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Aversa v. Saul

United States District Court, E.D. New York

January 7, 2020

ANDREW SAUL,[1] Commissioner of Social Security, Defendant.



         Plaintiff Donald Aversa commenced this action under 42 U.S.C. § 405(g), seeking judicial review of the decision of the Commissioner of the Social Security Administration (“SSA”) that denied his claim for Disability Insurance Benefits (“DIB”). Before the Court are the parties' cross-motions for judgment on the pleadings or summary judgment. (Dkts. 10, 13.) For the reasons set forth below, the Court grants Plaintiff's motion for summary judgment and denies the Commissioner's cross-motion for judgment on the pleadings. This case is remanded for further proceedings consistent with this Memorandum & Order.


         I. Procedural History

         On March 16, 2015, Plaintiff filed an application for DIB, in which he alleged he had been disabled as of May 25, 2012. (Administrative Transcript (“Tr.”), Dkt. 8, at 196.) His application was denied. (Id. at 124-27.) After requesting a hearing (id. at 136), Plaintiff appeared before Administrative Law Judge Michael Carr (the “ALJ”) on August 15, 2017 (id. at 15, 26). In a decision dated November 28, 2017, the ALJ determined that Plaintiff was not disabled and was therefore not entitled to DIB. (Id. at 15-26.) Thereafter, Plaintiff requested review of the ALJ's decision, and the SSA declined that request on October 11, 2018. (Id. at 1-5.) Plaintiff timely[2]filed the instant action. (See generally Complaint, Dkt. 1.)

         II. The ALJ Decision

         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 of the inquiry; the Commissioner bears the burden in the final step. Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). 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 answer is no, 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 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. In this case, the ALJ found that Plaintiff had not engaged in substantial gainful activity since May 25, 2012, and that Plaintiff suffered from the following severe impairments: “mild degenerative disc disease[3] of the lumbar spine, asthma, [4] chronic obstructive pulmonary disease (COPD), [5] emphysema, [6] gastroesophageal reflux disease (GERD), [7] sinusitis, [8] and sleep disorder.” (Tr. at 18.)

         Having determined that Plaintiff satisfied his burden at the first two steps, the ALJ proceeded to the third step, at which the ALJ considers whether any of the claimant's impairments meet or equal the severity of one of the impairments listed in the Social Security Act's regulations (the “Listings”). 20 CFR § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1. In this case, the ALJ concluded that none of Plaintiff's impairments met or medically equaled the severity of any of the impairments in the Listings. (Tr. at 18.) Moving on to the fourth step, the ALJ found that Plaintiff had the residual functional capacity (“RFC”)[9] to perform “light work” as defined in 20 C.F.R. § 404.1567(b).[10] (Id. at 20.) Qualifying his RFC determination, the ALJ noted that Plaintiff “can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl[;] . . . cannot climb ladders, ropes, and scaffolds[;] . . . can tolerate occasional exposure to fumes, odors, dust, gases, and other pulmonary irritants[;] . . . can tolerate occasional exposure to extreme cold and extreme heat.” (Id.)

         Relying on his RFC finding from step four, the ALJ determined that Plaintiff was unable to perform any of his past relevant work as a firefighter and tractor trailer truck driver. (Id. at 24.) The ALJ then proceeded to step five. At step five, the ALJ must determine whether the claimant- given his 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). In this case, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff was capable of performing, namely: (1) mail clerk, which has an availability of 45, 000 jobs; (2) marker, [11] which has an availability of 67, 000 jobs; and (3) garment sorter, which has an availability of 54, 000 jobs. (Tr. at 25.)


         Unsuccessful claimants for disability benefits under the Social Security 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, 697 F.3d at 151 (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) (quotations and brackets 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, the Court “defer[s] to the Commissioner's resolution of conflicting evidence.” Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012). 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).


         Plaintiff argues that the ALJ erred by (1) applying an improper legal standard at the second step; (2) failing to obtain a medical expert opinion to determine whether the combined effect of all of Plaintiff's impairments meets or equals the severity of those impairments in the Listings; and (3) failing to recontact the treating physician and to accord proper weight to the treating physician's opinions. The Court addresses each argument in turn.

         I. Combination of All Impairments at the Second Step

         Plaintiff argues that the ALJ applied an incorrect legal standard at the second step of the required analysis-i.e., determining whether Plaintiff suffered from a “severe impairment, ” 20 C.F.R. § 404.1520(a)(4)(ii)-and failed to consider the combination of all of Plaintiff's impairments and particularly his diaphragmatic hernia, diverticulosis, and internal hemorrhoids.[12]The Court disagrees.

         “Where an ALJ excludes certain impairments from the list of severe impairments at the second step, any such error is harmless where the ALJ identifies other severe impairments such that the analysis proceeds and the ALJ considers the effects of the omitted impairments during subsequent steps.” Calixte v. Colvin, No. 14-CV-5654 (MKB), 2016 WL 1306533, at *23 (E.D.N.Y. Mar. 31, 2016). “Nevertheless, where an ALJ's exclusion of an impairment from the list of severe impairments is not supported by substantial evidence, and the ALJ fails to account for functional limitations associated with the excluded impairment in determining the claimant's RFC, remand for further administrative proceeding is appropriate.” Fontanez v. Colvin, No. 16-CV-1300 (PKC), 2017 WL 4334127, at *15 (E.D.N.Y. Sept. 28, 2017).

         The Court finds no reversible error with regard to the ALJ's assessment of Plaintiff's impairments. The ALJ identified other severe impairments at the second step and proceeded through the sequential evaluation process. Although the ALJ did not mention Plaintiff's diaphragmatic hernia at the second step, the ALJ indicated at the fourth step that he considered “all symptoms” and specifically discussed the esophagus duodenoscopy that revealed the diaphragmatic hernia. (Tr. at 20-21.) Therefore, any error in failing to list the diaphragmatic hernia as a severe impairment at the second step was harmless. See Stanton v. Astrue, 370 Fed.Appx. 231, 233 n.1 (2d Cir. 2010) (summary order) (finding remand unwarranted when the ALJ made clear that for the fourth step, he considered the ‚Äúcombination of impairments‚ÄĚ and the ...

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