WARREN W. EGINTON, Senior District Judge.
Plaintiff Christopher Mitkowski brings this action pursuant to 42 U.S.C. §405(g), seeking review of a final decision of the Commissioner of Social Security denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §401
For the reasons set forth below, plaintiff's Motion for Order Reversing the Decision of the Commissioner or in the Alternative Motion for Remand for a Hearing
The procedural history of this case is not disputed. Plaintiff filed an application for SSI on February 7, 2014, alleging disability as of April 17, 2013. [Certified Transcript of the Record, Compiled on May 8, 2018, Doc. #19 (hereinafter "Tr.") 20, 197-204]. Plaintiff alleged disability due to "back, kidney problems and broken right ankle." [Tr. 93, 112]. His SSI claim was denied initially on September 4, 2014, and on reconsideration on December 30, 2014. [Tr. 20, 127-29, 138-40]. Plaintiff filed a timely request for a hearing before an Administrative Law Judge ("ALJ") on February 7, 2015. [Tr. 20, 141].
On May 10, 2016, Administrative Law Judge ("ALJ") Deirdre R. Horton held a hearing, at which plaintiff appeared with an attorney and testified. [Tr. 41-92]. Vocational Expert ("VE") Frank D. Samlaska also testified at the hearing. [Tr. 76-91, 262-63]. On July 18, 2016, the ALJ found that plaintiff was not disabled, and denied her claim. [Tr. 17-40]. Plaintiff filed a timely request for review of the hearing decision on September 20, 2016. [Tr. 190-93].
On January 12, 2018, the Appeals Council denied review, thereby rendering ALJ Kuperstein's decision the final decision of the Commissioner. [Tr. 1-6].
Plaintiff, represented by counsel, timely filed this action for review and moves to reverse and/or remand the Commissioner's decision.
The review of a social security disability determination involves two levels of inquiry.
The Court does not reach the second stage of review — evaluating whether substantial evidence supports the ALJ's conclusion — if the Court determines that the ALJ failed to apply the law correctly.
"[T]he crucial factors in any determination must be set forth with sufficient specificity to enable [a reviewing court] to decide whether the determination is supported by substantial evidence."
It is important to note that in reviewing the ALJ's decision, this Court's role is not to start from scratch. "In 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."
Under the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits.
To be considered disabled under the Act and therefore entitled to benefits, Mr. Mitkowski must demonstrate that he is unable to work after a date specified "by reason of any medically determinable physical or mental impairment 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). Such impairment or impairments must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §423(d)(2)(A);
There is a familiar five-step analysis used to determine if a person is disabled.
"Through the fourth step, the claimant carries the burdens of production and persuasion, but if the analysis proceeds to the fifth step, there is a limited shift in the burden of proof and the Commissioner is obligated to demonstrate that jobs exist in the national or local economies that the claimant can perform given his residual functional capacity."
"In assessing disability, factors to be considered are (1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience."
Following the above-described five step evaluation process, ALJ Horton concluded that plaintiff was not disabled under the Social Security Act. [Tr. 17-40]. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since February 7, 2014, the application date. [Tr. 22].
At step two, the ALJ found that plaintiff had status post ORIF (open reduction internal fixation) right ankle fracture; degenerative disc disease; and affective disorder with generalized anxiety, all of which are severe impairments under the Act and regulations. [Tr. 22].
At step three, the ALJ found that plaintiff's impairments, either alone or in combination, did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Pt. 404, Subpart P, Appendix 1 (20 C.F.R. §§416.920(d), 416; 925 and 416.926). [Tr. 24]. The ALJ specifically considered Listing 1.04 (disorders of the spine); 1.02B (major dysfunction of a joint); 12.04 (affective disorder); and 12.06 (anxiety disorder). [Tr. 24-26]. The ALJ also conducted a psychiatric review technique and found that plaintiff had a mild limitation in activities of daily living and a moderate limitation in social functioning and concentration, persistence or pace. [Tr. 25]. The ALJ found that claimant had no periods of decompensation, which have been of extended duration [Tr. 25].
Before moving on to step four, the ALJ found that plaintiff had the residual functional capacity (RFC) to
[Tr. 26].
At step four, the ALJ found plaintiff was unable to perform any past relevant work as a sheet rocker and taper. [Tr. 32]. At step five, after considering plaintiff's age, education, work experience and RFC, the ALJ found that jobs existed in significant numbers in the national economy that plaintiff could perform. [Tr. 32-33].
The ALJ concluded that plaintiff had not been under a disability since February 7, 2014, the date of the application. [Tr. 33].
Plaintiff makes several arguments in support of his position that the ALJ's decision should be reversed and/or remanded. The Court will address these arguments in turn.
Plaintiff argues that the ALJ made factual errors or misstatements that require remand. [Doc. #22-2 at 7-11].
Plaintiff first objects to the ALJ's statements that plaintiff "presented no reliable evidence that he is mentally incapable of performing any activities that he chooses to perform" and that "the claimant was noted to have poor compliance with appointments and he was reportedly inconsistent with sobriety prior to June 2014." [Tr. 29-30 (citing Ex. 13F/3, 54, 66, 67)]. However, these statements are not a "mischaracterization" or "misstatement" of the evidence of record, but rather, it is the ALJ's conclusion regarding the evidence of record, which is supported by a summary of the treatment records. [Tr. 1558, 1621-22]. As the Commissioner correctly argues, the ALJ's "conclusion [was] properly reached based on the factors in 20 C.F.R. §416.929(c) and supported by substantial evidence." [Doc. #23 at 4].
The Court agrees with defendant that "[n]o medical source has specifically attributed Plaintiff's lack of compliance to the effects of his mental illness apart from the drinking." [Doc. #23 at 4 (citing Tr. 1558, 1579, 1659, 1871, 2569, 3006]. This medical evidence is substantial evidence that supports the ALJ's conclusion.
Similarly, plaintiff cites to two notations in the record to support the contention that plaintiff "does not understand the basic concept of e-mail." [Doc. #22-2 at 8 (citing Tr. 2844, 2853)]. These records show that plaintiff worked with a case worker and resolved the e-mail problems he was experiencing. [Tr. 2844 (while engaging in job searches and job applications plaintiff worked with a case worker to problem solve and received guidance), Tr. 2853 (case worker explaining on line job search engines and application process)]. Indeed, although the record shows that plaintiff had interacted on two occasions with staff requesting assistance with e-mail and job searches, his questions were resolved and there is also a notation that he was able to research home furnishings on a lap top computer. [Tr. 3166].
Other evidence of record cited by defendant demonstrated that plaintiff does not have a cognitive impairment precluding any employment. [Doc. #23 at 5-6 (citing Tr. 30 (ALJ noting plaintiff's "demeanor at the hearing was normal and he demonstrated normal cognition and concentration with normal mood."); Tr. 2790 (noting that "veteran was appropriate in the interview, asking questions and communicating an understanding of the program and its goals."), Tr. 2796 (applied to 7 jobs and a few places in person); Tr. 2803, 2819, 3100, 3149, 3191 (demonstrating activities of daily living supporting the ALJ's conclusion); Tr. 3149 (case worker writing "No known barriers to compliance or learning."); Tr. 3166 (using a laptop to research home furnishings and speaking to organizations to get help with electric bills); Tr. 2856 (repairing his vehicle); Tr. 2803 (prepared Thanksgiving meal for residents of Brownell House); Tr. 3298 (noting apartment is well-maintained); Tr. 2839, 3191 (noting his good work as a housekeeper); Tr. 2786 (plaintiff stating "I can do any job. I learn fast and can do the full scope of any job with little training."); Tr. 2922, 3201, 3292, 3305, 3318; (treatment records indicating no evidence of serious deficit with cognition, memory, attention, concentration, insight or judgment); Tr. 2647 (Psychiatrist Dr. Robert Feeley stating plaintiff had "average ability/functioning" carrying out single and multi-step instructions, "sometimes a problem, or reduced ability" with persistence and pace)]. Plaintiff cites to no medical opinion to contradict Dr. Feeley's mental assessment.
The Court finds no error on this claim.
Plaintiff next asserts that the ALJ erred in finding that he "performs odd jobs for his brother" and "was noted to perform housekeeping services when he resided at Brownwell House." [Doc. #22-2 at 8 (citing Tr. 29)]. Plaintiff objects to this finding asserting that he testified that he "rarely" helped his brother and that he had to move out of Brownell House due to an inability to do these housekeeping services." [Doc. #22-2 at 8 (citing Tr. 72-73)]. Plaintiff has no other support for this position other than his testimony at the ALJ's hearing.
However, as set forth in the Commissioner's brief, there is other evidence in the record indicating plaintiff reported that he regularly assisted his brother with "odd jobs" a few hours a week including installing drywall and that he reported other employment, including for his brother, on multiple occasions.
Plaintiff next objects to the ALJ's finding that "the claimant reportedly sought VA services for vocational rehabilitation with notes indicating that he looked for work and followed up on all leads." [Tr. 30]. Specifically, Mitkowski states that he "did look for work, but he repeatedly reported that he is unable to work." [Doc. #22-2 at 9]. The Court has reviewed the evidence cited by plaintiff and finds it does not support for his contention that the ALJ's finding was error.
The first record cited by plaintiff from December 2013 was shortly after plaintiff was released from prison when he was seen complained he could not work due to low back pain. [Tr. 1340]. The clinician noted that plaintiff was drinking alcohol and was "given 20 5mg oxycodone two days ago, and has run through them.... However he told orthopedic PA that he was better two days ago. Chart is a testament to his substance abuse proclivities." [Tr. 1340]. The second record cited to by plaintiff in support of his argument is from March 19, 2014, one month
As such, there is no error in the ALJ's recitation of evidence in the record.
Finally, plaintiff takes exception with the ALJ's finding that "[s]ince the claimant's application date, he has sought treatment for residual problems of his right ankle fracture and back pain complaints and only conservative treatment has been recommended for his conditions." [Tr. 30]. As demonstrated by the Commissioner, substantial evidence supports the ALJ's finding.
The record demonstrates that plaintiff received conservative treatment for his low back pain and that diagnostic imaging showed there was "nothing structurally wrong." [Doc. #23 at 10 (citing Tr. 2571)]. Contrary to his assertion, plaintiff was
[Tr. 2575]. Plaintiff was informed that injections and/or surgery is invasive and considered last resort if prior conservative treatment fails. [Tr. 2575-76]. The treatment note further states that plaintiff expressed resistance to physical therapy and had a "long" history of no show to multiple appointments and that he was counseled that consistency "will be key to getting relief from his intermittent back pain." [Tr. 2576]. Defendant correctly states that "there is no evidence that plaintiff ever followed up with physical therapy" [Doc. #23 at 11 (citing Tr. 2982, 2928, 3090, 3129)], or that he mentioned "his back pain specifically at any later primary care visit, and the notes do not indicate that he received any treatment other than ibuprofen." [Doc. #23 at 11 (citing 2928, 2982, 3090, 3129)]. Accordingly, substantial evidence supports that ALJ's finding that plaintiff received conservative treatment for lower back pain.
Similarly, substantial evidence support the ALJ's finding that during the disability period under consideration, plaintiff received conservative care for his right ankle pain. Plaintiff's right ankle injury and January 2013 open reduction internal fixation ("ORIF") surgery predated his SSI application date of February 7, 2014. Since the application date, diagnostic imaging was "unremarkable" showing no hardware failure or any remarkable abnormality. [Tr. 1857, 2243]. Plaintiff treated with an ankle brace [Tr. 2060, 2928], ibuprofen and lidocaine patch [Tr. 2899, 2928, 2986]. On examination he experienced no pain, ambulated "seemingly" within normal limits and walked without an assistive device. [Tr. 2932]. In July 2015, PA Vitale noted that plaintiff had a follow-up appointment with an orthopedist on July 30, 2015, however, there are no orthopedic treatment records for this date. [Tr. 2933]. Plaintiff cited to no evidence of record that he complained of ankle pain at future primary care appointments or that he treated with an orthopedist.
Whether there is "substantial evidence supporting the appellant's view is not the question here; rather, we must decide whether substantial evidence supports
Plaintiff argues that the ALJ failed to account for certain limitations of plaintiff in formulating an RFC assessment. He argues that the ALJ "
An ALJ has the responsibility to determine a claimant's RFC based on all the evidence of record. 20 C.F.R. §§404.1545(a)(1), 416.945(a)(1). The RFC is an assessment of "the most [the disability claimant] can still do despite [his or her] limitations." 20 C.F.R. §404.1545(a)(1), 416.945(a)(1).
When identifying a claimant's RFC, the ALJ must engage in a two-step process. First, the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged; if so, then the ALJ must consider the extent to which any alleged functional limitations that are due to such symptoms are reasonably consistent with objective medical evidence and other evidence.
Plaintiff has the burden to demonstrate functional limitations that would preclude any substantial gainful activity.
Plaintiff contends that the ALJ should have limited him to "no coworker interaction and work in a private setting." [Doc. #22-2 at 12]. In support of that position, the plaintiff relies on the opinion of Psychiatrist Dr. Feeley.
The ALJ's RFC determination provides that plaintiff "is able to work around others but should have only occasional direct interaction with coworkers." [Tr. 26]. That finding is supported by the December 2014 opinion of plaintiff's psychiatrist Dr. Feeley who found that there is "sometimes a problem or reduced ability" with social interaction including "interacting appropriately with others" and "getting along with others without distracting them or exhibiting behavioral extremes." [Tr. 2646]. Also in December 2014, State agency psychologist Dr. Lindsey Harvey, Ph.D. found plaintiff was "moderately" limited interacting with the general public and getting along with coworkers or peers, but found no significant limitations maintaining socially appropriate behavior, accepting instructions and responding appropriately to criticism from supervisors. No significant limitations were assessed. [Tr. 121-22].
Neither of these opinions support plaintiff's contention that the ALJ should have limited him to
Significantly, the treatment records indicate that plaintiff's anger problems and mood improved after he got sober in July 2014. [Tr. 2894 (reporting that "he feels that his anger has improved after stopping his drinking."); Tr. 3201 ("improved mood after stopping drinking")]. Plaintiff reported sleeping well and improved anxiety while taking medication. [Tr. 3201; 3291]. In recent psychiatric treatment notes, plaintiff repeatedly indicated that he was doing well and exhibited no difficulty with communication, behavior or cooperation during these visits. [Tr. 2802, 3201, 3291, 3304, 3317].
Last, as previously set forth in this opinion, plaintiff's activities of daily living support the ALJ's RFC determination that plaintiff can tolerate "occasional direct interaction with coworkers." [Tr. 26].
The Court agrees with the reasons set forth by the Commissioner, and the objective medical evidence cited in his brief, to show that the ALJ's RFC determination was supported by substantial evidence. [Doc. #23 at 12-23].
The ALJ's RFC finding regarding interaction with coworkers is supported by substantial evidence.
The ALJ's RFC determination provides that plaintiff "is able to perform simple, routine tasks." [Tr. 26]. Plaintiff argues that the "ALJ
Once again plaintiff reiterates his difficulties with e-mail and the computer generally. The Court has previously addressed this contention and finds that substantial evidence supports the ALJ's finding.
The Commissioner correctly asserts that there is no opinion of record to support a more restrictive RFC. Treating Psychiatrist Dr. Feeley described plaintiff's cognitive functioning as "fine," with normal attention and concentration and opined that he had an average ability to carry out both simple and multi-step instructions, focus long enough to complete simple tasks, and change from one simple task to another. [Tr. 2645, 2647]. Dr. Feeley, however, found that plaintiff would sometimes have a problem performing basic activities at a reasonable pace and persisting in simple activities without interruption from symptoms. [Tr. 2647]. State agency Psychologist Dr. Harvey, found no limitation in the areas of understanding and memory, or sustained concentration and persistence. [Tr. 121]. The medical opinions of record support the ALJ's RFC.
As previously set forth in this opinion objective medical evidence of record support the ALJ's RFC. [Tr. 2894, 3201 (mood and anger improved with sobriety); Tr. 2895, 2956, 3201, 3291 (sleep difficulty and anxiety improved with medication); Tr. 2922, 3201, 3292, 3305, 3318 (treatment notes throughout indicated no evidence of serious deficit of cognition, memory, attention, concentration, insight or judgment).
Moreover, the ALJ had the opportunity to personally observe plaintiff and his testimony, something the Court cannot do.
Finally, as set forth in this opinion, plaintiff's daily activities provide substantial evidence that he can perform simple routine tasks. [Tr. 228-31 (reporting he maintains grooming, hygiene, dress, does laundry and "light cleaning", maintain finances and shopping); Tr. 3147, 3316 (maintained relationships with family and friends); Tr. 2803 (prepared a Thanksgiving meal for housemates); Tr. 3147 (regularly attended Church); Tr. 3210 (worked up to 20 hours per week as a housekeeper at a group home); Tr. 2856 (repaired his vehicle)]. As discussed, with treatment and sobriety, plaintiff was eventually able to obtain and maintain his own apartment and live independently. [Tr. 3298].
Accordingly, substantial evidence of record supports the ALJ's RFC limitation that plaintiff is able to perform simple, routine tasks.
Plaintiff next contends that the "ALJ
However, there is no medical opinion of record that plaintiff had any more than "some" difficulties with persistence or pace, to render plaintiff off task for any significant period of time. [Tr. 121, 2647]. As previously discussed, Dr. Feeley opined that plaintiff had normal attention and concentration and State agency physician Dr. Harvey found no limitations to sustained concentration and persistence. [Tr. 121, 2645]. Other evidence of record recited above demonstrates that plaintiff had no serious limitation with maintaining a reasonable pace in a work setting.
Accordingly, the Court finds there is no error on this claim.
Next, plaintiff argues that the "ALJ
First, no opinion evidence suggests any hearing limitation that would require work in a quiet environment. Consultative Examiner Dr. Adrian Klufas, did not assess any hearing limitation. [Tr. 1627-28]. When plaintiff attended the medical consultative examination he did not report any hearing problems and Dr. Klufas found that his "hearing was good." [Tr. 1626-27]. Nor did the State agency medical consultants Drs. Anita Bennett or T. Bessent assess a severe hearing impairment.[Tr. 106-08; 117, 119-21].
Moreover, treatment records support a finding that plaintiff's hearing loss produced no significant limitations. The Commissioner argues, and the Court agrees, that in light of plaintiff's lack of sustained audiological treatment, the absence of any significant observed difficulties by his treatment providers, the opinion evidence finding no significant limitation, activities of daily, and inconsistent use of his hearing aid, the ALJ was not required to restrict plaintiff to quiet environments. [Doc. #23 at 19]. The Court has carefully reviewed the evidence of record cited by defendant and finds that substantial evidence supports the ALJ's RFC.
Further, the ALJ had an opportunity to observe plaintiff at the hearing and found that he "was able to testify at the hearing without any difficulty or noticeable hearing issues, even without a hearing aid." [Tr. 23, 68-69]. Plaintiff testified that he has a 10% service-connected disability to his right ear and "should be wearing" a hearing aid because when he wears his hearing aid it "makes a difference." [Tr. 68-69]. As noted by defendant, the ALJ's hearing was not the only time that plaintiff did not wear his hearing aid. [Tr. 3287 (reporting that he had "hearing loss in the right ear, patient has a hearing aid, that he did not bring with him.")].
Accordingly, the Court finds no error on this claim.
Last, plaintiff argues that the ALJ
No opinion evidence supports the plaintiff's assertion that he should be limited to sedentary work.
As previously set forth in this opinion, plaintiff received conservative treatment for back and ankle pain.
Finally, as previously stated, plaintiff's activities of daily living demonstrate an ability to perform light work. There is no objective evidence of record that plaintiff had physical difficulties working as a housekeeper for up to 20 hours per week or that he was unable to apply for full time work as a housekeeper. [Tr. 3191, 3210, 3288]. Other skills of daily living included repairing his truck, preparing a Thanksgiving meal for housemates, maintaining his apartment and plaintiff reported that he "often" walked to the VA Hospital from the West Haven train station. [Tr. 2200, 2856, 2803, 3298].
Accordingly, substantial evidence supports the ALJ's finding that plaintiff had the capacity to perform light work.
Finally, plaintiff argues that the ALJ should have applied Medical-Vocational Rule 201.14, which directs a finding of "disabled." [Doc. #22-2 at 21 (citing 20 C.F.R., Pt. 404, subpt. P, App. 2 §201.14)]. Plaintiff acknowledges, however, that this argument is predicated on the ALJ finding plaintiff capable of only sedentary work. As set forth above, substantial evidence supports the ALJ's finding that plaintiff is capable of light work with limitations.
Accordingly, the Court finds that the ALJ properly applied Medical-Vocational Rule 202.14, and found plaintiff not disabled with the assistance of vocational expert testimony.[Tr. 33]. On this basis there is no step five error.
For the reasons stated, plaintiff's Motion for Order Reversing the Decision of the Commissioner or in the Alterative Motion for Remand for a Hearing
The plaintiff's complaint [Doc. #1] is
SO ORDERED.
20 C.F.R. §416.967(b).