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Bashaw v. Commissioner of Social Security

United States District Court, D. Vermont

May 16, 2014

Gary Paul Bashaw, Plaintiff,
Commissioner of Social Security, Defendant.

OPINION AND ORDER (Docs. 16, 19)

JOHN M. CONROY, Magistrate Judge.

Plaintiff Gary Paul Bashaw 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 disability insurance benefits. Pending before the Court are Bashaw's motion to reverse the Commissioner's decision (Doc. 16), and the Commissioner's motion to affirm the same (Doc. 19). For the reasons stated below, the Court DENIES Bashaw's motion, and GRANTS the Commissioner's motion.


Bashaw was 48 years old on his alleged disability onset date of May 1, 2008. He has a GED, and has worked as a carpenter, a stage manager/coordinator, and a painter supervisor. He is divorced and has a child who does not live with him. (AR 759.) On the date of the administrative hearing, he was living with his sister and brother-in-law. (AR 35.)

Bashaw suffers from chronic neck and back pain, as well as pain radiating through his shoulders and into his upper arms, elbows, and hands. He also has occasional numbness in his hands and fourth and fifth fingers. He has been diagnosed with cervical degenerative disc disease, bilateral carpel tunnel syndrome ("CTS"), and bilateral cubital tunnel syndrome. (AR 567, 657, 784.) He has also been diagnosed with alcohol dependence and an opioid-related disorder, and tested positive for cocaine during the alleged disability period, resulting in his discharge from at least one medical practice. (AR 764-65, 811, 917.) Since 2008, Bashaw has had surgeries on both wrists and both elbows, epidural injections, splints, physical therapy, and chiropractic treatment. He has also been prescribed numerous medications including narcotics such as oxycodone, Percocet, and fentanyl. Bashaw claims that none of these treatments or medications has relieved his pain or increased his mobility on a long-term basis.

In March 2010, Bashaw protectively filed applications for social security income and disability insurance benefits. Therein, he alleges that, starting on May 1, 2007, he has been unable to work due to neck and upper shoulder pain, causing limited mobility including an inability to lift his arms overhead. (AR 251.) He also claims to have sleeping problems due to arm numbness. ( Id. ) Bashaw's disability application was denied initially and upon reconsideration, and he timely requested an administrative hearing, which was conducted on February 22, 2012 by Administrative Law Judge ("ALJ") Paul Martin. (AR 27-69.) Bashaw appeared and testified, and was represented by a non-attorney representative, who amended the alleged disability onset date to May 1, 2008. (AR 31.) A vocational expert ("VE") also testified at the hearing.

On March 30, 2012, the ALJ issued a decision finding that, based on his March 2010 disability application, Bashaw was not disabled under the Social Security Act. (AR 9-19.) Thereafter, the Appeals Council denied Bashaw's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Having exhausted his administrative remedies, Bashaw filed the Complaint in this action on April 22, 2014. (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 Martin first determined that, although Bashaw had worked on a seasonal basis as a stage manager for Champlain Valley Exposition, given the "short duration" of that work, he had not engaged in substantial gainful activity since his alleged disability onset date of May 1, 2008. (AR 12.) At step two, the ALJ found that Bashaw had the severe impairments of cervical degenerative disc disease, CTS, and cubital tunnel syndrome. ( Id. ) Conversely, the ALJ found that Bashaw's hypertension was non-severe. ( Id. ) At step three, the ALJ found that none of Bashaw's impairments, alone or in combination, met or medically equaled a listed impairment. ( Id. ) Next, the ALJ determined that Bashaw had the RFC to perform light work, as defined in 20 C.F.R. § 404.1567(b), except as follows:

[Bashaw] may occasionally lift and carry twenty pounds and frequently lift and carry ten pounds; sit, stand, and walk up to six hours each in an eight-hour day; occasionally climb ladders and frequently climb stairs and ramps, balance, stoop, kneel, crouch, and crawl; only occasionally reach overhead bilaterally; and handle objects on a frequent but not constant basis.

(AR 13.) Given this RFC, the ALJ found that Bashaw was unable to perform his past relevant work as a carpenter, a stage manager/coordinator, a clerical helper, or a painter supervisor. (AR 17-18.) Based on testimony from the VE, however, the ALJ determined that Bashaw could perform other jobs existing in significant numbers in the national economy, including representative occupations such as order caller, dispatcher, and ...

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