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Southgate v. Colvin

United States District Court, D. Vermont

October 9, 2015

Eric Stephen Southgate, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.


JOHN M. CONROY, Magistrate Judge.

Plaintiff Eric Southgate 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 Southgate's motion to reverse the Commissioner's decision (Doc. 9), and the Commissioner's motion to affirm the same (Doc. 15). For the reasons stated below, I recommend that Southgate's motion be GRANTED, in part; the Commissioner's motion be DENIED; and the matter be REMANDED for further proceedings and a new decision.


Southgate was 46 years old on his amended alleged disability onset date of September 8, 2010. He dropped out of school at age 15 or 16 and obtained his GED at age 17. (AR 47, 1303.) He has worked as a chef, a carpenter, and a construction worker. (AR 48.) He never married and has no children. (AR 1302.) He lives alone and sees his father and sister regularly. ( Id.; AR 49, 67.)

As a child, Southgate was abused and neglected by his alcoholic parents, resulting in him being placed in a group home at age 16, around the time when his parents divorced. (AR 1302-03, 1546.) He started abusing alcohol at age 11 or 12, adding marijuana, cocaine, and LSD soon thereafter. (AR 1303.) Southgate continued to use drugs and alcohol as an adult. ( Id. ) He has been admitted into several alcohol and drug treatment residential programs, and has participated in alcoholics anonymous in the past. (AR 1306.)

In 2007, Southgate suffered a shoulder injury, resulting in shoulder surgery in 2008. (AR 53-54.) In 2009, he suffered two heart attacks, which were treated with two separate stent procedures to the right coronary artery. (AR 353-55, 365-67, 401-02). As a result of these injuries, Southgate continues to experience shoulder pain and fatigue. Southgate also suffers from chronic neck and low back pain, stemming from the cervical and lumbar spine impairments spondylosis (degeneration of the spine) and spondylolisthesis (a forward or backward slippage of one vertebra on an adjacent vertebra). ( See, e.g., AR 984, 989, 1058, 1479, 1494-95, 1497, 1563.) He has tried physical therapy, epidural steroid injections, acupuncture, and many different types of medications, including narcotics, to address his chronic pain. (AR 50, 58.) He has found, however, that the only methods effective at reducing his pain and having minimal side effects are acupuncture and daily marijuana use. (AR 58-59, 62, 1304.) Apparently linked to his physical impairments, particularly his chronic pain, Southgate also suffers from depression. ( See, e.g., AR 428.)

In February 2012, Southgate filed applications for SSI and DIB, alleging disability beginning on November 28, 2007[1]. (AR 52, 242-52.) In his disability application, Southgate alleged that he stopped working on the alleged disability onset date because of the following conditions, along with "other reasons" (AR 276): heart attacks in 2008 leaving him with "permanent heart damage, " a "broken neck, " a traumatic brain injury resulting from a 1992 motorcycle accident, depression, chronic pain, high cholesterol, arthritis in the shoulders, degenerative disc disease, and a 1992 collar bone injury (AR 275). In a February 2012 Function Report, Southgate stated that "[e]verything and anything causes [him] increased pain and discomfort"; that he "can't stand[, ] sit, walk, drive, or d[o] anything for any length of time"; and that he is in "constant pain." (AR 295.) Southgate further stated that, on a typical day, he does no more than let the dog out and in, drink coffee, take his medications, sit in his recliner chair, and l[ie] down. (AR 296.) He explained that some days, he drives to visit his father and attempts to walk; but he "get[s] very tired and weak" and "the more [he] tr[ies] to d[o] physically, the more pain [he's] in." ( Id. ) He added that his neck hurts "all the time" and he sometimes has numbness and weakness in his hands. ( Id. )

Southgate's application was denied initially and upon reconsideration, and he timely requested an administrative hearing. The hearing was conducted on November 25, 2013, by Administrative Law Judge (ALJ) Thomas Merrill. (AR 44-76.) Southgate appeared and testified, and was represented by attorney Elaine Bodurtha. A vocational expert (VE) also testified, along with Southgate's sister, Mary Therese Crete. (AR 67-74.) Crete stated that she sees Southgate daily, helping him with household chores and driving him to doctor appointments. (AR 67-68.) She further stated that she has observed Southgate having problems with walking, standing, and holding onto things, and experiencing "agonizing" back and leg pain. (AR 69.)

On January 16, 2014, the ALJ issued a decision finding that Southgate was not disabled under the Social Security Act from his amended alleged disability onset date through the date of the decision. (AR 24-36.) Thereafter, the Appeals Council denied Southgate's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-4.) Having exhausted his administrative remedies, Southgate filed the Complaint in this action on August 4, 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 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 Southgate had not engaged in substantial gainful activity since his amended alleged disability onset date of September 8, 2010. (AR 27.) At step two, the ALJ found that Southgate had the following severe impairments: degenerative disc disease of the cervical spine status post fusion, depression, and intermittent chest pain. ( Id. ) Conversely, the ALJ found that Southgate's traumatic brain injury, shoulder injury, heart problems, arthritis, high cholesterol, and obstructive sleep apnea, were not severe, given that none of these conditions limited Southgate's functional capacity. ( Id. ) The ALJ also found that, despite a January 2013 medical opinion stating that Southgate had a "significant substance addiction disorder" and was a "high-risk opioid patient, " the record did not support functional limitations attributed to substance abuse, and thus Southgate's drug addiction or alcoholism was "not material and not severe." ( Id. ) Next, despite the ALJ's earlier statement that Southgate's depression was a "severe" impairment ( id. ), the ALJ stated that depression "does not cause more than minimal limitation in [Southgate's] ability to perform basic mental work activities[, ] and is therefore nonsevere" (AR 28).

At step three, considering Listings 1.02 (major dysfunction of a joint) and 1.04 (disorders of the spine), the ALJ found that none of Southgate's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 29.) Next, the ALJ determined that Southgate had the RFC to perform ...

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