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Bessette v. Colvin

United States District Court, D. Vermont

February 27, 2015

Wilfred Bessette, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

OPINION AND ORDER (Docs. 14, 17)

JOHN M. CONROY, Magistrate Judge.

Plaintiff Wilfred Bessette 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 denying his applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Pending before the Court are Bessette's motion to reverse the Commissioner's decision (Doc. 14), and the Commissioner's motion to affirm the same (Doc. 17). For the reasons stated below, Bessette's motion (Doc. 14) is DENIED, and the Commissioner's motion (Doc. 17) is GRANTED.


Bessette was 40 years old on his alleged disability onset date of August 24, 2007.[1] He completed school through the 11th grade. His job history consists of working as a newspaper inserter and a cleaner/janitor. He has not worked since 2007.

As a child, Bessette was emotionally and physically abused by his father, and observed his father physically abuse his mother. (AR 566-67.) He has been married twice and has six adult children. ( Id. ; AR 52.) A 2012 psychological report states that Bessette was living with two of his children at that time and could not live with his second wife due to his inability to control his anger. (AR 567; see also AR 50-52.) He reported having a history of domestic abuse and being charged with domestic assault on two occasions, the more recent charge arising from punching his daughter in the arm after he stopped taking his prescribed medication. (AR 52, 564-66.) He stated that, in general, when he stopped taking his medication, he abused his wife and children emotionally/verbally. (AR 564.) He further stated that he was dismissed from his job as a newspaper inserter because he "yell[ed] and shout[ed] at people." ( Id. ) Given his abusive treatment of his wives and children, Bessette stated: "I'm happy as long as I get to talk to my kids and see them once in a while." (AR 565.)

Bessette suffers from depression, anxiety, posttraumatic stress disorder (PTSD), and difficulty concentrating, remembering, and maintaining attention. (AR 568, 570.) He has thoughts of suicide and states that he has attempted suicide many times. (AR 558-59, 568-69.) He testified that he is unable to work due to his anxiety and anger issues, and "not wanting to be around people" (AR 46), as well as because of his attention deficit hyperactivity disorder (ADHD) and depression (AR 47). He stated that he is always thinking about harming himself and more recently has been acting on those thoughts by overdosing on medications and drinking harmful chemicals. (AR 49.) In addition to his mental problems, Bessette has back pain and glaucoma/impaired vision. (AR 357, 359.) On a typical day, Bessette sits around the house pacing and worrying about things. (AR 47.) Occasionally he goes for walks and spends time playing games online. ( Id. ) He generally has no interest in going anywhere, seeing anyone, or doing anything. ( Id. )

On January 13, 2011, Bessette protectively filed applications for DIB and SSI. Therein, he alleged that, starting on August 24, 2007, he has been unable to work due to glaucoma, depression, obsessive compulsive disorder, ADHD, anxiety, and suicidal thoughts. (AR 196.) The applications were denied initially and upon reconsideration, and Bessette timely requested an administrative hearing. The hearing was conducted on May 18, 2012 by Administrative Law Judge (ALJ) Thomas Merrill. (AR 41-62.) Bessette appeared and testified, and was represented by an attorney. A vocational expert (VE) also testified at the hearing. On July 23, 2012, the ALJ issued a decision finding that Bessette was not disabled under the Social Security Act during the relevant period. (AR 35.) Thereafter, the Appeals Council denied Bessette's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 5-10.) Having exhausted his administrative remedies, Bessette filed the Complaint in this action on September 13, 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 Bessette had not engaged in substantial gainful activity since his modified alleged disability onset date of July 2, 2010. (AR 27.) At step two, the ALJ found that Bessette had the severe impairments of polysubstance dependence and depression NOS (not otherwise specified). ( Id. ) Conversely, the ALJ found that Bessette's glaucoma and back problems were non-severe, and that his low IQ was not a medically determinable impairment. (AR 28-29.) At step three, the ALJ found that none of Bessette's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 29.) Next, the ALJ determined that Bessette had the RFC to perform a full range of work at all exertional levels and retained the capacity to understand and follow directions, except that he could sustain attention/concentration for only "simple tasks, " could respond and relate adequately to others only in a "low[-]contact setting, " and could adapt to only "simple changes." (AR 31.) Given this RFC, the ALJ found that Bessette was capable of performing his past relevant work as a newspaper inserter and a cleaner/janitor, and thus was not disabled from July 2, 2010 through the date of the decision. (AR 35.)

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, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).

In considering a Commissioner's disability decision, the court "review[s] the administrative record de novo to determine whether there is substantial evidence supporting the... decision and whether the Commissioner applied the correct legal standard." Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court's factual review of the Commissioner's decision is thus limited to determining whether "substantial evidence" exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder."). "Substantial evidence" is more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Poupore, 566 F.3d at 305. In its deliberations, the court should bear in mind that the Social Security Act is "a remedial statute to be broadly construed and liberally applied." Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).


Bessette argues that the ALJ: (1) erred in finding that Bessette's only severe impairments were depression and polysubstance dependence; (2) erred in his evaluation of various medical assessments, including those of physical therapist (PT) Joshua Rudman, clinician Michael Richards-Bradt, MA, psychologist Brett Hartman, PsyD, mental health counselor Thomas Mott, MS, LCMHC, LADC, and nonexamining agency psychological consultant T. Bruni; (3) failed to adequately consider Bessette's Global Assessment of Functioning (GAF) scores; and (4) made an improper credibility finding. Bessette claims that, had the ALJ not made these errors, his RFC determination would have been more restrictive and he would have been ...

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