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Betourney-Pavao v. Commissioner of Social Security

United States District Court, D. Vermont

December 8, 2014


OPINION AND ORDER (Does. 9 & 11)


Hugh Mandly died on January 4, 2011 while his application for disability insurance benefits was pending. His minor son, Anthony Michael Betourney-Pavao, seeks reversal and remand of the Commissioner of Social Security's denial of Mandly's application for disability insurance benefits. See 42 U.S.C. § 405(g). Before the court are Betourney-Pavao's motion to reverse the Commissioner's decision (Doc. 9) and the Commissioner's motion to affirm the decision. (Doc. 11.)

I. Background

Mandly was fifty years old on his alleged disability onset date of December 1, 2008. He completed school through the ninth grade, and subsequently joined the military. He worked as a cashier, a warehouse worker, and a custodian at an elderly housing facility, and also held parttime jobs pumping gas and working as a school janitor. (AR 162.) Mandly lived with his exwife during most of the alleged disability period, although at times he lived with his mother-inlaw. (AR 149, 1706.) Mandly's son Betourney-Pavao was approximately five years old at the beginning of the alleged disability period. (AR 1818.) Mandly had another son who died in 1997 at the age of thirteen. (AR 579.)

Mandly suffered from numerous medical issues including lower back pain, left shoulder pain, chronic obstructive pulmonary disease (COPD), pulmonary hypertension and other cardiac problems, hepatitis C, and cirrhosis. Mandly also had a significant history of drug and alcohol abuse that resulted in numerous hospital admissions and stays at rehabilitation facilities. In October 2008, Mandly fractured his left clavicle after falling down some stairs. (AR 745.) In November 2008, Mandly underwent ankle surgery after he fell in his pool while intoxicated. (AR 327, 343.) In December 2008 and January 2009, Mandly was treated at Northwestern Medical Center (NMC) and Fletcher Allen Health Care (FAHC) on multiple occasions due to altered mental status, injuries resulting from falling while intoxicated, and cardiac arrest due to sepsis. (AR 425, 540, 663, 843, 848, 867.) In October 2009, he was admitted to NMC after he "took too many of his hydrocodone, Ativan and ibuprofen along with alcohol" and fell down the stairs headfirst. (AR 1544, 1557.) On November 25, 2009, Mandly underwent surgery to install a plate on his left clavicle, which had failed to heal properly. (AR 1308.) The surgery went well, but two days later, he was again admitted to the hospital after he fell while intoxicated and suffered multiple subdural hematomas and a brain hemorrhage. (AR 1421.) A few weeks later, his mother in law brought him to the hospital because she witnessed him overdose on his narcotic pain medication. (AR 1403.) In December 2010 he was admitted to NMC with increased lethargy and altered mental status. He was transferred to FAHC, where he died on January 4, 2011. His official cause of death was respiratory failure due to septic shock arising from end-stage liver disease. (AR 1835.)

II. Procedural History

In January 2009, Mandly filed an application for disability insurance benefits, alleging that he had been unable to work since March 24, 2007 due to chronic back pain and his heart condition which caused him fatigue and pain. (AR 112-13, 161.) He later alleged that his left clavicle was broken and that since February 2009, he became "very tired" and had to take a nap after standing and walking. (AR 205.) On August 23, 2010, Administrative Law Judge (ALJ) Thomas Merrill held a hearing at which Mandly amended his alleged onset date to December 1, 2008. (AR 1702.)

On October 21, 2010, All Merrill issued a decision finding that Mandly was not disabled from December 1, 2008 to the date of his decision. (AR 1667.) Mandly died on January 4, 2011, and his son appealed the decision to this court. Magistrate Judge Conroy reversed the ALJ decision on the grounds that the ALJ erroneously gave little weight to the opinion of Mandly's treating physician while giving great weight to the opinions of agency consultative examiners, and improperly found that Mandly's substance abuse was nonsevere. (AR 1682-93.)

The Appeals Council then vacated the ALJ's decision and remanded the matter "for further proceedings consistent with the order of the court" and to properly establish Betourney-Pavao as a substitute party. In addition, the Appeals Council stated that the ALJ "will offer the potential substitute party the opportunity for a hearing." (AR 1674.)

ALJ Merrill held a second hearing on August 12, 2013, at which Betourney-Pavao was represented by Margaret Sayles, a non-attorney representative, as well as an attorney. In addition, Mandly's ex-wife Susan Raymo appeared but did not testify, because the ALJ found that her testimony would be cumulative to Mandly's earlier testimony based on the attorney's proffer. (AR 1649.) Following the hearing, the ALJ issued a decision dated September 25, 2013, in which he again found that Mandly was not disabled during the closed period of December 1, 2008 to January 4, 2011. (AR 1638.) The Appeals Council did not review the ALJ's decision, making it the final decision of the Commissioner. This appeal followed.

III. 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 his or her impairments based on all the relevant medical and other evidence in the record. At this step, the ALJ also considers 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, at step five, 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).

A claimant is not considered to be disabled if alcoholism or drug addiction is "a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 423(d)(2)(C). Thus, if the ALJ determines that the claimant is disabled using the sequential analysis, and there is medical evidence of drug addiction or alcoholism, the All must determine whether the claimant's substance abuse is a contributing factor to the determination of disability. 20 C.F.R. § 404.1535(a). In making this determination, the ALJ must evaluate which of the claimant's physical and mental ...

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