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Shepard v. Commissioner of Social Security

United States District Court, D. Vermont

May 7, 2014

Donald R. Shepard, Plaintiff,
Commissioner of Social Security, Defendant.


JOHN M. CONROY, Magistrate Judge.

Plaintiff Donald Shepard 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") finding that he was not disabled and not entitled to Supplemental Security Income ("SSI"). Pending before the Court are Shepard's motion to reverse the Commissioner's decision (Doc. 8), and the Commissioner's motion to affirm the same (Doc. 11). For the reasons stated below, the Court DENIES Shepard's motion, and GRANTS the Commissioner's motion.


Shepard was 40 years old on his initial alleged disability onset date of June 21, 2008. His work history is in the construction field, but he has not worked since 2001. (AR 178, 559, 875.) In October of that year, he left his job operating heavy construction equipment after he was injured in a motorcycle accident. (AR 875.)

Shepard had behavioral problems in school and dropped out in the tenth grade. (AR 559, 875.) He later attained a GED while incarcerated. (AR 559.) During the alleged disability period, Shepard resided either with friends, his brother and his family, or by himself in a camper. (AR 36, 559, 587, 875.) He is divorced, and has two children who were approximately ages 15 and 21 during the alleged disability period and resided out of state with their mother. (AR 559, 587, 874-75.) He has a history of alcohol and cocaine dependence starting at age 17. (AR 559, 875.) A number of legal charges have been filed against him, and he has served approximately 15 years in prison altogether, starting at age 15, for charges including domestic assault, theft of a vehicle, driving without a license, serving alcohol to minors, and driving while intoxicated. ( Id. )

Shepard suffers from numerous medical problems mostly arising from two motorcycle accidents, the first in October 2001 and the second in June 2008. Those medical problems include chronic knee pain, pain in his left arm/shoulder, and difficulty thinking/remembering. (AR 524, 558.) In the 2008 accident, Shepard sustained multiple fractures, requiring surgeries on his shoulder, left elbow, left jaw, and right lower leg; leaving him with hardware in his left elbow and right leg. (AR 210-11, 649, 666-68, 837.) He also suffers from depression, largely due to his inability to function like he could before the accident. (AR 878.) He testified at the administrative hearing that he cannot walk for long distances or stand for extended periods but is able to sit for 45-60 minutes at a time. (AR 40-42.)

In July 2008, Shepard filed applications for SSI and Disability Insurance Benefits ("DIB"), alleging disability starting on June 21, 2008, the date of his second motorcycle accident. (AR 129.) His DIB claim was denied because he failed to meet the insured status requirements. ( Id. ) The SSI claim was adjudicated and allowed on January 15, 2009 due to a severe impairment plus vocational factors, but it was denied on January 27, 2009 either for failure to cooperate or failure to give permission to contact financial institutions. (AR 130.) Shepard did not appeal those decisions regarding his 2008 claim (referred to herein as "the prior claim").

In September 2009, Shepard filed another SSI application, alleging disability due to chronic knee pain, memory problems, difficulty sleeping, standing and walking limitations, and myodysplasia syndrome causing joint soreness and stiffness. (AR 53, 119-24, 153.) This application was denied initially and upon reconsideration, and Shepard timely requested an administrative hearing. The hearing was conducted on November 10, 2011 by Administrative Law Judge ("ALJ") James D'Alessandro. (AR 28-44.) Shepard appeared and testified, and was represented by an attorney. On November 23, 2011, the ALJ issued a decision finding that Shepard was not disabled since September 1, 2009, the date his application was filed. (AR 15-22.) Thereafter, the Appeals Council denied Shepard's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Having exhausted his administrative remedies, Shepard filed the Complaint in this action on June 10, 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 D'Alessandro first determined that Shepard had not engaged in substantial gainful activity since his application date of September 1, 2009. (AR 17.) At step two, the ALJ found that Shepard had the severe impairment of status post fracture of upper and lower limbs. ( Id. ) Conversely, the ALJ found that Shepard's depression was non-severe, given that it did not have more than a minimal effect on Shepard's ability to do basic physical or mental work activities. (AR 17-18.) At step three, the ALJ found that none of Shepard's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 18.) Next, the ALJ determined that Shepard had the RFC to perform the full range of sedentary work, as defined in 20 C.F.R. § 416.967(a). ( Id. ) Given this RFC, the ALJ found that, although Shepard was unable to perform his past relevant work, he could perform other jobs existing in significant numbers in the national economy. (AR 21-22.) The ALJ concluded that Shepard had not been under a disability since September 1, 2009, the date his application was filed. (AR 22.)

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, ...

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