Rivera v. Berryhill
Filing
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ORDER For the reasons stated in the attached Memorandum of Decision, 19 Plaintiff's Motion to Reverse is hereby DENIED and 20 Defendant's Motion to Affirm is hereby GRANTED. The Clerk shall enter judgment in favor of the Commissioner and close the case. Signed by Judge Kari A. Dooley on 12/14/2018. (Beyerlein, Alexis)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CATALINA RIVERA,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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CIVIL NO. 3:18-CV-0073 (KAD)
DECEMBER 14, 2018
MEMORANDUM OF DECISION RE:
PLAINTIFF’S MOTION TO REVERSE [ECF NO. 19] AND
DEFENDANT’S MOTION TO AFFIRM [ECF NO. 20]
Kari A. Dooley, United States District Judge
The Plaintiff, Catalina Rivera, brings this administrative appeal pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3). She appeals the decision of defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration, (the “Commissioner”) denying her
application for supplemental security income benefits pursuant to Title XVI of the Social Security
Act (the “Act”). Rivera has moved to reverse the Commissioner’s decision on the grounds that it
is not supported by substantial evidence in the record. The Commissioner has also moved for an
order affirming its decision. For the reasons set forth below, Rivera’s motion is DENIED, and the
Defendant’s motion is GRANTED.
Standard of Review
It is well-settled that a district court will reverse the decision of the Commissioner only
when it is based upon legal error or when it is not supported by substantial evidence in the record.
See Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997); see also 42 U.S.C. § 405(g) (“The
findings of the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive. . . .”). “Substantial evidence is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted). The court does
not inquire as to whether the record might also support the plaintiff’s claims but only whether there
is substantial evidence to support the Commissioner’s decision. Bonet ex rel. T.B. v. Colvin, 523
Fed. Appx. 58, 59 (2d Cir. 2013). Substantial evidence can support the Commissioner’s findings
even if there is the potential for drawing more than one conclusion from the record. See Vance v.
Berryhill, 860 F.3d 1114, 1120 (8th Cir. 2017). The court can reject the Commissioner’s findings
of facts “only if a reasonable factfinder would have to conclude otherwise.” Brault v. Social Sec.
Admin. 683 F.3d 443, 448 (2d Cir. 2012). Stated simply, “if there is substantial evidence to
support the [Commissioner’s] determination, it must be upheld.” Selian v. Astrue, 708 F.3d 409,
417 (2d Cir. 2013).
Factual and Procedural History
On September 9, 2014, Rivera filed an application for supplemental security income
benefits pursuant to Title XVI of the Act and an application for disability insurance benefits
pursuant to Title II of the Act.1 Although she initially alleged a disability onset date of August 27,
2014, Rivera subsequently amended her date of onset to December 21, 2014, the date on which
she fell and injured her back.
Rivera’s applications were denied at both the initial and
reconsideration levels. Thereafter, a hearing was held before an Administrative Law Judge (the
“ALJ”) on September 28, 2016. On November 29, 2016, the ALJ issued a written decision denying
Rivera’s applications.
Rivera’s appeal challenges only the “decision of the Commissioner of Social Security
denying [her] application for Title XVI disability benefits for lack of disability.”
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In his decision, the ALJ followed the sequential evaluation process for assessing disability
claims.2 At Step 1, the ALJ determined that Rivera had not been engaged in substantial gainful
activity since the claimed onset date. At Step 2, the ALJ determined that Rivera had several severe
impairments. He concluded that her diabetes mellitus, however, was not “severe” within the
meaning of the Act. The ALJ acknowledged Rivera’s complaints of tingling in the lower
extremities and diagnosis of diabetic neuropathy but concluded that “the evidence of record does
not support a finding that the [Plaintiff] has significant functional limitations related to this
condition.” At Step 3, the ALJ concluded that Rivera does not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed impairments in
Appendix 1. At Step 4, the ALJ concluded that Rivera has a residual functional capacity (“RFC”)
to perform medium work, subject to certain specified limitations. The ALJ further found that
Rivera did not have the RFC to perform her past relevant work. Finally, at Step 5, ALJ found that
Rivera “is capable of making a successful adjustment to other work that exists in significant
numbers in the national economy.” Accordingly, the ALJ found that Rivera was not disabled
within the meaning of the Act. This appeal followed.
2
Pursuant to regulations promulgated by the Commissioner, a five-step sequential
evaluation process is used to determine whether a claimant’s condition meets the Act’s definition
of disability. See 20 C.F.R. § 404.1520. In brief, the five steps are as follows: (1) the
Commissioner determines whether the claimant is currently engaged in substantial gainful activity;
(2) if not, the Commissioner determines whether the claimant has a “severe impairment” which
limits her mental or physical ability to do basic work activities; (3) if such a “severe impairment”
is established, the Commissioner next determines whether the medical evidence establishes that
the claimant’s impairment “meets or equals” an impairment listed in Appendix 1 of the regulations;
(4) if the claimant does not establish the “meets or equals” requirement, the Commissioner must
then determine the claimant’s residual functional capacity to perform her past work; (5) if the
claimant is unable to perform her past work, the Commissioner must next determine 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 with respect to Step 1 through Step
4, while the Commissioner bears the burden of proof as to Step 5. Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008); McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
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On appeal, Rivera challenges the Commissioner’s denial of supplemental security income
benefits, arguing that the ALJ erred by (1) concluding that she had no significant functional
limitations related to her diabetes mellitus and (2) finding that her daily activities were “at a much
higher level than [she] asserted at the hearing.” The Commissioner, in response, avers that the
ALJ’s conclusions and findings are supported by substantial evidence in the record. The claims
will be addressed seriatum.
Discussion
The ALJ’s Conclusions Concerning the Severity of Rivera’s Diabetes Mellitus
Rivera first contends that the ALJ erroneously concluded the she had no significant
functional limitations as a result of her diabetes mellitus. Invoking the so-called “treating
physician’s rule,” she argues that the ALJ erred by affording “very little weight” to the opinion of
Dr. Ovanes Borgonos concerning the severity of her diabetes mellitus.
The following additional facts are relevant to this claim. In support of her applications,
Rivera submitted two brief letters from Dr. Borgonos. In the first letter, dated November 18, 2014,
Dr. Borgonos listed Rivera’s medical and psychiatric conditions (including “uncontrolled
diabetes”) and stated that she was unable to work because of her various conditions. He further
opined that “[s]he is disabled mainly due to her mental health issues.” In the second letter, dated
October 28, 2017, Dr. Borgonos again listed Rivera’s conditions (including “diabetes on insulin”)
and again asserted in a conclusory fashion that she was “disabled.” Rivera also submitted Dr.
Borgonos’ progress notes and progress notes from her endocrinologist in support of her
applications. In those notes, both physicians characterized Rivera’s diabetes mellitus as being
“uncontrolled,” although Dr. Borgonos did not consistently use the adjective “uncontrolled” when
referring to her diabetes mellitus.
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As previously indicated, after considering the available record, the ALJ found that her
diabetes mellitus was not severe. The ALJ further considered and afforded “very little weight to”
the opinion of Dr. Borgonos that Rivera was disabled and unable to work. The governing
regulations and substantial evidence in the record supports the ALJ’s decision to afford “very little
weight” to Dr. Borgonos’ opinion.
Under the treating physician’s rule, “the opinion of a claimant’s treating physician as to
the nature and severity of the impairment is given ‘controlling weight’ so long as it ‘is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.’” Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2)). Dr. Borgonos did not offer a
fulsome medical opinion, however, concerning the severity of Rivera’s various medical and
psychiatric conditions. He listed her medical and psychiatric conditions and then stated in a
conclusory fashion that she was disabled and unable to work. It is well settled that a treating
physician’s statement that a claimant is “disabled” or “unable to work” is not entitled to controlling
weight because it represents an opinion on an issue reserved to the Commissioner. 20 C.F.R. §
404.1527(d)(1); Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015); Adamski v. Barnhart, 404 F.
Supp. 2d 488, 492 (W.D.N.Y. 2005). Accordingly, the ALJ properly rejected Dr. Borgonos’
opinion that Rivera was disabled and unable to work.
This leaves the question of whether Dr. Borgonos’ characterization of her diabetes mellitus
as “uncontrolled” was given appropriate weight.
The fundamental problem with Rivera’s
argument in this regard is that it assumes that having “uncontrolled diabetes” necessarily means
that one has significant functional limitations due to diabetes. Rivera did not present any evidence
to support this assumption. Although Dr. Borgonos and Rivera’s endocrinologist characterized
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her diabetes mellitus as “uncontrolled,” neither physician offered an opinion that Rivera’s diabetes
mellitus significantly limited her functional abilities or that a person with “uncontrolled” diabetes
necessarily has significant functional limitations. Indeed, Dr. Borgonos opined in his first letter
that Rivera’s depression—not her diabetes mellitus—was the main cause of her disability.
Rivera’s progress notes also do not reflect any complaints from her about her diabetes mellitus
impairing her functional abilities. The month before the hearing, Rivera did report worsening
“tingling” and “burning sensation” in her feet to Dr. Borgonos, but she reported at the hearing that
she had been prescribed medication that had reduced the pain in her leg and tingling in her foot,
“all of it.” The progress notes also reflect that Rivera has diabetic shoes, but, again, there is no
indication in Rivera’s progress notes (or her testimony) that her diabetes mellitus was hindering
her ability to stand or walk.
Finally, the ALJ expressly considered all Rivera’s diabetes-related symptoms during his
analysis at Step 2, and he further considered the impact of Rivera’s diabetes mellitus on her RFC
at Step 4. See Rivera v. Colvin, 592 Fed. Appx. 32, 33–34 (2d Cir. 2015) (holding that, even if
ALJ erroneously found that claimant’s psychiatric conditions were not severe impairments at Step
2, such error was harmless because the ALJ considered both severe and non-severe impairments
as he worked through the later steps).
In sum, Rivera failed to meet her burden of proving that she had significant functional
limitations due to her diabetes mellitus. See Burgess, 537 F.3d at 128 (“The claimant has the
general burden of proving that he or she has a disability within the meaning of the Act, and bears
the burden of proving his or her case at steps one through four. . . .” [citation omitted]).
Accordingly, Rivera’s first challenge to the ALJ’s decision fails.
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The ALJ’s Conclusion Concerning Rivera’s Residual Functional Capacity
Next Rivera challenges the ALJ’s conclusion that she had the RFC to perform medium
work, subject to certain specified limitations. In particular, she challenges the ALJ’s statement
that she was functioning at a “much higher level”3 than she asserted at the hearing based on the
disparities between her trial testimony and her Activities of Daily Living questionnaire.4 A review
of the record in its entirety reveals that there is substantial evidence in the record to support the
ALJ’s RFC determination.
In determining Rivera’s RFC, the ALJ chose not to credit Rivera’s subjective complaints
because they were unsupported or contradicted by other evidence in the record. Generally,
credibility determinations such as this are entitled to deference on appeal. Selian v. Astrue, 708
F.3d 409, 420 (2d Cir. 2013). This is particularly true where, as here, the claimant’s subjective
complaints are inconsistent with the other evidence in the record. Genier v. Astrue, 606 F.3d 46,
49 (2d Cir. 2010) (“When determining a claimant’s RFC, the ALJ is required to take the claimant’s
reports of pain and other limitations into account, but is not required to accept the claimant’s
subjective complaints without question; he may exercise discretion in weighing the credibility of
the claimant’s testimony in light of the other evidence in the record.” [citations omitted]).
In this case, there are inconsistencies that cannot be ignored. For example, Rivera
submitted an Activities of Daily Living questionnaire. In that questionnaire, she reported that she
prepares meals for herself on a daily basis, typically “frozen dinners/microwaved meals and
The ALJ stated twice that Rivera’s functionality was “higher” than she reported at the
hearing and stated only once that her functionality was “much higher” than she reported at the
hearing.
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Rivera also opines that, based on the ALJ’s statements, “it seems as if he is referring to
another person’s [questionnaire].” Nothing in the record suggests, however, that the ALJ reviewed
the incorrect questionnaire. In his decision, the ALJ correctly described the contents of Rivera’s
questionnaire, including the name of the assisting nurse, the date of completion, and the limitations
reported by Rivera therein.
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sandwiches.” She also reported that she shops for groceries herself. With respect to cleaning,
Rivera reported that she was able to do her “[l]aundry and light cleaning,” although she needs
“help or encouragement” with those activities. At the hearing, however, Rivera testified that her
son often helps her with things around the house, and he brings her meals to her because she does
not cook. She also testified that her daughter-in-law comes over every weekend to clean. She said
that she will “take the broom, the mop” to help, but “I mostly just sleep.”
In addition, Rivera claimed that her depression made it difficult for her to concentrate for
more than a few minutes and inhibited her ability to read, watch television, and carry on long
conversations. Nevertheless, Rivera did not list depression as a mental impairment on her
Disability Report. Nor did she appear to have any difficulty concentrating during her interview
with the Social Security Administration or at the hearing according to the ALJ. Her mental status
exams further reveal that, although she reported being depressed and anxious, she did not have
significant functional limitations as a result of those conditions.
Finally, Rivera claimed to be disabled due to a back injury. The ALJ agreed that Rivera
had back conditions that qualified as severe, but, as the ALJ correctly observed, Rivera’s progress
notes also revealed that “her fracture is stable,” she “walks with a steady gait with no signs of
weakness or ataxia,” and she takes only Tylenol for pain. Accordingly, although she had some
functional limitations due to her back conditions, the ALJ understandably concluded that she still
had some residual functional capacity.
To be certain, the record might support Rivera’s claim that she is not functioning at a “much
higher” level than that to which she testified at the hearing. This does not preclude a finding,
however, that the ALJ’s decision concerning Rivera’s RFC was supported by substantial
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evidence.5 Vance v. Berryhill, 860 F.3d 1114, 1120 (8th Cir. 2017) (acknowledging that “[i]t may
well be that reasonable minds would disagree as to whether T.B. is disabled,” but affirming the
Commissioner’s denial of benefits where there was substantial evidence in the record to support
that decision). “[R]eviewing courts do not demand perfect decisions.” Morgan v. Berryhill, No.
1:15-cv-00449 (MAT), 2017 WL 6031918, at *5 (W.D.N.Y. Dec. 5, 2017) (quoting Abdulsalam
v. Comm’r of Soc. Sec., No. 5:12–cv–1631 (MAD), 2014 WL 420465, at *8 (N.D.N.Y. Feb. 4,
2014)); see also Whitaker v. Berryhill, No. 3:17-cv-1337 (SRU), 2018 WL 4583508, at *13 (D.
Conn. Sept. 25, 2018) (“Even in the face of an oversight, the ALJ’s decision may be upheld if the
error was ‘harmless,’ that is, if other ‘substantial evidence in the record’ supports the ALJ’s
conclusions.”).
After reviewing the Parties’ submissions, the decision of the ALJ, the transcript of
proceedings, and the record of the agency proceedings, it is manifest that there is substantial
evidence in the record to support the ALJ’s determination that Rivera is not disabled within the
meaning of the Act.
Conclusion
For all of the foregoing reasons, Rivera’s motion [ECF No. 19] is DENIED, and the
Defendant’s motion [ECF No. 20] is GRANTED. The Clerk shall enter judgment in favor of the
Commissioner and close the case.
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Contrary to the Rivera’s suggestion, the ALJ made clear that his RFC determination was
based on “the entire evidence of record,” not simply the Activities of Daily Life questionnaire.
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SO ORDERED
Dated at Bridgeport, Connecticut this 14th day of December 2018.
/s/
Kari A. Dooley
United States District Judge
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