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Gerbasi v. Commissioner of Social Security

United States District Court, D. Vermont

July 21, 2015

PETER JOSEPH GERBASI, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION AND ORDER (Docs. 10, 11)

GEOFFREY W. CRAWFORD, District Judge.

Plaintiff Peter Joseph Gerbasi 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 ("Commissioner") denying his application for supplemental security income ("SSI") and disability insurance benefits. Pending before the court are Gerbasi's motion to reverse the Commissioner's decision (Doc. 10) and remand for calculation of benefits and the Commissioner's motion to reverse the Commissioner's decision and remand for further administrative proceedings. (Doc. 11).

I. Background

Peter Gerbasi was forty-six years old on his alleged disability onset date of December 31, 2011. (AR 355.) Gerbasi obtained a GED and is a veteran of the United States Army, having served for three years in the late 1980s. (AR 147.) He is divorced, and he sees his autistic adult son roughly every other weekend. (AR 697.) Gerbasi's living situation is unstable with periods of homelessness; between the time he filed his applications and the time of the ALJ's decision, he couch-surfed with friends and family, lived in a tent in the woods, lived in his girlfriend's apartment, lived with his mother, lived in a trailer, and slept in the back of someone's car. (AR 92, 436, 521, 632.)

Gerbasi traces his most significant physical impairment - degenerative disc disease - to a 1990 incident in which he tore two discs in his lower back while carrying a wall at work. (AR 1664.) Since then, he has suffered from lower back pain that has worsened with time. (AR 792.) A February 2012 imaging study showed "[i]ntervertebral disc space narrowing at L3-L4 and L4-L5." (AR 533.) A September 2012 imaging study showed moderate changes of degenerative disc disease at L3-L4 and L4-L5, as well as mild spinal stenosis and a tear at L5-S1. (AR 1246-47.) A November 2013 imaging study showed multilevel degenerative disc disease, most prominent at the C5-C6 and C6-C7 levels where his discs bulged. (AR 1307.) Gerbasi's lower back pain causes him difficulty standing, sitting, and walking, and in 2013 he began to use a cane for ambulation and, in 2014, a back brace for pain management. (AR 653, 1233, 1500.) He also tried a TENS unit in 2013, which he found unhelpful. (AR 1219.) Gerbasi has also regularly taken Vicodin, oxycodone, hydrocodone, and ibuprofen to manage his back pain, with minimal success. (AR 110, 507, 965, 1432.)

Gerbasi suffers from chronic hepatitis C and resultant cirrhosis, which causes chronic fatigue. (AR 658, 702.) He is also obese, and in 2012 he participated in a weight loss program upon referral by his social worker. (AR 832, 899.) In 2013 Gerbasi became increasingly dizzy with an unstable gait, and was considered at high risk for falls. (AR 1150, 1177, 1204.) The record documents multiple falls, beginning in 2012 and increasing in frequency through time. (AR 71, 996, 1138, 1171, 1179, 1264, 1513, 1634.)

Gerbasi also suffers from psychiatric impairments. He has been diagnosed with depressive disorder, bipolar disorder, panic disorder, and post-traumatic stress disorder ("PTSD") (AR 627, 699, 767.) His psychiatric symptoms include chronic anxiety, panic attacks, and depressed mood, with occasional passive suicidal ideation. (AR 779, 850, 1020, 1058, 1692.) Gerbasi also suffers from anger management problems, resulting in a diagnosis of "intermittent explosive disorder." (AR 1202.) In 2013, Gerbasi began experiencing auditory hallucinations, which increased in frequency over time. (AR 1138, 1171, 1202, 1205, 1215, 1422.) He hears different voices, some of which encourage him to take ill-advised actions like stealing. (AR 1138.) Gerbasi's mood became so unstable that he was admitted for an eleven-day inpatient hospitalization in November 2013, which led to a diagnosis of schizoaffective disorder upon discharge. (AR 1190, 1302.) Around the same time, Gerbasi began to suffer from manic phases as well as "white outs, " or brief periods during which he was unresponsive to his surroundings and he saw a blank white screen. (AR 1357, 1411, 1422, 1510, 1580.) Gerbasi's Global Assessment of Functioning ("GAF") score has been assessed at anywhere between 40 and 60 (upon discharge from the hospital), with lower scores occurring more frequently in the record. (AR 652, 738, 1185, 1202, 1302, 1426, 1602.)

Gerbasi has also been diagnosed with alcoholism. While for the most part his alcohol dependence is in remission, the record reveals multiple occasions in which Gerbasi had trouble with drinking. (AR 584, 651, 1363, 1634.)

Gerbasi has previously worked as a cook, janitor, and assembly line worker. (AR 388.) On a daily basis he reads, watches television, uses a computer, listens to the radio, naps, and prepares himself a meal. (AR 426.) He also cleans and does laundry, but picks only one task to complete daily because it takes him two to three hours. (AR 427.) He goes out four or five times a week, but sometimes stays inside all day because he is too fatigued. (AR 428.)

Gerbasi's applications for SSI and disability insurance benefits were denied initially and on reconsideration, and a hearing was held on July 16, 2014 before Administrative Law Judge ("ALJ") Thomas Merrill. (AR 145-70.) Gerbasi appeared and testified, and was represented by an attorney. (AR 145.) Christine B. Sanderson, with whom Gerbasi was living at the time of the hearing, testified as a witness on Gerbasi's behalf. ( Id. ) A vocational expert ("VE") also testified at the hearing. (AR 164-69.)

At the hearing, Gerbasi testified about his back pain, fatigue, and psychiatric impairments. He stated that he must take pain medication in the morning and wait fifteen or twenty minutes before getting out of bed due to his back pain. (AR 150.) He keeps a jug by his bed in case the pain medication does not take effect before he can go to the bathroom. (AR 151.) Throughout the day, he alternates between sitting, standing, and lying down, "whichever cases the pain the most." ( Id. ) He also testified that he had difficulty dressing and cooking and that Sanderson cooked for him and helped him move around the house. (AR 153-54.) Sanderson testified that Gerbasi had been living with her for almost one year. (AR 160.) She also stated that it takes Gerbasi a long time to get up in the morning due to pain; that he has difficulty navigating the stairs; and that she calls from work during the day to check on him because he had fallen a few times before. (AR 161.) Sanderson also testified about his hallucinations. (AR 162.)

II. Procedural History

The ALJ issued an unfavorable decision on September 4, 2014. (AR 19-33.) The Appeals Council denied Gerbasi's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1.) Gerbasi appealed to this court on November 13, 2014. (Doc. 1.) On April 22, 2015, Gerbasi moved to reverse the Commissioner's decision for calculation of benefits. (Doc. 10 at 23.) The Commissioner also moved to remand but believes that further administrative proceedings are necessary. (Doc. 11.) The Commissioner recognized that "legal errors in the Commissioner's decision require remand." (Id. at 1.) She also noted that a different "State agency found Mr. Gerbasi disabled as of September 5, 2014, " which "requires further evaluation" of Gerbasi's claims for SSI and disability insurance benefits. ( Id. at 8.)

III. The ALJ's Decision

"Disability" under the Social Security Act is 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 claimant 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 evaluating disability claims the Commissioner uses a five-step procedure. See Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004). At step one the ALJ must determine whether the claimant is presently engaging in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b). If he is not, step two requires the ALJ to determine whether he 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, at step three he determines whether the severe 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). If so, the claimant is presumptively disabled. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).

If the claimant is not presumptively disabled, the ALJ must determine the claimant's residual functional capacity ("RFC"), which is the most the claimant can do in a work setting despite his limitations based on the relevant evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). At step four, the ALJ considers whether the claimant's RFC precludes the performance of his past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). At the fifth and final 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 proof in the first four steps; 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).

The ALJ first determined that Gerbasi met the insured status requirements for disability benefits through December 31, 2014. (AR 22.) Employing the five-step procedure, the ALJ determined that Gerbasi did not engage in any substantial gainful activity since his alleged disability onset date of December 31, 2011. ( Id. ) At step two, the ALJ found that Gerbasi had the following severe impairments: "degenerative disc disease, chronic liver disease, an affective disorder, an anxiety disorder, and a personality disorder." ( Id. ) At step three, the ALJ found that Gerbasi did not have an impairment or combination of impairments that met or medically equaled an impairment in the Listings. ( Id. )

The ALJ then found that:

[Gerbasi] has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b) except he could lift and carry twenty pounds occasionally and ten pounds frequently; stand or walk for six hours and sit for six hours in an eight-hour day; occasionally climb ladders, ropes, or scaffold, crawl, or stoop, but frequently climb ramps or stairs, and engage in unlimited balancing, kneeling, and crouching; and avoid concentrated exposure to vibration and respiratory irritants. Despite his mental impairments, he could sustain concentration, persistence, or pace for one-to-three step tasks for two-hour blocks of time; he could interact with co-workers and supervisors; and he could deal with routine changes and safety concerns.

(AR 24.) The ALJ found that Gerbasi was capable of performing his past relevant work as a janitor. (AR 31.) He also concluded based on Gerbasi's RFC and the VE's testimony that there are other jobs in significant numbers in the national economy that Gerbasi could perform, such as price marker, laundry classifier, and small products assembler. (AR 32.) Finally, the ALJ concluded that Gerbasi had not been ...


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