United States District Court, S.D. New York
BRIDGETTE L. BURCH, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND
GREGORY H. WOODS, United States District Judge.
Bridgette L. Burch brings this action pro se
pursuant to 42 U.S.C. § 405(g), seeking review of the
final decision of the Commissioner of Social Security (the
“Commissioner”) denying her claim for disability
insurance benefits (“DIB”) under Title II of the
Social Security Act (the “Act”). The Commissioner
has moved for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure. For the
reasons stated below, the Commissioner's motion is
Ms. Burch's Claim for Benefits and Procedural
Burch applied for disability insurance benefits on October
17, 2011, alleging that she had become disabled on August 7,
2010. Tr. 206-07. In response to a DIB application question
that asked her to list all of the physical or mental
conditions that “limit [her] ability to work, ”
Ms. Burch listed: ulcerative colitis, endometriosis,
fibroids, scoliosis, Crohn's Disease, chronic fevers,
bleeding and pain, infertility, beta thalassemia minor,
dizziness, shortness of breath, hemivertebrae, facet joint
disease, arthritis, a herniated disc, vertebrae fusion in
neck and back, depression, anxiety, chronic fatigue syndrome,
blurred vision, night blindness, light sensitivity, chronic
pain in nerves and joints, and ringing in ears. Tr. 231. Her
application was denied initially on December 21, 2011 and at
the reconsideration level on December 10, 2012. Tr. 121-22,
145-46. Ms. Burch requested a hearing before an
administrative law judge (“ALJ”). Tr. 147-48.
After a hearing on March 6, 2014, ALJ Michael A. Krasnow
issued a decision on May 7, 2014 finding that Ms. Burch was
not disabled during the period between her amended alleged
onset date of September 25, 2011 and December 31, 2011 (her
“date last insured” or “DLI”). Tr.
12-22. The ALJ's decision became the final decision of
the Commissioner when, on September 23, 2015, the Appeals
Council denied Ms. Burch's request for review. Tr. 1-6.
November 25, 2015, Ms. Burch filed this pro se
action seeking review of the ALJ's decision pursuant to
Section 205(g) of the Act, 42 U.S.C. § 405(g). On June
8, 2016, the Commissioner moved for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c). ECF No.
19, Notice of Mot.; ECF No. 20, Mem. of Law in Supp. of Mot.
for J. on the Pleadings (“Comm'r Mem.”). Ms.
Burch filed a memorandum of law in opposition to the
Commissioner's motion on July 5, 2016. ECF No. 21, Mem.
of Law in Opp'n to Mot. for J. on the Pleadings
(“Pl.'s Mem.”). The Commissioner filed a
reply memorandum of law on July 19, 2016. ECF No. 22, Reply
Mem. of Law in Supp. of Mot. for J. on the Pleadings
(“Comm'r Reply Mem.”).
The Administrative Record Before the ALJ
Commissioner has provided a summary of the medical and
non-medical evidence in the administrative record.
See Comm'r Mem. at 2-16. Ms. Burch has not
contested the Commissioner's summary of this evidence,
nor has she provided her own summary. Having thoroughly
examined the administrative record, the Court incorporates by
reference the Commissioner's summary.
The March 6, 2014 Hearing
Burch was represented by attorney Jonathan R. Bromberg at her
hearing before the ALJ on March 6, 2014. Tr.
In an opening statement, Mr. Bromberg argued that Ms.
Burch's condition satisfied Listing 5.06 because she had
bowel blockages, a diagnosis of ulcerative colitis, and was
hospitalized twice more than 60 days apart. Tr. 33. Mr.
Bromberg also stated that, “given the frequency of her
need to toilet herself and everything,
there's―it's virtually impossible for her to
engage in any substantially gainful activity on a consistent
basis.” Id. Mr. Bromberg raised no objections
to the admission of the record into evidence. Tr. 32. He also
stated that he had discussed with Ms. Burch the issue of her
date last insured (“DLI”), and that it was
December 31, 2011. Tr. 34. Mr. Bromberg also moved to amend
Ms. Burch's alleged disability onset date from August 7,
2010 to September 25, 2011, the date on which Ms. Burch had
had a colonoscopy that Mr. Bromberg argued “[fell]
squarely within the confines of 5.06.” Tr. 73. Ms.
Burch explained to the ALJ that Mr. Bromberg had discussed
with her the ramifications of amending her onset date, as had
her husband. Tr. 73-74.
Burch testified that she was born in 1974, making her 40
years old at the time of the hearing. Tr. 37. She obtained a
bachelor's degree in August 2013. Tr. 39, 43-44. Ms.
Burch stated that she had not worked for pay or on a
volunteer basis since August 2010. Tr. 48-49. Her most recent
employment was at Southwest Reef Company, a saltwater
aquarium store owned by her brother. Tr. 44-47. She worked
there from March 2009 until August 2010, and her duties
included opening and closing the store, helping customers
with bagging items, opening deliveries, counting and stocking
items, and talking to customers. Tr. 45. According to her
testimony, Ms. Burch stopped working at Southwest Reef
Company because she could not physically carry and bag large
items, such as rocks and sand, that customers needed to set
up their fish tanks, and she was having trouble counting the
drawer and performing other closing duties. Tr. 46. She
testified that she was “constantly in the bathroom all
the time and when deliveries and stuff would come in, people
were getting frustrated that [she] wasn't upfront where
[she] needed to be” and that she did not feel that she
could physically perform the work that was expected of her.
Tr. 46-47. Since leaving that job, Ms. Burch had attempted
unsuccessfully to find a part time job that she could do for
a couple of hours each week from home. Tr. 48-49. Prior to
her job at Southwest Reef Company, Ms. Burch worked as a
senior licensing coordinator at an investment bank, where she
helped sales people obtain licenses. Tr. 46. She also worked
for the compliance department at the same bank. Id.
respect to her alleged disability, Ms. Burch testified that a
Dr. Farrer diagnosed her with irritable bowel syndrome
(“IBS”) in September 2011 after performing a
“scope.” Tr. 50. Ms. Burch started taking
medications for IBS that month, but they did not help; in
fact, some of them made her sicker. Tr. 51-52. She testified
that they made her bleeding worse, caused pain in her jaw and
other parts of her body, caused tingling in her hands and
feet, and increased her fatigue. Id. She had also
gained 20 pounds over the preceding few months due to the
medications. Tr. 37.
Burch stated that, during the period between August 2010 and
the end of 2011, she used the restroom between 20 and 30
times each day. Tr. 52-53. During that same period, she had
lost more than 25 pounds due to diarrhea and illness. Tr. 37.
The ALJ asked Ms. Burch when she started using the restroom
with such frequency, to which she responded: “Late
2009, I wasn't feeling right at all. 2010, it was
starting to increase significantly, like really, really bad.
By the time 2011 came, I was a wreck.” Tr. 52-53. Her
bleeding used to come and go every couple of weeks but
increased until it occurred daily every time Ms. Burch went
to the bathroom, even when she urinated. Tr. 53. Ms. Burch
testified that she had an accident at a grocery store in
early 2011, and at another store at some time thereafter. Tr.
55. She also had some accidents while in the car with her
husband. Id. Although she tried wearing special
undergarments, they caused frequent urinary tract infections.
Id. Also in an effort to address her symptoms, she
started taking special supplements and was prescribed a
mostly liquid diet with no fiber. Tr. 56. According to Ms.
Burch's testimony, her symptoms worsened after 2011, and
in 2012, another doctor (Dr. Carmen, who she began seeing in
May 2012) determined that Ms. Burch was allergic to one of
the medications she had been taking. Tr. 56-57.
also asked Ms. Burch several questions about her lifestyle
and daily activities during the period between August 2010
and the end of 2011. Ms. Burch testified that she lived with
her husband and two cats in a first-floor apartment. Tr. 38.
Although she had a driver's license, she stopped driving
during the summer of 2010 because she was having blackouts
and problems with her vision, which she was told were related
to her colon disease. Tr. 38-39. During 2011, she took online
law courses through Pennsylvania State University for a
“couple of hours” on a “couple of days a
week.” Tr. 39-42. During the hearing, Ms. Burch was
unable to recall exactly when she had withdrawn from the Penn
State program, though she testified that she thought she had
tried to withdraw at some point during the Fall 2011
semester. Tr. 41-42. In response to Ms. Burch's difficulty
recalling the exact dates, the ALJ asked Mr. Bromberg to
obtain and submit her educational records to establish
precisely when she was and was not in school. Tr. 44.
Burch testified that she was able to shower and get dressed
on her own, but had to do so while sitting on a stool due to
dizzy spells. Tr. 57-58. Her husband cooked, cleaned their
apartment, did their laundry, and took care of their cats.
Tr. 58. He also did most of the grocery shopping, though Ms.
Burch occasionally went with him to the store, which was just
a couple of blocks down the street. Id. Ms. Burch
stated that she spent a lot of her time in the bathroom, and
that when she was not in the bathroom, she rested and read
about her illness, in addition to taking her online classes.
Tr. 58-59. She also occasionally read books and magazines.
Tr. 61. She testified that she did not take any trips or
vacations outside the state and could not attend a movie or
go anywhere without having access to a bathroom. Tr. 60. She
also testified that she did not exercise regularly, aside
from stretches on the floor, light walking to and from the
car, and occasional five-minute walks around the property on
which she lived. Tr. 61, 63. When the ALJ asked Ms. Burch
about a doctor's notation dated December 2011 stating
that she rode a bicycle three days each week for an hour each
time, she stated that the note was incorrect, and that she
had only ridden the bicycle before the summer of 2011, when
her bleeding became a problem. Tr. 61-62. The ALJ also
advised Ms. Burch that the same doctor's note from
December 2011 stated that she walked for about 30 minutes
every day. Tr. 63-64. As with the bicycling, Ms. Burch
responded that she had stopped that routine in the summer of
2011, before her “constant chronic bleeding.”
to her testimony, Ms. Burch and her husband socialized with
his work friends occasionally, but mainly with her brother
and her brother's family. Tr. 64. They would go to her
brother's house, which was about 20 minutes away, to eat
and watch movies. Tr. 65. While there, her brother would
clear one of their bathrooms for Ms. Burch and tell everyone
else to use a different bathroom so that she could have
privacy. Tr. 65. Ms. Burch testified that she and her husband
did not attend church or other religious services during the
relevant period, nor did they attend sporting events,
concerts, or shows. Tr. 65.
then examined Dr. James Ryan, a vocational expert. First, the
ALJ asked Dr. Ryan to classify Ms. Burch's past work. Tr.
67. Dr. Ryan testified that, for her work at Southwest Reef
Company, where she had cashier and stocking duties,
“the DOT is 290.477-014, light exertional level, semi
skilled, SVP 3, ” with no transferability of skills.
Tr. 67. For her position at the investment bank,
Dr. Ryan testified that “the DOT is 186.117-090,
” and that it was sedentary and skilled, with an SVP of
8. Id. He also testified that “[t]here are
many and varied transferable skills from this position,
although it is already at the sedentary level as
classified.” Tr. 68.
then asked Dr. Ryan to assume a hypothetical individual with
the same age, education, and past jobs as Ms. Burch, with the
following residual functional capacity: the person is
“capable of the full range of light work, except can
occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl, never climb ropes, ladders, or
scaffolds.” Id. The ALJ added that this
hypothetical person “must have regular access to the
restroom, which is defined as the restroom being on the same
floor as the work station.” Id. The ALJ asked
Dr. Ryan whether that hypothetical person would be able to
perform any of Ms. Burch's past work. Id. Dr.
Ryan testified that such a person could perform all of Ms.
Burch's past work. Id.
then asked Dr. Ryan whether Ms. Burch's past work would
still be available if the hypothetical person was limited to
no more than occasional contact with the general public or
with co-workers. Id. Dr. Ryan testified that it
would not, but that there are other jobs that a person with
that added limitation could perform. Tr. 69. Specifically, he
testified that such an individual could perform the following
unskilled, light jobs: finish inspector, DOT 741.681.010 (48,
000 jobs nationwide); cable worker, DOT 788.687.142 (45, 000
jobs nationwide); and packer and packaging worker, DOT
920.685-026 (51, 000 jobs nationwide). Id. Dr. Ryan
also testified that, keeping all of the limitations the same,
including the limitation on interactions with the public and
co-workers, but reducing the exertion level down to
sedentary, an individual could perform the following jobs:
finish machine tender, DOT 739.685-054 (38, 000 jobs
nationwide); quality control worker, DOT 737.687-026 (46, 000
jobs nationwide); and grading and sorting worker, DOT
521.687-086 (36, 000 jobs nationwide). Tr. 69-70.
Ryan testified that all six of the jobs he had identified
would allow for a sit/stand option at will, but that the
introduction of that additional limitation would decrease the
numbers by 10 percent. Tr. 70. With respect to breaks and
absences, he testified that the customary tolerance in the
United states is one 15-minute break halfway through the
first half of the work session, a 30-60-minute break for
lunch, and a second 15-minute break during the second half of
the work session. Tr. 70. Finally, Dr. Ryan testified that,
if an individual required more breaks and was off task during
20% or more of the work day, she would “not be
employable.” Tr. 71. He also testified, in response to
a question from Mr. Bromberg, that if an individual were away
from the work task for seven or eight breaks per day, each of
five to ten minutes duration, an individual with Ms.
Burch's work history would not be employable. Tr. 72.
The ALJ's Decision
finding that Ms. Burch's DLI was December 31, 2011, the
ALJ evaluated Ms. Burch's claims according to the
five-step sequential evaluation process and concluded that
Ms. Burch was not under a disability within the meaning of
the Act during the period between her alleged onset date of
September 25, 2011 and her DLI of December 31, 2011 (the
“Relevant Period”). At step one, the ALJ found
that Ms. Burch did not engage in substantial gainful activity
(“SGA”) during the Relevant Period. Tr. 14. At
step two, he determined that Ms. Burch had the following
severe impairments during the Relevant Period: irritable
bowel syndrome and degenerative disc disease. Tr. 14-16. He
determined that Ms. Burch's medically determinable mental
impairments were not severe, because they did not cause more
than minimal limitation in her ability to perform basic
mental work activities. Tr. 14. The ALJ determined at step
three that none of Ms. Burch's impairments, nor any
combination of those impairments, was of a severity to meet
or medically equal one of the listed impairments in Appendix
1 of the regulations. Tr. 16-17.
then determined that Ms. Burch had the residual functional
capacity to perform “light work” as defined in
the regulations, except that she could only occasionally
climb ramps and stairs, balance, stoop, kneel, crouch, and
crawl, and could never climb ropes, ladders, and scaffolds.
Tr. 17-20. The ALJ also added to her residual functional
capacity that she required regular access to a restroom,
defined as the restroom being on the same floor of the
workstation. Id. In making this finding, the ALJ
considered Ms. Burch's symptoms, objective medical
evidence and other evidence, as well as opinion evidence.
Id. The ALJ concluded that, although Ms. Burch's
medically determinable impairments could reasonably be
expected to cause her alleged symptoms, her “statements
concerning the intensity, persistence and limiting effects of
[her] symptoms [were] not entirely credible.” Tr. 19.
He also noted that he had accorded the opinion of treating
physician Dr. Jessica Norman no weight, because she had begun
treating Ms. Burch approximately 15 months after her DLI,
which was “too remote to be relevant.” Tr. 20.
The ALJ also noted that “no treating or examining
physician endorsed [Ms. Burch's] disability” during
the Relevant Period. Id.
four, considering Ms. Burch's “age, education, work
experience, and residual functional capacity, ” the ALJ
found that Ms. Burch was “capable of performing past
relevant work as a fish store cashier/stocking clerk and/or
compliance officer” as generally performed. Tr. 20-21.
The ALJ relied on the testimony of a vocational expert. Tr.
the ALJ had found that Ms. Burch was not disabled at step 4,
he made an alternative finding at step 5 that,
“considering Ms. Burch's age, education, work
experience, and residual functional capacity, there were
other jobs that existed in significant numbers in the
national economy that [she] also could have performed.”
Tr. 21. Because Ms. Burch had additional limitations that
impeded her capacity to perform the full range of
“light work, ” the ALJ could not rely on the
Medical-Vocational Guidelines. Instead, he relied on the
testimony of the vocational expert. Tr. 21-22. The vocational
expert identified three jobs that existed in the national
economy for someone of Ms. Burch's age, education, work
experience, and residual functional capacity. Tr. 22. The
vocational expert also identified three jobs that existed in
the national economy for someone of Ms. Burch's age,
education, and work experience, but with a residual
functional capacity that only permitted sedentary work.
Id. The ALJ determined that the vocational
expert's testimony was consistent with the information
contained in the DOT. Id.
APPLICABLE LEGAL STANDARDS
Standard of Review
motion for judgment on the pleadings should be granted if it
is clear from the pleadings that “the moving party is
entitled to judgment as a matter of law.” Burns
Int'l Sec. Servs., Inc. v. Int'l Union, 47 F.3d
14, 16 (2d Cir. 1995). In reviewing a decision of the
Commissioner, a court may “enter, upon the pleadings
and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner . .
. with or without remanding the cause for a rehearing.”
42 U.S.C. § 405(g). The ALJ's disability
determination may be set aside only if it is based on legal
error or is not supported by substantial evidence. See
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
“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.”
Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)
(quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). As the Second Circuit has observed, it is “a
very deferential standard of review-even more so than the
‘clearly erroneous' standard.” Brault v.
Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (citing
Dickinson v. Zurko, 527 U.S. 150, 153 (1999)).
findings of the Commissioner as to any fact are supported by
substantial evidence, those findings are conclusive. Diaz
v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995).
“[O]nce an ALJ finds facts, [the reviewing court] can
reject those facts only if a reasonable factfinder would have
to conclude otherwise.” Brault, 683 F.3d at
448 (internal quotations marks and emphasis omitted). The
court must not make a de novo determination of
disability. See Veino v. Barnhart, 312 F.3d 578, 586
(2d Cir. 1995). In addition, it is the function of the
Commissioner, not the reviewing court “to resolve
evidentiary conflicts and to appraise the credibility of
witnesses, including the claimant.” Aponte v.
Sec'y, Dep't of Health & Human Servs., 728
F.2d 588, 591 (2d Cir. 1984) (citation omitted); see also
Gernavage v. Shalala, 882 F.Supp. 1413, 1419 n.6
(S.D.N.Y. 1995) (“Deference should be accorded the
ALJ's [credibility] determination because he heard
plaintiff's testimony and observed his demeanor
(citations omitted)). Thus, the ALJ, “after weighing
objective medical evidence, the claimant's demeanor, and
other indicia of credibility . . . may decide to discredit
the claimant's subjective estimation of the degree of
impairment.” Tejada v. Apfel, 167 F.3d 770,
776 (2d Cir. 1999). An ALJ's decision on credibility
“must contain specific reasons for the finding on
credibility, supported by evidence in the case record, and
must be sufficiently specific to make clear to the individual
and to any subsequent reviewers the weight the adjudicator
gave to the individual's statements and the reasons for
that weight.” Clarke v. Colvin, No. 15-cv-354
(KBF), 2017 WL 414489, at *6 (S.D.N.Y. Jan. 31, 2017) (citing
Social Security Ruling 96-7p).
se litigants “are entitled to a liberal
construction of their pleadings, ” and, therefore,
their complaints “should be read to raise the strongest
arguments that they suggest.” Green v. United
States, 260 F.3d 78, 83 (2d Cir. 2001) (citation and
internal quotation marks omitted); see also Alvarez v.
Barnhart, No. 03-cv-8471 (RWS), 2005 WL 78591, at *1
(S.D.N.Y. Jan. 12, 2005) (articulating liberal pro
se standard in reviewing denial of disability benefits).
The Definition of Disability
entitlement to disability insurance, a claimant must show
that she is disabled within the meaning of the Social
Security Act. “Establishing the mere presence of a
disease or impairment is not sufficient for a finding of
disability under the Act; the disease or impairment must
result in severe functional limitations that prevent the
claimant from engaging in any substantial gainful
activity.” Marrero v. Apfel, 87 F.Supp.2d 340,
346 (S.D.N.Y. 2000) (citing 42 U.S.C. § 423(d)(2)(A) and
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)). A
claimant is disabled under the Act if she demonstrates an
“inability 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 can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). A determinable physical or mental impairment is
defined as one that “results from anatomical,
physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § 423(d)(3). A
claimant will be ...