Burnette v. Commissioner of Social Security

Filing 19

ORDER: For the reasons set forth in the attached Memorandum and Order, 14 Defendant's motion for judgment on the pleadings is DENIED, 16 Plaintiff's motion for judgment on the pleadings (inadvertently filed as an opposition to Defendant 's motion for judgment on the pleadings) is GRANTED in part and DENIED in part, and this action is REMANDED for further proceedings consistent with this Memorandum and Order. Counsel for Defendant is respectfully directed to serve a copy of this Memorandum and Order on pro se Plaintiff and to note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 1/28/2020. (Ammari, Kamil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

----------------------------------X
MAURICE BURNETTE,
Plaintiff,

MEMORANDUM AND ORDER

v.

17-cv-5549 (KAM)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
----------------------------------X

MATSUMOTO, United States District Judge:
Pro se Plaintiff Maurice Quentin Burnette (“Burnette”
or “Plaintiff”) appeals the decision of the Commissioner of
Social Security (“Commissioner” or “Defendant”), which found
Plaintiff not disabled and thus not entitled to disability
insurance benefits under Title II or Supplemental Security
Income under Title XVI of the Social Security Act (“the Act”),
after finding that Plaintiff could perform work that existed in
the national economy.
the pleadings. 1

Both parties have moved for judgment on

For the reasons set forth below, Defendant’s

motion is DENIED, Plaintiff’s motion is GRANTED in part and
DENIED in part, and this action is REMANDED for further
proceedings consistent with this Memorandum and Order.

The Court construes Plaintiff’s opposition to Defendant’s motion as
Plaintiff’s cross-motion for judgment on the pleadings.
1

1

Background
The parties to this action have entered a joint
Stipulation of Relevant Facts detailing Burnette’s medical
history and Burnette’s testimony at his administrative hearing.
(ECF No. 15-1, Joint Stipulation of Relevant Facts.)

To the

extent this action involves confidential medical information,
the Court declines to detail it in this Memorandum and Order and
hereby incorporates the stipulated facts by reference. 2
Burnette applied for disability insurance benefits on
June 3, 2015 and for supplemental security income benefits on
August 26, 2015.

(ECF No. 17, Administrative Transcript

(“Tr.”), at 260-264, 267-268.)

Burnette alleged disability

beginning December 1, 2013 due to [redacted], depression, joint
problems, herniated discs, back problems, right leg sciatica,
and right leg swelling.

(Id. at 294.)

On December 4, 2015, the Social Security
Administration (“SSA”) denied Burnette’s application for
disability insurance benefits.

(Id. at 178-181, 182-186.)

Burnette filed a request for reconsideration, which the SSA
denied.

(Id. at 188-193.)

Burnette then requested a hearing

before an Administrative Law Judge (“ALJ”).

(Id. at 198-203.)

The publicly filed version of this Memorandum and Order redacts references
to confidential medical information. An unredacted Memorandum and Order will
be filed under seal.
2

2

On November 7, 2016, Burnette appeared with counsel
and testified before ALJ F. Jefferson Hughes.

(Id. at 36-71.)

Following the hearing, ALJ Hughes issued a decision affirming
the SSA’s determination that Burnette did not qualify as
disabled within the meaning of the Act and, as a result, was not
entitled to benefits.

(Id. at 13-30.)

On May 24, 2017, Plaintiff appealed ALJ Hughes’
decision to the Appeals Council.

(Id. at 254-259.)

The Appeals

Council denied Burnette’s request for review, making ALJ Hughes’
decision the final decision of the Commissioner.
This action followed.

(Id. at 1-6.)

(See generally ECF No. 1, Compl.)
Standard of Review

Unsuccessful claimants for disability benefits may
bring an action in federal court seeking judicial review of the
Commissioner’s denial of their benefits.
1383(c)(3).

42 U.S.C. §§ 405(g),

The reviewing court does not have the authority to

conduct a de novo review, and may not substitute its own
judgment for that of the ALJ, even when it might have
justifiably reached a different result.
F.3d 118, 122 (2d Cir. 2012).

Cage v. Comm’r, 692

Rather, “‘[a] district court may

set aside the Commissioner’s determination that a claimant is
not disabled only if the factual findings are not supported by
‘substantial evidence’ or if the decision is based on legal

3

error.’”

Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)

(quoting Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)).
“Substantial evidence means ‘more than a mere
scintilla.

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’”

Id.

(quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)).
If there is substantial evidence in the record to support the
Commissioner’s factual findings, those findings must be upheld.
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 . . . .”).

Inquiry into legal error

requires the court to ask whether “‘the claimant has had a full
hearing under the [Commissioner’s] regulations and in accordance
with the beneficent purposes of the [Social Security] Act.’”
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz
v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)).
Discussion
I.

The Commissioner’s Five-Step Analysis of Disability Claims
A claimant must be “disabled” within the meaning of

the Act to receive disability benefits.
423(a), (d).

See 42 U.S.C. §§

A claimant qualifies as disabled when she is

unable to “engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or
4

can be expected to last for a continuous period of not less than
12 months.”

Id. § 423(d)(1)(A); Shaw, 221 F.3d at 131–32.

The

impairment must be of “such severity” that the claimant is
unable to do her previous work or engage in any other kind of
substantial gainful work.

42 U.S.C. § 423(d)(2)(A).

The regulations promulgated by the Commissioner
prescribe a five-step sequential evaluation process for
determining whether a claimant meets the Act’s definition of
disabled.

See 20 C.F.R. § 404.1520.

The Commissioner’s process

is essentially as follows:
[I]f the Commissioner determines (1) that the claimant is
not working, (2) that [s]he has a ‘severe impairment,’ (3)
that the impairment is not one [listed in Appendix 1 of the
regulations] that conclusively requires a determination of
disability, and (4) that the claimant is not capable of
continuing in [her] prior type of work, the Commissioner
must find [her] disabled if (5) there is not another type
of work the claimant can do.
Burgess, 537 F.3d at 120 (quoting Green-Younger v. Barnhart, 335
F.3d 99, 106 (2d Cir. 2003)); accord 20 C.F.R. § 404.1520(a)(4).
If the answer at any of the previously mentioned steps is “no,”
the analysis stops and the ALJ must find that the claimant does
not qualify as disabled under the Act.
“The claimant has the general burden of proving . . .
his or her case at steps one through four of the sequential
five-step framework established in the SSA regulations.”
Burgess, 537 F.3d at 128 (internal quotation marks and citations

5

omitted).

“However, [b]ecause a hearing on disability benefits

is a nonadversarial proceeding, the ALJ generally has an
affirmative obligation to develop the administrative record.”
Id. (internal quotation marks omitted).

“The burden falls upon

the Commissioner at the fifth step of the disability evaluation
process to prove that the claimant, if unable to perform her
past relevant work [and considering her residual functional
capacity, age, education, and work experience], is able to
engage in gainful employment within the national economy.”
Sobolewski v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).
“The Commissioner must consider the following in
determining a claimant’s entitlement to benefits: ‘(1) the
objective medical facts [and clinical findings]; (2) diagnoses
or medical opinions based on such facts; (3) subjective evidence
of pain or disability . . . ; and (4) the claimant’s educational
background, age, and work experience.’”

Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999) (alterations in original)).

If

the Commissioner finds a combination of impairments, the
Commissioner must also consider whether “the combined effect of
all of [a claimant’s] impairment[s]” establish the claimant’s
eligibility for Social Security benefits.
404.1523(c); see also id. § 416.945(a)(2).

6

20 C.F.R. §

II.

ALJ Hughes’ Application of the Five-Step Analysis
Using the five-step sequential process to determine

whether a claimant is disabled as mandated by the SSA
regulations, ALJ Hughes made the following determinations:
At step one, ALJ Hughes found that Burnette “has not
engaged in substantial gainful activity since December 1, 2013,
the alleged onset date” of his disability.

(Tr. 15.)

At step two, ALJ Hughes found that Burnette suffered
from the severe impairments of [redacted], 3 depression, and
asthma.

(Id.)

ALJ Hughes also found that Burnette suffered

from several non-severe impairments, including “herpes, history
of hepatitis C, degenerative joint disease of cervical spine,
degenerative disease of the lumbar spine, mild to very mild
carpal tunnel syndrome, posttraumatic stress disorder, bipolar
disorder, hepatitis A immune, hepatitis B immune, reported
history of insomnia, GERD, reported history of colitis, mild
rotary levoscoliosis at thoracolumbar spine, allergic rhinitis,

The information regarding claimant’s [redacted] was accompanied by the
following warning: “This information has been disclosed to you from
confidential records which are protected by state law. State law prohibits
you from making any further disclosure of this information without the
specific written consent of the person to whom it pertains, or as otherwise
permitted by law. Any unauthorized further disclosure in violation of state
law may result in a fine or jail sentence or both. A general authorization
for the release of medical or other information is NOT sufficient for further
disclosure.”
3

7

degenerative changes to the bilateral knees, anxiety, and near
obesity.”

(Id. at 15-19.)
At step three, ALJ Hughes determined that from

December 1, 2013 through the date of the hearing, Burnette did
“not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed
impairments 20 CFR Part 404, Subpart P, Appendix 1,” although
ALJ Hughes considered Listing 12.04 (depressive, bipolar, and
related disorders).

(Id. at 19-21.)

At step four, ALJ Hughes determined that Burnette
could not perform his past relevant work as a medical biller or
cook, as the vocational expert at the hearing testified that
such work exceeded Burnette’s residual functional capacity.
(Id. at 28.)

ALJ Hughes explained, however, that Burnette was

capable of performing less than the full range of light work,
“except no climbing ladders, ropes, scaffolds, occasional
crouching, climbing stairs, balancing, stooping, kneeling,
crawling, occasional reaching overhead bilaterally, frequent
handling and fingering bilaterally, avoid concentrated exposure
to pulmonary irritants and hazards, simple . . . , low stress .
. . jobs only, occasional interaction with general public and
coworkers.”

(Id. at 21.)

At step five, ALJ Hughes found Burnette capable of
performing work that was available in the national economy,
8

namely, as a night cleaner, produce sorter, and inspector tester
sorter.

(Id. at 29.)

ALJ Hughes thus concluded that Burnette

did not qualify as disabled within the meaning of the Act and
was not entitled to benefits.
III.

(Id. at 30.)

ALJ Hughes’ Error in Applying the Five-Step Analysis
Burnette alleges that ALJ Hughes erred by failing to

consider Listing [redacted] at step three. 4

The Court agrees.

An ALJ considering a claimant’s entitlement to
benefits must determine whether that claimant’s impairment(s)
meets or equals an impairment catalogued in “The Listing of
Impairments” (“the Listings”).
P, App’x 1.

See 20 C.F.R., Pt. 404, Subpt.

The Listings describe specific impairments of each

of the major body systems which are considered “severe enough to
prevent a person from doing any gainful activity, regardless of
his or her age, education, or work experience.”
404.1525(a); see also id. § 416.925(a).

20 C.F.R. §

Most of these

impairments “are permanent or expected to result in death.”
§§ 404.1525(c)(4), 416.925(c)(4).

Id.

For some impairments, the

evidence must show that the impairment has lasted for a specific
time period.

Id. §§ 404.1525(c)(4), 416.925(c)(4).

“For all

others, the evidence must show that [the] impairment(s) has
4 Burnette cited Listing [redacted], which was replaced by Listing [redacted]
effective January 17, 2017, a date after Burnette’s hearing before ALJ Hughes
and prior to the date of decision. (ECF No. 16, Plaintiff’s Cross-Motion for
Judgment on the Pleadings.) The findings contained herein apply under both
Listing [redacted] and Listing [redacted].

9

lasted or can be expected to last for a continuous period of at
least 12 months.”

Id. §§ 404.1525(c)(4), 416.925(c)(4).

A

claimant is presumptively disabled if her impairment meets or
equals a listed impairment.

See, e.g., Schaal, 134 F.3d at 501

(“If the claimant’s impairment is one of those listed [in
Appendix 1], the SSA will presume the claimant to be
disabled.”).
A mere diagnosis is insufficient to meet or equal a
listed impairment.

20 C.F.R. §§ 404.1525(d); 416.925(d).

The

Listings describe the “the objective medical and other findings
needed to satisfy the criteria of that listing.”
404.1525(c)(3), 416.925(c)(3).

See id. §§

A claimant must establish that

she “satisfies all of the criteria of that listing, including
any relevant criteria in the introduction.”
404.1525(c)(3), 416.925(c)(3).

Id. §§

A claimant must show symptoms,

signs, and laboratory findings “at least equal in severity and
duration” to the characteristics of a relevant listed
impairment.

Id. §§ 404.1526, 416.926.

If a claimant’s

impairment is not listed, then the impairment will be compared
to listings that are “closely analogous” to the claimant’s
impairment.

See generally id. §§ 404.1526, 416.926 (explaining

medical equivalence).
The current listing applicable to [redacted], Listing
[redacted], provides that a claimant’s [redacted] renders him
10

presumptively disabled under certain circumstances.
[redacted].

Listing

A claimant with [redacted] is presumptively

disabled where, inter alia, the claimant provides enough
documentation of his [redacted] and of [manifestations and
limitations specified in the Listings].

Listing [redacted].

Former District Judge Gleeson explained that an ALJ’s
failure to properly apply the listing applicable to [redacted]
is grounds for remand:
An ALJ faced with an [redacted]-related disability must
evaluate the claimant’s allegations under Listings
[redacted] and [redacted]. Listing [redacted] contains an
extensive list of [redacted] symptoms and [redacted]related conditions, each of which, if found, would call for
a finding of disability. Among those symptoms and
conditions, a claimant’s [redacted] status meets the
listing where the claimant has suffered “[manifestations
and limitations specified in the Listings].” Listing
[redacted], which provides general instructions regarding
the ALJ’s evaluation of a claimant’s [redacted] symptoms,
states that the side effects of [redacted] medication are
to be given the same weight as effects of the disease
itself.
Milien v. Astrue, No. 10-CV-2447 JG, 2010 WL 5232978, at *7
(E.D.N.Y. Dec. 16, 2010) (addressing Listing [redacted], which
has since been replaced by Listing [redacted] (citations
omitted)).
The record in this case demonstrates that Burnette
suffered from fatigue, weakness, Hepatitis A, Hepatitis B,
Hepatitis C, herpes, colitis, and neuropathies.

ALJ Hughes

considered each of these impairments separately and found them

11

to be non-severe.

But ALJ Hughes failed to consider the

combined effect of these impairments and to properly address
them as symptoms of Burnette’s [redacted] infection under
Listing [redacted].

Indeed, several of Burnette’s impairments

are enumerated in Listing [redacted] as evidence of ongoing
[redacted] infection and should have been addressed as such.

As

ALJ Hughes failed to properly consider Listing [redacted], the
Court cannot meaningfully review ALJ Hughes’ determination that
Burnette did not qualify as disabled despite the evidence in the
record of Burnette’s [redacted] infection and the combined
effect of his impairments.
Conclusion
Federal regulations explicitly authorize a court, when
reviewing decisions of the SSA, to order further proceedings
where appropriate.

42 U.S.C. § 405(g) (“The 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.”).

Remand is warranted where “there

are gaps in the administrative record or the ALJ has applied an
improper legal standard.”

Rosa v. Callahan, 168 F.3d 72, 82-83

(2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d
Cir. 1996) (internal quotation marks omitted)).

Remand is

particularly appropriate where further findings or explanation
12

will clarify the rationale for the ALJ’s decision.
F.3d at 39.

Pratts, 94

In this action, remand is appropriate because ALJ

Hughes did not appropriately consider Listing [redacted] or
explain why Burnette did not meet or equal said listing.

This

action is accordingly REMANDED for further proceedings
consistent with this Memorandum and Order.
SO ORDERED.
Dated:

Brooklyn, New York
January 28, 2020
/s/
Hon. Kiyo A. Matsumoto
United States District Judge

13