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Wright v. Colvin

United States District Court, D. Vermont

March 20, 2015

Leonard C. Wright, Sr., Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

REPORT AND RECOMMENDATION (Docs. 7, 13)

JOHN M. CONROY, Magistrate Judge.

Plaintiff Leonard Wright brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act (SSA), 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 Wright's motion to reverse the Commissioner's decision (Doc. 7), and the Commissioner's motion to affirm the same (Doc. 13). For the reasons stated below, I recommend that Wright's motion be granted, and the Commissioner's motion be denied. I further recommend that the ALJ's decision be reversed and the action remanded solely for calculation of benefits.

Background

Wright was 38 years old on his alleged disability onset date of June 1, 2005. He completed nine years of schooling, receiving special education assistance, and does not have a GED. Wright has a marginal work history, working in various short-term unskilled jobs, including as a laborer, a roofer, a linen sorter, and a fast-food worker. Due to low earnings levels, none of these jobs qualify as past relevant work under the SSA.

Wright was born and raised in Massachusetts. (AR 1401.) He was a poor student, having to repeat at least two grades. (AR 27-28, 991, 1419.) He left school when he was 15 after his father died and his family needed him to work. His mother died when he was 17. After his parents' death and in his early 20s, Wright had no permanent residence and lived temporarily either on his own or with various friends and relatives, until he was 27, when he had his first son. (AR 1419.) Wright has never been married. He moved to Vermont in 1991, and met the mother of his first daughter in 1992. He has not seen this child since she was eight months old when her mother left with her. In 1993, he met the mother of his next four children, and was in a relationship with her until 2001, when she left him and the children for another relationship. Wright subsequently obtained full custody of these four children, and their mother is not in their lives. In 2010, Wright met the mother of his sixth child, a woman who had three additional children from a prior relationship. Thus, as of February 2012, Wright had six children: a girl born in 1992 who he had not seen since she was an infant; three girls and one boy ages 11, 12, 14, and 17 who he had cared for on his own since 2001; and a four-month-old boy. (AR 1402-03.) He was living in a five-bedroom duplex apartment in Brandon, Vermont, with his four older children, his infant son, his girlfriend, and his girlfriend's three other children. (AR 1402.) At that time, all four of the children Wright raised on his own were on Individual Education Plans (IEP) in school, and two of them were receiving social security benefits as a result of their learning disabilities.

In January 2010, Wright testified that, on a typical day, he got his children off to school and then was in and out of the bathroom for the rest of the morning, dealing with stomach problems. (AR 30, 34.) He stated that he attended medical, educational, and other appointments for himself and his children in the afternoon, and in the evening he cared for his children, including preparing their meals and trying to help them with their homework. (Id. ; see also AR 194-97, 215-18, 222.) When he did not have appointments, he was at home by himself all day, watching television and doing household chores including cleaning, doing the laundry, and going food shopping. (Id. ; AR 39-41, 50, 822.) When his daughters were home, they helped with the chores. (AR 39-41.) In June 2012, Wright testified that his daily routine was mostly the same as in 2010, except that his daughters were helping more with the chores and cooking. (AR 956-58, 963.) Wright does not have a driver's license, as he received many driving citations when he was a teenager, losing his license as a result. He has been arrested five or six times, several times for driving with a suspended license and several times for possession of marijuana. He uses marijuana on occasion, primarily to manage pain, relieve stress, and increase his appetite. (AR 1007-08, 1419.)

Wright suffers from a combination of physical and mental impairments. His most significant physical problem is his gastrointestinal disorder. He began having stomach problems around the age of 15. He was diagnosed with gastro-esophageal reflux (GERD), which was ultimately treated in April 2005 with a surgical procedure called Nissen fundoplication. (AR 422-35, 954.) Subsequent to the surgery, Wright continued to experience severe abdominal symptoms, including abdominal pain, gas buildup, and an inability to vomit or burp, resulting in over ten emergency room visits and at least one hospitalization from 2005 through 2009 and another ten emergency room visits in 2012. (AR 279-84, 289-90, 659-704, 737-54, 871-73, 1453-72, 1482-1501, 1522-47, 1739-62.) When he has severe abdominal pressure, Wright self-treats at home with a naso-gastro (NG) tube to relieve distention. (AR 32-33, 289-90, 955-56.) In January 2010, Wright testified that he used the tube "[p]robably four times" in the prior three months but there was not an "average" frequency in his use of it. (AR 33.) In June 2012, Wright testified that he used the NG tube "a couple times a month anyway." (AR 955.) In December 2012, Wright underwent a partial takedown of the previous Nissen fundoplication. (AR 1876-80.) In September 2013, Wright testified that, although the takedown surgery provided some relief, he still had air in his stomach upon waking every morning and thus still used the NG tube, although less frequently than he had before the surgery. (AR 994-95.)

In addition to his stomach problems, Wright suffers from other ailments, physical and mental. In December 2009, Wright's primary care physician, William Barrett, MD, listed the following additional diagnoses: traumatic brain injury (TBI) due to closed head injuries arising from two automobile accidents he was involved in as a teenager; chronic headaches; problems concentrating, attending to duties, and maintaining employment; shoulder pain with a history of torn rotator cuff; neck pain with a history of cervical spine fracture; and low back pain with a herniated disc. (AR 886-87.) Dr. Barrett also diagnosed Wright with chronic depression and anxiety. (AR 886.) In January 2010, Wright testified that he could not be around a lot of people because he felt like he was suffocating, and he was "pretty much a lone person." (AR 50.) In January 2010 and September 2013, Wright testified that he constantly worried about everything; he lost track of things; he was easily distracted; and he had problems managing his anger. (AR 44, 46-47, 1004-07.)

On November 30, 2006, Wright filed applications for DIB and SSI. Therein, he alleged that, starting on June 1, 1993, [1] he has been unable to work due to "Cognitive Impairment, Severe Esophagitis, Neck and back injury, Knee injury, Possible TBI from head trauma...[, and] pain from past orthopeadic [sic] and neurological injuries." (AR 159.) He explained that there were days when "it [wa]s difficult to get out of bed and walk due to severe pain and limited mobility." (Id. ) He further explained that he had difficulty concentrating and remembering things, learning new things, and setting priorities in caring for himself and his children. (Id. ) Wright's applications were denied initially and upon reconsideration, and he timely requested an administrative hearing. The first administrative hearing was conducted on January 27, 2010 by Administrative Law Judge (ALJ) Thomas Merrill. (AR 24-56.) Wright appeared and testified, and was represented by counsel. A vocational expert (VE) also testified at the hearing. On February 26, 2010, the ALJ issued an unfavorable decision, finding that Wright's only severe impairment was gastrointestinal disorders and that Wright was capable of a limited range of medium work and thus could return to his past relevant work as a laundry worker. (AR 4-18.) The Decision Review Board failed to complete its review of ALJ Merrill's decision within 90 days, making the decision the final decision of the Commissioner. (AR 1-3.) Wright subsequently filed a claim in this Court, and on September 28, 2010, the Court ordered the case remanded for further administrative proceedings pursuant to the parties' stipulated motion to remand. (AR 1025-27.) On April 28, 2011, the Disability Review Board issued a remand order based on the Court's September 2010 order. (AR 1028-32.)

A second hearing was held before ALJ Merrill on June 1, 2012.[2] (AR 949-84.) Wright again appeared and testified, and was represented by counsel. Although medical experts in psychology and orthopedics were scheduled to testify at the hearing, the ALJ decided that the main issue was vocational and thus a VE was the only expert to testify.[3] (AR 952-53.) On August 24, 2012, ALJ Merrill issued a second unfavorable decision on Wright's applications, making substantially the same findings as the first decision other than a new finding that Wright had no past relevant work but was capable of performing other work. (AR 1043-56.) Wright filed exceptions to the decision, and in April 2013, the Appeals Council issued a second order remanding the case, this time with instructions to assign a new ALJ. (AR 1035-38.)

The case was reassigned to ALJ Matthew Levin, and on September 12, 2013, a third administrative hearing was held. (AR 985-1024.) Testimony from a VE and Wright's mental health counselor, Ken Smith, MA, LCMHC, LADC, was taken at the hearing. Approximately two weeks later, ALJ Levin issued the third unfavorable decision, finding that Wright was not disabled under the SSA from his alleged disability onset date of June 1, 2005 through the date of the decision. (AR 921-38.) It is this decision, described in detail below, which is under review here. Wright filed exceptions to ALJ Levin's decision, but on March 27, 2014, the Appeals Council denied Wright's request for review, rendering it the final decision of the Commissioner. (AR 893-95.) Having exhausted his administrative remedies, Wright filed the Complaint in this action on May 5, 2014. (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 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 Levin first determined that Wright had not engaged in substantial gainful activity since his alleged onset date of June 1, 2005. (AR 924.) At step two, the ALJ found that Wright had the following severe impairments: "gastrointestinal disorders, status post Nissen [f]undoplication surgeries, degenerative disc disease of the cervical and lumbar spines, a right rotator cuff tear, depression, anxiety, a personality disorder, a cognitive disorder/learning disorder[, ] and polysubstance abuse." (Id. ) Conversely, the ALJ found that the following impairments were non-severe, as they did not cause functional limitations over a 12-month period: "documented left scapula fracture, knee pain, right hand fifth digit fracture, and left femur fracture with rod placement." (Id. ) At step three, the ALJ found that none of Wright's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 924-26.)

Next, the ALJ determined that Wright had the RFC to perform "light" work, as defined in 20 C.F.R. § 404.1567(b), except as follows:

[Wright] would need to be allowed a sit/stand option; he could frequently but not constantly engage in overhead reaching with the right upper extremity; he is limited to simple, unskilled work in a low-stress environment, defined as requiring little to no change in the work setting and little to no need for the use of judgment; he is able to maintain attention and concentration for two-hour increments throughout an eight-hour workday; he could sustain brief and routine social interaction with co[]workers and supervisors; and due to his gastrointestinal exacerbations, he would be absent from work approximately one day per month.

(AR 926.) Based on a review of Wright's earnings record, the ALJ found that he had no past relevant work. (AR 937.) Thus, the ALJ proceeded to the fifth step of the sequential analysis, and found that there are jobs existing in significant numbers in the national economy that Wright could perform, including the jobs of price marker, mail clerk, and flagger. (Id. ) The ALJ concluded that Wright had not been ...


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