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Burch v. Commissioner of Social Security

United States District Court, S.D. New York

March 28, 2017

BRIDGETTE L. BURCH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND

          GREGORY H. WOODS, United States District Judge.

         Plaintiff 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 GRANTED.

         I.BACKGROUND[1]

         A. Ms. Burch's Claim for Benefits and Procedural History

         Ms. 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.

         On 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.”).

         B. The Administrative Record Before the ALJ

         The 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.

         C. The March 6, 2014 Hearing

         Ms. Burch was represented by attorney Jonathan R. Bromberg at her hearing before the ALJ on March 6, 2014. Tr. 31.[2] 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.[3]

         Ms. 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.

         With 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.

         Ms. 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.

         The ALJ 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.[4] 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.

         Ms. 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.” Id.

         According 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.

         The ALJ 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.[5] 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.

         The ALJ 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.

         The ALJ 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.

         Dr. 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.

         D. The ALJ's Decision

         After 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.

         The ALJ 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.

         At step 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. 21.

         Although 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.

         II. APPLICABLE LEGAL STANDARDS

         A. Standard of Review

         A 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)).

         If the 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).

         Pro 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).

         B. The Definition of Disability

         To gain 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 ...


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