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Burdick v. Colvin

United States District Court, D. Vermont

November 17, 2015

Amy J. Burdick, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.


JOHN M. CONROY, Magistrate Judge.

Plaintiff Amy Burdick brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) under Title XVI of the Social Security Act (SSA), requesting review and remand of the decision of the Commissioner of Social Security denying her application for Supplemental Security Income (SSI). Pending before the Court are Burdick's motion to reverse the Commissioner's decision (Doc. 15), and the Commissioner's motion to affirm the same (Doc. 18). For the reasons stated below, I recommend that Burdick's motion be GRANTED, in part; the Commissioner's motion be DENIED; and the matter be REMANDED for further proceedings and a new decision.


Burdick was 34 years old on the date she protectively filed her SSI application, November 23, 2010.[1] (AR 68-69, 184, 251.) She has a high school education and took courses to become a pharmacy technician but did not complete the program. (AR 69.) She has experience working as a baker's helper, a fast food worker, a taxi driver, a production assembler, and a housekeeper. (AR 83, 226.) Additionally, as of July 2012, she was babysitting her friend's six-year-old son for four to five hours each week. (AR 69-70, 76-77.) During the relevant period, she was living in an apartment with her husband. (AR 243, 352.)

Burdick has a long history of mental health and substance abuse problems, as well as physical ailments including degenerative disc disease and obesity[2]. Regarding her substance abuse problems, the record reveals that Burdick attended a substance abuse retreat for approximately one week in March 2008, where she attended group therapy and was administered medication for treatment of narcotics abuse. (AR 465-67.) The final diagnoses upon discharge include opioid dependence, cannabis dependence, depressive disorder not otherwise specified, and personality disorder not otherwise specified. (AR 466.) Her condition on discharge was "improved" ( id. ), and she planned to return home to her husband, with follow-up appointments scheduled with her primary care physician, her psychiatrist, and her therapist (AR 467). It was recommended that she continue attending Alcoholics Anonymous (AA) meetings. ( Id. ) In July 2012, Burdick testified that she had been sober for four years and four months. (AR 74.)

The record reflects that Burdick's mental health problems began at an early age. She was hospitalized for psychiatric difficulties when she was 19 years old and again when she was in her mid-20s. (AR 350-54, 466.) In 2008, following her father's death the prior year, she was admitted to the Brattleboro Retreat for 15 days of psychiatric treatment for depression. (AR 465-66.) She was discharged with prescriptions for Wellbutrin and Lexapro (antidepressants) and referred to her primary care physician and her psychiatrist for continuing care. (AR 466-67.) In December 2010, Burdick began treating with Dr. Mary Jean Sadlak, a psychologist, for individual psychotherapy to address her depression and anxiety. (AR 498, 622.) In March 2011, after seeing Burdick five times, Dr. Sadlak listed Burdick's diagnoses as major depressive disorder (recurrent), posttraumatic stress disorder (PTSD), generalized anxiety disorder, and borderline personality disorder. (AR 489.) Dr. Sadlak opined that, as a result of these conditions, Burdick's "underlying personality structure" was "very unstable"; she had "very real problems functioning in society"; and she was "not able to work" and "very unlikely... [to] be able to work in the foreseeable future." (AR 490.)

In November 2010, Burdick protectively filed her application for SSI, alleging that she was unable to work due to depression, anxiety, PTSD, borderline personality disorder, bone spurs in her spine, degenerative disc disease, arthritis in her spine, and a herniated disc. (AR 225, 251.) She further alleged that her conditions were "exacerbated" by her father's 2007 death. ( Id. ) In an updated SSA form, Burdick reported that, starting in June 2011, she did not leave her house except to see her therapist because she was "too scared[] and nerv[ous]." (AR 264.) Burdick's application was denied initially and upon reconsideration, and she timely requested an administrative hearing. The hearing was conducted on July 27, 2012 by Administrative Law Judge (ALJ) Thomas Merrill. (AR 65-91.) Burdick appeared and testified, and was represented by an attorney. A vocational expert (VE) also testified.

At the administrative hearing, Burdick testified that her mental impairments "contribute to [her] being a very inconsistent, nervous wreck." (AR 71.) She explained that she has "a lot of comprehension issues, " as well as mood swings and "trouble with concentration and decision making, thinking." ( Id. ) Burdick further testified that, on a typical day, she sleeps, eats, takes her medication, showers, watches a lot of television, plays games on social media websites, plays with her pets, goes to appointments when she has them, and attends AA meetings when she feels emotionally stable enough to leave the house (two to four times weekly). (AR 71-72, 75.) She stated that she goes grocery shopping weekly (AR 73), but ends up postponing the outing once or twice each month because she does not feel "up to it" (AR 74), and is unable to finish her shopping "[p]robably maybe once a month" because of panic attacks (AR 78). Burdick stated in a Function Report that she also cares for her pets most days, which involves feeding them and sifting the cats' litter box. (AR 244.) She further stated that she does "a few" household chores, including putting dishes in the dishwasher twice weekly, vacuuming twice monthly, and doing laundry once weekly; and her husband does "most everything el[se]." (AR 245; see AR 82.) Nonetheless, Burdick started that "some days [she] ha[s] no interest in anything, " and "most days [she] can't get out of bed to get ready for leaving the house." (AR 247.)

On August 20, 2012, the ALJ issued a decision finding that Burdick was not disabled under the SSA since November 23, 2010, the date her SSI application was filed. (AR 15-25.) Thereafter, the Appeals Council denied Burdick's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-4.) Having exhausted her administrative remedies, Burdick filed the Complaint in this action on June 30, 2014 (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, ALJ Merrill first determined that Burdick had not engaged in substantial gainful activity since November 23, 2010, the date she filed her application. (AR 17.) At step two, the ALJ found that Burdick had the following severe impairments: degenerative disc disease, obesity, affective disorder, anxiety disorder, substance addiction disorder in sustained remission, and a personality disorder. ( Id. ) At step three, the ALJ found that none of Burdick's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 17-19.)

Next, the ALJ determined that Burdick had the RFC to perform "light work, " as defined in 20 C.F.R. § ...

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