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Burdick v. Commissioner of Social Security

United States District Court, D. Vermont

May 15, 2014

William E. Burdick, Sr., Plaintiff,
Commissioner of Social Security, Defendant.


JOHN M. CONROY, Magistrate Judge.

Plaintiff William E. Burdick, Sr., 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 his application for supplemental security income ("SSI"). Pending before the Court are Burdick's motion to reverse the Commissioner's decision (Doc. 13), and the Commissioner's motion to affirm the same (Doc. 18). For the reasons stated below, I recommend that Burdick's motion be GRANTED, the Commissioner's motion be DENIED, and the matter be REMANDED for further proceedings and a new decision.


Burdick was 43 years old on his alleged disability onset date of June 7, 2007. He had a difficult time in school due to learning disabilities and behavioral problems, dropping out in the ninth grade after skipping two grades. He has experience working as a construction worker, a warehouse worker, and an assembly line worker. He also served as a handyman at an inn in exchange for a place to stay, which involved cleaning rooms, changing electrical boxes, doing minor maintenance work, answering phones, collecting rent, and doing other odd jobs. (AR 181, 346, 349.)

Burdick is divorced and has three adult children and one non-custodial child who was approximately 10 years old on the alleged disability onset date. He is largely estranged from his family, and has no friends. (AR 289.) Yet his mother, one of his sisters, and his adult daughter and son-in-law sometimes help support him financially and otherwise. (AR 278, 289, 345-48.) During the alleged disability period, his living arrangements varied: he lived with his daughter and her family, rented a room from a friend, and stayed at the inn where he worked in exchange for paying rent. (AR 51, 278, 348.) He was incarcerated in 2007 for domestic violence, and then again in 2009 due to a positive urinalysis drug test while on probation. (AR 289, 347.)

Starting at age 17, Burdick has had back pain. When he was 18, he was hit in the head with a wood lathe at work. (AR 346.) At around age 20, he tore his rotator cuff while working. ( Id. ; AR 43.) Due to back pain, Burdick claims he cannot sit for more than 10-15 minutes at a time and cannot walk long distances. (AR 39, 41.) He also claims to have difficulty lifting and reaching due to shoulder pain. (AR 43, 48.) He takes naps during the day because pain disrupts his nighttime sleep. (AR 45-46.) In addition to his physical impairments, Burdick also suffers from anxiety and depression. (AR 290.) He has been diagnosed with adjustment disorder with mixed anxiety and depressed mood, chronic attention deficit/hyperactivity disorder, personality disorder with paranoid and antisocial features, and borderline intellectual functioning. (AR 291.) On a typical day, he sits at home watching television and playing cards or other games with visitors including his daughter, and goes to medical and other appointments. (AR 31-32, 38.)

In October 2010, Burdick filed an application for SSI, alleging that, as of July 15, 2005, he could not work due to a learning disability, illiteracy, back and neck pain, leg numbness, shoulder pain caused by a torn rotator cuff, asthma, hand pain and numbness, knee pain, poor eyesight, and arthritis. (AR 159-67, 197, 201.) Burdick's application was denied initially and upon reconsideration, and he timely requested an administrative hearing. The hearing was conducted on February 6, 2012 by Administrative Law Judge ("ALJ") Thomas Merrill. (AR 25-67.) Burdick testified, and was represented by an attorney. A vocational expert ("VE") also testified. At the hearing, Burdick amended his alleged disability onset date to June 7, 2007. (AR 28.) On March 26, 2012, the ALJ issued a decision finding that Burdick was not disabled under the Social Security Act since October 11, 2010, the date his SSI application was filed. (AR 8-19.) Thereafter, the Appeals Council denied Burdick's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Having exhausted his administrative remedies, Burdick filed the Complaint in this action on June 27, 2013. (Doc. 3.)

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 Merrill first determined that Burdick had not engaged in substantial gainful activity since October 11, 2010, the application date. (AR 10.) At step two, the ALJ found that Burdick had the following severe impairments: minimal degenerative disc disease of the lumbar spine, learning disability, and an affective disorder. ( Id. ) Conversely, the ALJ found that Burdick's emphysema, vision problems, rotator cuff injury, wrist pain, and carpal tunnel syndrome were all non-severe impairments; and that Burdick's leg/arm/hand trembling was not a medically determinable impairment. (AR 10-11.) At step three, the ALJ found that none of Burdick's impairments, alone or in combination, met or medically equaled a listed impairment, including Listing 1.04 for spine disorders, Listing 12.04B for affective disorders, and Listing 12.02 for learning disorders. (AR 11-12.)

Next, the ALJ determined that Burdick had the RFC to perform "work in the light exertional range, " as defined in 20 C.F.R. § 416.967(b), with the following exceptions: "[H]e can understand, remember[, ] and carry out 1-3 step tasks; may need extra hands-on demonstration but not outside the tolerance of a competitive work setting; and has sufficient concentration, persistence[, ] and pace to sustain work activities for two[-]hour blocks of time throughout a normal work day and work week." (AR 13.) Given this RFC, the ALJ found that Burdick was unable to perform any past relevant work. (AR 17.) Based on the VE's testimony, however, the ALJ found that Burdick could perform other jobs existing in significant numbers in the national economy, including the jobs of cleaner, cafeteria attendant, and laundry worker. (AR 17-18.) The ALJ concluded that Burdick had not been disabled since the date his application was filed. (AR 18.)

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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