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Savage v. Commissioner of Social Security

United States District Court, D. Vermont

February 24, 2014

Tammy L. Savage, Plaintiff,
Commissioner of Social Security, Defendant.


JOHN M. CONROY, Magistrate Judge.

Plaintiff Tammy Savage brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, requesting review and remand of the decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits. Pending before the Court are Savage's motion to reverse the Commissioner's decision (Doc. 9), and the Commissioner's motion to affirm the same (Doc. 12). For the reasons stated below, the Court DENIES Savage's motion, and GRANTS the Commissioner's motion.


Savage was 34 years old on her alleged disability onset date of December 5, 2007. She completed school through the tenth grade. She has worked as a nurse's aide and a cleaner. She is a single mother with three children. During the alleged disability period, she was a homemaker, living with her children and, at times, her boyfriend as well.

In December 2007, Savage slid and fell down some icy steps, resulting in severe back pain radiating down her leg. Since then, she has had chronic hip, buttock, leg, and lower back pain. She gained approximately 80 pounds after the fall, and is described in the medical record as being morbidly obese, weighing approximately 300 pounds at five feet, two inches tall. (AR 839, 876.) Savage also has pain in her left elbow and wrist, bilateral carpal tunnel syndrome ("CTS"), and sleeping problems. She takes Vicodin for her pain, and has tried multiple therapies to relieve her symptoms, including physical therapy, pool therapy, and injection therapy. Each method either did not relieve her symptoms or caused undesirable side effects. Savage's obesity exacerbates her symptoms; thus, her medical providers have recommended that she lose weight and regularly exercise. Although she has made attempts to follow these recommendations, she has been unsuccessful at sustaining a diet or exercise program. Aside from her physical problems, Savage has had anxiety since her father died in approximately 2005.

On January 5, 2010, Savage protectively filed applications for social security income and disability insurance benefits. In her disability application, she alleged that, starting on December 5, 2007, she has been unable to work due to lower back, thigh, and hip pain. (AR 186.) She testified at the administrative hearing that she also has pain in her sciatic nerve and right arm. (AR 45.) She further testified that, as a result of her pain, she can sit for only 20-30 minutes at a time, and she cannot use a computer. (AR 47-48.) Savage's application was denied initially and upon reconsideration, and she timely requested an administrative hearing. The hearing was conducted on July 26, 2011 by Administrative Law Judge ("ALJ") Dory Sutker. (AR 35-77.) Savage appeared and testified, and was represented by an attorney. A vocational expert ("VE") also testified at the hearing. On August 9, 2011, the ALJ issued a decision finding that Savage was not disabled under the Social Security Act at any time from her alleged onset date through the date of the decision. (AR 19-29.) Thereafter, the Appeals Council denied Savage's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-4.) Having exhausted her administrative remedies, Savage filed the Complaint in this action on May 16, 2013. (Doc. 1.)

ALJ Decision

The Commissioner uses a five-step sequential process to evaluate disability claims. See Butts v. Barnhart , 388 F.3d 377, 380-81 (2d Cir. 2004). The first step requires the ALJ to determine whether the claimant is presently engaging in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so engaged, step two requires the ALJ to determine whether the claimant has a "severe impairment." 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant has a severe impairment, the third step requires the ALJ to make a determination as to whether that impairment "meets or equals" an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"). 20 C.F.R. §§ 404.1520(d), 416.920(d). The claimant is presumptively disabled if his or her impairment meets or equals a listed impairment. Ferraris v. Heckler , 728 F.2d 582, 584 (2d Cir. 1984).

If the claimant is not presumptively disabled, the ALJ is required to determine the claimant's residual functional capacity ("RFC"), which means the most the claimant can still do despite his or her mental and physical limitations based on all the relevant medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). The fourth step requires the ALJ to consider whether the claimant's RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). Finally, at the fifth step, the ALJ determines whether the claimant can do "any other work." 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant bears the burden of proving his or her case at steps one through four, Butts , 388 F.3d at 383; and at step five, there is a "limited burden shift to the Commissioner" to "show that there is work in the national economy that the claimant can do, " Poupore v. Astrue , 566 F.3d 303, 306 (2d Cir. 2009) (clarifying that the burden shift to the Commissioner at step five is limited, and the Commissioner "need not provide additional evidence of the claimant's [RFC]").

Employing this sequential analysis, ALJ Sutker first determined that Savage had not engaged in substantial gainful activity since her alleged onset date of December 5, 2007. (AR 21.) At step two, the ALJ found that Savage had the following severe impairments: facet arthropathy of the lumbar spine, bilateral CTS, obesity, and tendonitis of the gluteus medius tendon and mild epicondylitis of the left elbow. ( Id. ) Conversely, the ALJ found that Savage's right shoulder tendonitis and anxiety were non-severe. (AR 22-24.) At step three, the ALJ found that none of Savage's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 24.) Next, the ALJ determined that Savage had the RFC to perform light work, as defined in 20 C.F.R. § 404.1567(b), except that she "should never climb ladders, ropes[, ] or scaffolds[;]... should avoid concentrated exposure to vibrations and hazards[;]... [and] can frequently handle and finger." ( Id. ) Given this RFC, the ALJ found that Savage was unable to perform her past relevant work as a nurse's assistant or a cleaner. (AR 27.) Finally, based on testimony from the VE, the ALJ determined that Savage could perform other jobs existing in significant numbers in the national economy. (AR 28.) The ALJ concluded that Savage had not been under a disability from the alleged onset date of December 5, 2007 through the date of the decision. (AR 29.)

Standard of Review

The Social Security Act defines the term "disability" as the "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 person will be found disabled only if it is determined that his "impairments are 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).

In considering a Commissioner's disability decision, the court "review[s] the administrative record de novo to determine whether there is substantial evidence supporting the... decision and whether the Commissioner applied the correct legal standard." Machadio v. Apfel , 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater , 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court's factual review of the Commissioner's decision is thus limited to determining whether "substantial evidence" exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v. Sullivan , 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan , 904 F.2d 122, 126 (2d Cir. 1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the fact[-]finder."). "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. Richardson v. Perales , 402 ...

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