). The Second Circuit acknowledged that
“[t]his becomes a problem if DOT titles with different exertion or skill levels map to
the same SOC code,” as Kelly suggests they do here. Id. at 447 n.4. On crossexamination, the vocational expert in Brault denied having reported the numbers
for the entire SOC, claiming to have “reduced” the numbers from “the entire SOC
code” to only count “jobs . . . that I know exist.” Id. at 447. The Second Circuit
affirmed the ALJ’s decision, finding his reliance on the expert’s testimony was
supported by substantial evidence. Id. at 448. The Second Circuit explained that
the “substantial evidence” standard provides for the review of “the entirety of the
VE’s testimony, including the expert’s methods, to make sure it rose to the level of
‘substantial’ evidence.” Id. at 450. Without deciding the extent to which an ALJ
must test the reliability of an expert’s testimony, the Second Circuit specified that
37
it was not holding that an ALJ never need question reliability but noted that
“evidence cannot be substantial if it is ‘conjured out of whole cloth.’” Id. (quoting
Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002)).
Mr. Kelly argues that the vocational expert’s testimony here “was conjured
out of whole cloth and is entirely unworthy of any belief whatsoever.” [Dkt. 21 at
38]. The Court recognizes the significant shortcomings in the vocational expert’s
testimony in this case and concludes that remand is required given the resulting
absence of substantial evidence supporting the ALJ’s decision at Step Five of his
analysis.
As the Brault Court explained, data aggregation, including the many-to-one
mapping used by the vocational expert to associate DOT titles to SOC codes,
“necessarily creates information loss.” Brault, 683 F.3d at 447 n.4. Despite this,
the Brault Court, and others, have upheld decisions relying on vocational expert
testimony when the expert accounts for that information loss in some reliable
manner. Id.; see also Kennedy v. Astrue, 343 F. App’x 719, 722 (2d Cir. 2009)
(upholding decision where “the vocational expert acknowledged that the data on
which she relied in determining the existence of ‘charge-account clerk’ positions .
. . also encompassed approximately 59 other DOT titles” but “arrived at her
estimated figures for charge-account clerk positions by discounting from the total
numbers for all 60 DOT titles”); Fox v. Comm’r of Soc. Sec., No. 6:02-cv-1160, 2009
WL 367628, at *3 (N.D.N.Y. Feb. 13, 2009) (upholding reliance on expert testimony
that “surveillance system monitor” jobs was a small percentage lower than the
132,980 “Protective Service Occupation” jobs in the national economy); Jones-
38
Reid v. Astrue, 934 F. Supp. 2d 381, 407 (D. Conn. 2012) (upholding reliance on
vocational expert testimony estimating, based on her personal knowledge and
expertise, the occupational projections for identified DOTs with the BLS providing
a starting point). In contrast, courts have remanded the Commissioner’s decision
in cases where the vocational expert relied on incidence data for broad
occupational groups that included positions other than those the claimant could
perform without offering an opinion as to how many positions existed for the jobs
the claimant could perform.
See Rosa v. Colvin, No. 3:12-cv-0170, 2013 WL
1292145, at *9-10 (N.D.N.Y. Mar. 27, 2013); Johnson v. Barnhart, 378 F. Supp. 2d
274, 283 (W.D.N.Y. 2005).
The vocational expert’s testimony here falls into the latter category. The
vocational expert testified that he believes that DOT 209.687-026, the mail clerk title,
is reasonably included in SOC 43-5053, which lists approximately 96,000
corresponding jobs in the national economy, as well as SOC 43-9051, which lists
approximately 100,000 corresponding jobs in the national economy, but did not
address the fact that only one of those is an established “crosswalk.” See [R. 126].
Even if he had cited the correct classification, he did not account for the fact that
SOC 43-9051 covers DOT positions in addition to mail clerk which Kelly may not
be able to perform given his RFC. Indeed, the vocational expert testified that he
“would have no idea” how many other occupations are listed in each of the SOCs
at issue. [R. 126]. He made no effort to identify any additional DOTs and determine
whether they would qualify under the hypotheticals posed or discount the total
number of jobs based on the inclusion of the additional titles. He relied only on his
39
assessment that “[t]he essential duties are described under both of those SOC
code numbers” and are “very consistent with the DOT code number” for mail clerk,
such that “either one you want to reference” there are approximately 100,000 jobs
nationally. [R. 126-27].
The ALJ based his conclusion that significant numbers of potential jobs
exist in the national economy on the vocational expert’s testimony. [R. 25]. But as
a result of multiple flaws in the vocational expert’s analysis, it is unclear from that
testimony how many jobs would actually be available to Mr. Kelly. As a result, the
ALJ’s decision at Step Five lacks the support of substantial evidence and remand
is required for further consideration of the existence of positions in the national
market which Mr. Kelly is capable of performing.
Conclusion
For the aforementioned reasons, the Court DENIES the Commissioner’s
Motion to Affirm the Decision of the Commissioner, [Dkt. 22], and GRANTS
Claimant’s Motion to Remand, [Dkt. 21]. The Clerk is directed to close this case.
IT IS SO ORDERED
__________/s/____________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 25, 2019
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