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Kelly C. v. Commissioner of Social Security

United States District Court, D. Vermont

November 19, 2014

KELLY C. (MAGINNIS) MILLARD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION AND ORDER (Docs. 12 & 16)

GEOFFREY W. CRAWFORD, District Judge.

Plaintiff Kelly C. (Maginnis) Millard[1] requests review and remand of the decision of the Commissioner of Social Security denying her application for disability insurance benefits. See 42 U.S.C. § 405(g). Pending before the court are Millard's motion to reverse the Commissioner's decision (Doc. 12) and the Commissioner's motion to affirm the decision (Doc. 16).

I. Background

Millard was thirty-four years old on her alleged disability onset date of June 17, 2000. She has earned her GED and completed courses in advanced typing and data entry. She has work experience as a sales clerk at a lumberyard, a kitchen helper at an assisted-living facility, and an animal caregiver at a dog kennel. She has two children, who were no longer in her custody as of July 2009. (AR 62-63.) She volunteers approximately one hour a week as a substance abuse recovery coach in her community. (AR 821.)

On June 15, 2000, Millard was involved in a motorcycle accident that resulted in serious injuries to her right ankle and back (AR 411-13.) X-rays showed that she sustained an open tibia fracture and an open markedly comminuted distal fibula fracture, as well as a spinal fracture at T9-T10. (AR 411, 426, 472-73.) She underwent emergency surgery for the ankle fracture. (AR 415-16). Over the years since the accident, Millard has received treatment for chronic ankle and back pain. (AR 17.)

In addition to her ankle and back pain, Millard has hearing problems and asthma. (AR 63.) She has been diagnosed with panic attacks with agoraphobia and major depressive disorder. (AR580).

Millard has also been diagnosed with cocaine abuse in full remission. ( Id. ) The record shows that she used cocaine in 2004 and 2005, and sold cocaine in 2006. (AR 63.) She was eventually arrested for the sale of cocaine and was incarcerated from May 20, 2008 until October 2, 2009. She worked part-time at the prison's print shop using machines to print papers, invitations, and business cards. ( Id. )

On February 20, 2008, Millard applied for social security disability insurance and supplemental security insurance. Both her initial application and her request for reconsideration were denied. Following a hearing in July 2010, Administrative Law Judge (ALJ) Ruth Kleinfeld ruled on October 6, 2010 that Millard was not disabled. Millard appealed to this court, which remanded the case for another hearing on the grounds that substantial evidence did not support portions of the ALJ's assessment of the medical opinions and her residual functional capacity determination. (AR 80.)

On June 18, 2012, Millard filed a new application for supplemental security income alleging an onset date of October 7, 2010. Her application was denied initially and on reconsideration. Her 2012 claim was consolidated with the prior claim. ALJ Kleinfeld conducted a hearing on May 22, 2013. (AR 813.) On July 26, 2013, she again ruled that Millard was not disabled. (AR 31.) Having exhausted her administrative remedies, Millard filed her complaint with this court on September 26, 2013. (Doc. 3.)

II. The ALJ's Decision

The Commissioner uses a five-step sequential process to decide whether an individual is disabled. See Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). At the first step, the ALJ determines if the individual is engaged in "substantial gainful activity." 20 C.F.R. §§ 404. 1520(a)(4)(i); 416.920(a)(4)(i). If not, the ALJ then considers whether the individual has a severe medically determinable physical or mental impairment or combination of impairments that has lasted or is expected to last continuously for at least twelve months. Id. §§ 404.1520(a)(4)(ii); 416.909; 416.920(a)(4)(ii). At the third step, the ALJ considers whether the individual has an impairment that "meets or equals" an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix I Id. §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). An individual is presumed to be disabled if he or she has a listed impairment. Id. ; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).

If the individual is not presumptively disabled, the ALJ then considers the individual's residual functional capacity (RFC), which means the most work the claimant can still do despite her impairments based on all the relevant medical and other evidence in the record, and whether the individual can still perform his or her past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv); 404. 1545(a); 416.920(a)(4)(iv). Finally, the ALJ considers whether the individual can perform "any other work." Id. §§ 404. 1520(a)(4)(v), (g); 416.920(a)(4)(v), (g). The claimant bears the burden of proof at steps one through four. Butts, 388 F.3d at 380-81. At step five, there is "a limited burden shift to the Commissioner, " requiring her to show only "that there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).

Applying this framework, the ALJ first determined that Millard had not engaged in substantial gainful activity since June 17, 2000. The ALJ next determined that Millard had the following severe impairments: "osteoarthritis right ankle sip fractures with post-traumatic arthritis; mechanical back pain sip thoracic (T9/T10) spine fracture; anxiety disorder; affective disorder (variously diagnosed); and substance abuse disorder (cocaine) in sustained remission." (AR 17.) The ALJ found that although Millard had mild bilateral hearing loss requiring hearing aids and had received some treatment for asthma and headaches, these impairments did not result in significant functional limitations and were therefore nonsevere. (AR 18.) The ALJ also found a lack of evidence to support the consultative psychological examiner's hypothesis that some of Millard's symptoms might be caused by attention deficit hyperactivity disorder. ( Id. )

Proceeding to the third step, the ALJ determined that Millard's impairments did not meet or medically equal the severity of a listed impairment. Specifically, the ALJ determined that Millard did not meet the criteria for listings 1.02 (major dysfunction of a joint), 1.04 (disorders of the spine), 12.04 (affective disorders), 12.06 (anxiety related disorders) or 12.09 (substance addiction disorders). (AR 18-22.)

The ALJ then determined that Millard had the RFC to perform sedentary work but that she must be able to alternate positions at will from sitting to standing. Millard was unable to climb ladders, ropes and scaffolds, but could climb stairs and ramps occasionally and perform occasional postural activity as well as occasional pushing and pulling with her right lower extremity. The ALJ stated that Millard must avoid concentrated exposure to extreme cold and even moderate exposure to hazards. She could perform simple, routine tasks. (AR 22-29.)

The ALJ found that Millard was unable to perform past relevant work because it exceeded her RFC. (AR 29.) Based on the vocational expert's testimony at the hearing, the ALJ determined that Millard was capable of performing jobs that exist in significant numbers in the national and local economy, including document preparer, addresser, and surveillance system monitor. (AR 30.) She concluded that Millard had not been disabled from the alleged onset date through the date of her decision. (AR 31.)

III. Standard of Review

This court reviews the administrative record de novo to determine whether the Commissioner's decision is supported by "substantial evidence" and uses the correct legal standard. Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002); see also 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Poupore, 566 F.3d at 305 (quoting Consolo Edison CO. v. NLRB, 305 U.S. 197, 229 (1938)). Where there is substantial evidence to support either position, the determination is one to be made by the factfinder. Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). In reviewing a decision of the Commissioner, this court must be mindful of the remedial purpose of the Social Security Act. Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).

IV. Analysis

Millard argues that the ALJ did not correctly weigh the opinion evidence, and therefore improperly concluded that Millard's right ankle impairment did not meet listing 1.02 and failed to properly consider whether her mental impairments met a listed impairment. She also argues that neither the ALJ's RFC assessment nor ...


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