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Bessette v. Colvin

United States District Court, D. Vermont

December 9, 2015

Leonard Bessette, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

OPINION AND ORDER (Docs. 13, 18)

JOHN M. CONROY, Magistrate Judge.

Plaintiff Leonard Bessette brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) 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 Bessette's motion to reverse the Commissioner's decision (Doc. 13) and the Commissioner's motion to affirm the same (Doc. 18[1]).

For the reasons stated below, Bessette's motion is DENIED, and the Commissioner's motion is GRANTED.


Bessette was 45 years old on his alleged disability onset date of December 31, 2006. He dropped out of high school in the 11th grade and never obtained a GED. (AR 38, 72, 85.) He has work experience as a factory worker and a carpenter painter. (AR 21, 38-40, 85.) He did not have a stable residence during the alleged disability period: he was incarcerated for periods of time between January 2006 and November 2008 and in 2012 and 2013, homeless at times, living in an apartment on his own for a period, and staying at his brother's place and at a friend's place at different times. (AR 37-38, 48, 56, 72-73, 357, 368, 500-700, 553, 2970-3111.) He has been married twice and has two children by his first wife. (AR 1133.) In the 1990s, he was convicted of sexual misconduct with his stepdaughter and domestic violence against his second wife. ( Id. ) Also around that time, he sustained a conviction for DUI. ( Id. ) In 2008, he was incarcerated for drinking while on probation. ( Id. )

Bessette suffers from Crohn's disease, hepatitis C, cirrhosis, knee pain, back pain, and depression. His Crohn's disease was diagnosed in approximately 1985, and causes pain in his intestines, stomach, and back. He underwent ileocolic resection in March 2008 for a bowel obstruction, an ostomy closure in August 2008, and multiple other abdominal surgeries related to his Crohn's. Despite these surgeries, Bessette has had persistent symptoms of pain in his back and abdomen, diarrhea, bowel incontinence, rectal bleeding, and blood in his stool; and he needs to take frequent and urgent bathroom breaks and frequently soils himself. In 1997, Bessette was diagnosed with chronic hepatitis C with cirrhosis, and the diagnosis was confirmed with pathological testing conducted in March 2008. As a result of the hepatitis, he has fatigue and low energy. He has also been diagnosed with tobacco use disorder, typically smoking at least half a pack of cigarettes per day for more than 30 years, as well as a history of polysubstance abuse involving IV drug use and including chronic opioid dependence since the 1980s.

In April 2009, Bessette protectively filed applications for DIB and SSI. (AR 268, 275.) Therein, he alleged that he became unable to work on January 1, 2002, and stopped working on April 6, 2009, due to his Crohn's disease, hepatitis C, and cirrhosis.[2] (AR 316.) He stated that he has chronic stomach and back pain and weak joints. ( Id. ) In an updated disability report, Bessette stated that, since December 15, 2008, he has been "very depressed and fatigued" and "[unable to] hold [his] bowel movements." (AR 377.) He further stated: "I can't remember things well anymore and I am always fatigued and depressed.... I am always in pain. It keeps me up most nights and... down most days." (AR 381.) Bessette's applications were denied initially and upon reconsideration, and he timely requested an administrative hearing. The first hearing was conducted on June 13, 2011 by Administrative Law Judge (ALJ) Ruth Kleinfeld. (AR 32-50.) Bessette appeared and testified, and was represented by a paralegal. (AR 34-35.) On July 28, 2011, the ALJ issued a decision finding that Bessette was not disabled during the relevant period. (AR 107-18.) Bessette requested review by the Appeals Council, and on February 6, 2013, the Appeals Council vacated the ALJ's decision and remanded the claim to the ALJ for further administrative hearings. (AR 125-28.)

On August 5, 2013, the ALJ held a second hearing on Bessette's claim, pursuant to the order of the Appeals Council. (AR 51-64.) Unfortunately, however, the ALJ's office had neglected to arrange for a vocational expert (VE) to attend the hearing, as directed by the Appeals Council. (AR 53, 67.) Therefore, on November 6, 2013, a third administrative hearing was held by ALJ Kleinfeld. (AR 65-96.) Bessette again appeared and testified, and was represented by an attorney. A VE also attended and testified at the hearing. (AR 81-94.) On January 31, 2014, the ALJ issued a decision finding that Bessette was not disabled under the Social Security Act from his alleged disability onset date of December 31, 2006 through the date of the decision. (AR 9-23.) Thereafter, the Appeals Council denied Bessette's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Having exhausted his administrative remedies, Bessette filed the Complaint in this action on July 29, 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 Kleinfeld first determined that Bessette had not engaged in substantial gainful activity since December 31, 2006, his alleged disability onset date. (AR 11.) At step two, the ALJ found that Bessette had the following severe impairments: "Crohn's disease/regional enteritis, chronic polysubstance abuse, right knee impairment status post successful surgery, asthma, tobacco use disorder, hepatitis C, and a depressive disorder." (AR 12.) At step three, the ALJ found that none of Bessette's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 13-16.) Next, the ALJ determined that Bessette had the RFC to perform "light work, " as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except as follows: "[H]e must avoid bending frequently, and requires access to bathroom facilities during the workday at least every [two] hours. He is able to tolerate routine interactions with co[]workers, supervisors[, ] and the general public." (AR 16.) Given this RFC, the ALJ found that Bessette was unable to perform his past relevant work as a carpenter painter. (AR 21.) Based on testimony from the VE, however, the ALJ determined that Bessette could perform other jobs existing in significant numbers in the national economy, including the jobs of price marker, ticket seller, laundry sorter, document preparer, taper of printed circuit boards, and surveillance-system monitor. (AR 21-23.) The ALJ concluded that Bessette had not been under a disability from his alleged disability onset date of December 31, 2006 through the date of the decision. (AR 23.)

Standard of Review

The Social Security Act defines the term "disability" as 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 person 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 considering a Commissioner's disability decision, the court "review[s] the administrative record de novo to determine whether there is substantial evidence supporting the... decision and whether the Commissioner applied the correct legal standard." Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court's factual review of the Commissioner's decision is thus limited to determining whether "substantial evidence" exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder."). "Substantial evidence" is more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, ...

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