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Angolano v. Colvin

United States District Court, D. Vermont

April 20, 2015

Valerie Richardson Angolano, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

OPINION AND ORDER (Docs. 13, 14)

JOHN M. CONROY, Magistrate Judge.

Plaintiff Valerie Richardson Angolano 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 her application for Social Security Income. Pending before the Court are Angolano's motion to reverse the Commissioner's decision (Doc. 13), and the Commissioner's motion to affirm the same (Doc. 14). For the reasons stated below, Angolano's motion is DENIED, and the Commissioner's motion is GRANTED.

Background

Angolano was 33 years old on her alleged disability onset date of December 2, 2000. She graduated from high school and then completed cosmetology school. After receiving her cosmetology license, she worked as a cosmetologist from around 1986 until 1990. But neither this work, nor any other jobs she has had, rose to the level of past relevant work for social security purposes.

Angolano is divorced and has two children who were ages 14 and 20 in June 2010. (AR 27-28.) She lived in Arizona with her husband and kids for seven years, moving to Vermont in around 2006 to be closer to her parents. (AR 586.) She has a long history of obesity, losing over 100 pounds between 2005 and 2007. (AR 331, 950.) In April 2006, Angolano was smoking two to three packs of cigarettes each day, but by October 2008, she had cut back to one pack a day. (AR 332, 668.)

In December 2000, Angolano was involved in an automobile accident, leaving her with chronic severe back pain. (AR 586, 610.) Her doctors prescribed morphine and tramadol, but they have not relieved her pain completely. (AR 30, 34, 1688, 1691.) She has tried physical therapy and weight loss to relieve the pain, but neither has worked; she has considered surgery but her doctors have advised it is not a good option. (AR 30, 586.) At Angolano's first administrative hearing, in June 2010, she testified that her lower back pain is constant, precludes her from sitting or standing for more than 10 to 15 minutes at a time, and limits her ability to bend over and lift things. (AR 29-31.) Angolano further testified that she is unable to work because the medications she takes to relieve her pain make her sleepy. ( Id. ) At Angolano's second administrative hearing, in October 2012, she again testified about how her medications affect her, stating that they make her drowsy and dizzy, forcing her to take several naps each day. (AR 1685, 1689-90.) She further stated that she can sit or stand for only 5 to 10 minutes at a time, and walking causes pain radiating down the back of her right leg into the sole of her foot and in the buttocks. (AR 1686, 1690-91.) She also described pain and tingling/numbness in her right hip. ( Id.; AR 1687.)

In June 2010, Angolano was living with her parents and her 14-year-old daughter in her parents' house. (AR 28.) On a typical day, she slept on and off, laid down two or three times using body pillows to relieve the pain, read books, walked around, ate, showered (with difficulty), used the computer (doing email and balancing her checkbook), occasionally went to the movies and out to dinner, occasionally went to the pharmacy and to her doctor's office, and drove a car maybe once a week. (AR 28, 31-33.) She stated that her mother did the cooking and household chores. (AR 31, 34.) As of October 2012, Angolano's daily schedule had not changed, except that she had moved from her parents' house to an apartment where she lived with her 17-year-old daughter; and her daughter was doing most of the driving as well as the household chores. (AR 1683-84.)

In February 2009, Angolano filed an application for Social Security Income, alleging that, as of December 2, 2000, she has been unable to work due to pain in her lower back, hip, right leg, and right foot. (AR 29, 142, 171-75.) Angolano's application was denied initially and upon reconsideration, and she timely requested an administrative hearing. Administrative Law Judge (ALJ) Dory Sutker conducted the hearing on June 23, 2010. (AR 21-45.) Angolano appeared and testified, and was represented by an attorney. A vocational expert (VE) also testified at the hearing. About a month later, the ALJ issued a decision finding that Angolano was not disabled at any time from her alleged disability onset date through the date of the decision. (AR 7-14.) Thereafter, the Decision Review Board failed to review the ALJ's decision within the prescribed period, rendering it the final decision of the Commissioner. (AR 1-3.) Having exhausted her administrative remedies, Angolano sought judicial review.

On November 17, 2011, this Court issued an Opinion and Order remanding the claim to the Commissioner for further proceedings and a new decision. (AR 985-94.) About a year later, in October 2012, ALJ Sutker held a second administrative hearing, at which Angolano again appeared and testified, represented by counsel. (AR 1672-1735.) A VE also testified at the hearing, as well as a medical expert, orthopedic surgeon Dr. Louis Fuchs. On November 20, 2012, the ALJ issued a second decision finding that Angolano was not disabled at any time from her alleged disability onset date through the date of the decision. (AR 943-56.) It is this decision under review here. The decision became final when the Appeals Council found no reason to assume jurisdiction. (AR 934-37.) Having again exhausted her administrative remedies, Angolano filed a Complaint in this Court on December 31, 2013. (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 in her November 2012 decision, ALJ Sutker first determined that Angolano had not engaged in substantial gainful activity since January 29, 2009, her disability application date. (AR 945.) At step two, the ALJ found that Angolano had the following severe impairments: degenerative disc disease, myofascitis, radiculitis, obesity, and diabetes mellitus. ( Id. ) At step three, the ALJ found that none of Angolano's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 946.) Next, the ALJ determined that Angolano had the RFC to perform light work, as defined in 20 C.F.R. § 404.1567(b), except as follows:

[Angolano] could occasionally lift and carry twenty pounds and frequently lift and carry ten pounds; c[ould] stand and walk for a total of six hours and sit for a total of six hours in an eight-hour day, with an option to alternate positions at will; she would have to avoid climbing ladders, ropes, or scaffold[s]; she could occasionally climb stairs but would need to avoid ramps while at work; she would have to avoid driving on the job; she should avoid hazards, pulmonary irritants such as dusts, fumes, odors, or poor ...

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