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Sweda v. Berryhill

United States District Court, E.D. New York

January 2, 2018

BARBARA A. SWEDA, Plaintiff,
NANCY BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.


          PAMELA K. CHEN, United States District Judge

         Plaintiff Barbara A. Sweda (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking judicial review of the Social Security Administration's (“SSA”) denial of her claim for Disability Insurance Benefits (“DIB”). The parties have cross-moved for judgment on the pleadings. (Dkts 9, 13.) Plaintiff seeks reversal of the Commissioner's decision and an immediate award of benefits, or alternatively, remand for further administrative proceedings. The Commissioner seeks affirmation of the denial of Plaintiff's claims. For the reasons set forth below, the Court grants Plaintiff's motion for judgment on the pleadings and denies the Commissioner's motion. The case is remanded for further proceedings consistent with this Order.



         On October 6, 2011, Plaintiff filed an application for DIB, claiming that she has been disabled since October 1, 2011. (Tr. 157, 306.)[2] The claim was initially denied on February 23, 2012. (Tr. 179-182.) After her claim was denied, Plaintiff requested and appeared for a hearing before an administrative law judge (“ALJ”) on January 10, 2013. (Tr. 47-106.) By decision dated March 18, 2013, ALJ Hazel C. Strauss found that Plaintiff was not disabled within the meaning of the Social Security Act from October 1, 2011, her alleged onset date, through the date of the ALJ's decision.[3] (Tr. 154-170.) On April 3, 2013, Plaintiff requested a review of the decision by ALJ Strauss (Tr. 224-225) and the Appeals Council remanded the claim for a new hearing in an order dated June 3, 2014 (Tr. 175-178). On September 24, 2015, ALJ Michael Friedman held a second hearing. (Tr. 107-151.) By decision dated November 2, 2015, ALJ Friedman found that Plaintiff was not disabled. (Tr. 19-39.) On November 6, 2015, Plaintiff requested a review of the ALJ's decision (Tr. 17-18) and the Appeals Council denied the request for review on September 11, 2016 (Tr. 1-5). Based upon this denial, Plaintiff filed an action in this Court seeking reversal or remand of the ALJ Friedman's November 2, 2015 decision.


         Unsuccessful claimants for disability benefits under the Social Security Act (the “Act”) may bring an action in federal district court seeking judicial review of the Commissioner's denial of their benefits. 42 U.S.C. § 405(g). In reviewing a final decision of the Commissioner, the Court's role 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.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted). “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.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (alterations and internal quotation marks omitted)). In determining whether the Commissioner's findings were based upon substantial evidence, “the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Id. (quotation omitted). However, “it is up to the agency, and not this court, to weigh the conflicting evidence in the record.” Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). If there is substantial evidence in the record to support the Commissioner's findings as to any fact, those findings are conclusive and must be upheld. 42 U.S.C. § 405(g); see also Cichocki v. Astrue, 729 F.3d 172, 175-76 (2d Cir. 2013).


         To receive DIB, claimants must be disabled within the meaning of the Act. Claimants establish disability status by demonstrating 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), 1382c(a)(3). The claimant bears the initial burden of proof on disability status and must demonstrate disability status by presenting medical signs and findings, established by “medically acceptable clinical or laboratory diagnostic techniques, ” as well as any other evidence the Commissioner may require. 42 U.S.C. §§ 423(d)(5)(A), 1382c(a)(3)(D). However, the ALJ has an affirmative obligation to develop the administrative record. Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). This means that the ALJ must seek additional evidence or clarification when the claimant's medical reports contain conflicts or ambiguities, if the reports do not contain all necessary information, or if the reports lack medically acceptable clinic and laboratory diagnostic techniques. Demera v. Astrue, No. 12 Civ. 432, 2013 WL 391006, at *3 (E.D.N.Y. Jan. 24, 2013); Mantovani v. Astrue, No. 09 Civ. 3957, 2011 WL 1304148, at *3 (E.D.N.Y. Mar. 31, 2011).

         In evaluating disability claims, the ALJ must adhere to a five-step inquiry. The claimant bears the burden of proof in the first four steps in the inquiry; the Commissioner bears the burden in the final step. Talavera, 697 F.3d at 151. First, the ALJ determines whether the claimant is currently engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If the answer is yes, the claimant is not disabled. If the claimant is not engaged in “substantial gainful activity, ” the ALJ proceeds to the second step to determine whether the claimant suffers from a “severe impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is determined to be severe when it “significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the impairment is not severe, then the claimant is not disabled within the meaning of the Act. However, if the impairment is severe, the ALJ proceeds to the third step, which considers whether the impairment meets or equals one of the impairments listed in the Act's regulations (the “Listings”). 20 CFR § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the ALJ determines at step three that the claimant has one of the listed impairments, then the ALJ will find that the claimant is disabled under the Act. On the other hand, if the claimant does not have a listed impairment, the ALJ must determine the claimant's “residual functional capacity” (“RFC”) before continuing with steps four and five. The claimant's RFC is an assessment which considers the claimant's “impairment(s), and any related symptoms . . . [which] may cause physical and mental limitations that affect what [the claimant] can do in the work setting.” 20 C.F.R. § 404.1545(a)(1). The ALJ will then use the RFC determination in step four to determine if the claimant can perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the answer is yes, the claimant is not disabled. Otherwise the ALJ will proceed to step five where the Commissioner then must determine whether the claimant, given the claimant's RFC, age, education, and work experience, has the capacity to perform other substantial gainful work in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). If the answer is yes, the claimant is not disabled; otherwise the claimant is disabled and is entitled to benefits. Id.


         From June 1982 until April 2010, when the hospital where she worked closed, Plaintiff worked as a respiratory therapist. (Tr. 353.)

         In 1960 or 1961, Plaintiff was diagnosed with juvenile myoclonic epilepsy. (Tr. 471.) Plaintiff was placed on Primidone and, according to neurologist Dr. Kyusang Lee, who last saw Plaintiff in October 2014 (Tr. 648), “has done well since then” (Tr. 471). In 1996, Plaintiff was formally diagnosed with systemic lupus and started working part-time because of her fatigue. (Tr. 623.) On May 9, 2005, Plaintiff visited Dr. Lee who stated that Plaintiff “rarely gets myoclonic seizures (about once a month if she is fatigued). She denies any other types of seizures.” (Id.) Dr. Lee noted that Plaintiff, in relevant part, denied focal weakness, numbness, unsteady gait, “persistent joint pains”, “persistent rash”, depression, or anxiety. (Tr. 472.) Her mental status and motor exams were normal, with Plaintiff demonstrating “5/5 strength throughout.” (Id.) Plaintiff saw Dr. Lee again on December 20, 2006; Plaintiff reported that her seizures, epilepsy, and migraines were under control. (Tr. 469.) On September 8, 2008, Plaintiff again saw Dr. Lee. Her migraines were stable although she “experience[d] them cyclically, about every 6-8 weeks” and they were “diffuse and severe.” (Tr. 467.) Her exam was otherwise unremarkable and her strength was 5/5 throughout. (Id.)

         On April 22, 2010, Plaintiff was laid off due to her employer's bankruptcy. (Tr. 353.) On September 13, 2010, Plaintiff visited Dr. Lee again. Her migraines continued to be stable and no other problems were reported. (Tr. 465.) On July 14, 2011, Plaintiff visited dermatologist Dr. Diana Sun for blisters on her hands that she had had for three weeks. (Tr. 503.) Plaintiff visited Dr. Sun again on July 18, 2011 for her blisters, which were “itching” and “bleeding.” (Tr. 504.) She was diagnosed with eczema and prescribed ointment and told to use rubber gloves. (Id.) On August 25, 2011, Dr. Sun diagnosed Plaintiff with porphyria cutanea tarda[4] (Tr. 459-60) and bulbous dermatitis (Tr. 505). On September 1, 2011, Plaintiff returned to Dr. Lee because she was getting new blisters. (Tr. 507.) On September 28, 2011, Plaintiff visited her gynecologist, Dr. Salvatore Ancona, who found that Plaintiff had no “rashes, new or changed lesions, bruising, or itching.” (Tr. 544.) Dr. Ancona also found no psychiatric history. (Tr. 576.)

         Plaintiff alleges that her disability began on October 1, 2011. On October 10, 2011, Plaintiff had a follow-up appointment with Dr. Lee due to “healing blisters on both hands”. (Tr. 463.) Plaintiff's exam was otherwise normal, and Dr. Lee told her to follow up in a year. (Id.) On October 26, 2011, Plaintiff visited rheumatologist Dr. Harry Fischer. He reported that Plaintiff “denied any joint pain” and “ha[d] no tenderness or swelling of any joints.” (Tr. 552.) Plaintiff's skin did “reveal some healed areas on her hands, but no active blistering lesions.” (Id.)

         On October 28, 2011, Plaintiff submitted a Function Report in connection with her disability claim. She stated that she had scabs on her hands due to porphyria, which made it difficult to wash dishes and her hands, bathe, and carry groceries. (Tr. 340-41.) She further stated that it was difficult for her to do heavy lifting and that she could not squat or kneel. (Tr. 344-45.) Additionally, she noted that she got shortness of breath while climbing stairs and could only walk about three blocks before needing to rest. (Tr. 345-46.) Finally, she wrote that she “intermittently” had stiff and aching joints that lasted between two weeks and a month. (Tr. 347-48.)

         On November 8, 2011, Dr. Fischer reported that Plaintiff “[was] doing well” and that Plaintiff “thinks maybe the lesions are less, maybe less blistering since being discontinued from being on chlorthalidone.” (Tr. 554.) She had “some small blistering skin lesions on her hands, but no other rashes”, joint pain, or swelling, and her pain level was 0 out of 10. (Id.)

         On November 12, 2011, Dr. Sun submitted a Disability Report in connection with Plaintiff's DIB application. (Tr. 522.) She noted that she had been seeing Plaintiff monthly since July 2011 for her porphyria and that Plaintiff “had residual superficial erosions and crusts, but no further blisters” since her last visit. (Tr. 523.) She stated that Plaintiff's prognosis was “uncertain presently” and that her work “may be limited by the erosions or blisters that occurs on her skin.” (Id.)

         On November 17, 2011, Plaintiff's nephrologist, Dr. Alan Dubrow, submitted a Disability Report in connection with Plaintiff's DIB application. Dr. Dubrow stated that he first saw Plaintiff in February 2006 and saw her every three to six months. (Tr. 527.) He noted that her diagnoses were: diffuse proliferative lupus nephritis, [5] hypertension, creatinine clearance, and porphyria cutanea tarda. (Tr. 527.) He stated that her symptoms included: occasional dizziness, skin rash with blisters on her fingers, musculoskeletal back pain with exertion, and “[e]arly fatiguability”. (Tr. 527, 529.) He found that her prognosis was “slow progression over time”. (Tr. 528.)

         On May 3, 2012, Dr. Sun submitted a Disability Report in connection with Plaintiff's DIB application.[6] She stated that she saw Plaintiff every two to four weeks since July 2011. (Tr. 592.) She stated that Plaintiff's diagnosis was bullous disease[7] and systemic lupus erythematosus[8]. (Id.) She noted that Plaintiff had skin lesions on her left and right hands that have persisted for at least three months despite treatment. (Tr. 592-93.) Furthermore, she stated that Plaintiff had flare-ups of “bleeding, itching, pain[, ] swelling” in her hands and fingers (Tr. 594) “every two weeks” that took “1.5 weeks” to resolve (Tr. 593). Dr. Sun concluded that Plaintiff's prognosis was “[p]oor. Bullous disease is a chronic condition. It was initially thought to be related to one of her medications, but the lesions persist despite discontinuing the alleged offending medication.” (Tr. 592.)

         On June 19, 2012, Dr. Kenneth Glass of the Dallas Disability Process Unit submitted a Case Analysis. He stated that he agreed with the first ALJ decision that “[t]he claimant's impairments do not limit [her] ability to engage basic physical demands of simple work on a sustained basis despite the limitations resulting from [her] impairments. A fully favorable determination[9] is not supported. However, without any additional information the evidence does not support a reduced RFC. A fully favorable decision cannot be made at this time.” (Tr. 538.) On July 19, 2012, Plaintiff had an appointment with Dr. Fischer. He noted that Plaintiff ...

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