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Rye v. Colvin

United States District Court, D. Vermont

February 17, 2016

Connie Jean Rye, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.


John M. Conroy United States Magistrate Judge

Plaintiff Connie Jean Rye 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 applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Pending before the Court are Rye’s motion to reverse the Commissioner’s decision (Doc. 10), and the Commissioner’s motion to affirm the same (Doc. 17). For the reasons stated below, Rye’s motion is DENIED, and the Commissioner’s motion is GRANTED.


Rye was 40 years old on her alleged disability onset date of August 1, 2006. (AR 323.) She stopped attending school in the eighth grade and does not have a GED. (AR 56, 71, 292.) She has worked as a cashier, a kitchen aide, and a nursing assistant. (AR 60, 95, 300.) She is not married and has an adult daughter. (AR 57.) During the alleged disability period, she was living in a mobile home with her boyfriend. (AR 57, 68, 72, 290, 314, 322.) Rye has never known her father, and her mother died when she was 14 years old. (AR 70, 404, 406, 640.) She was raped on two separate instances when she was in her early teens, resulting in the birth of her daughter when Rye was only 14 years old. (AR 15, 70-71, 391, 394, 402, 404, 640.) Since then, Rye has married twice, both marriages ending due to her husbands’ physical and/or mental abuse. (AR 72, 640.)

Since she was a teenager, Rye has complained of back pain. (AR 517, 700, 763, 800, 899, 902-03.) Beginning in November 2001, she received lumbar facet joint steroid injections, which worked well. (AR 719, 721, 777-78, 781, 783, 785, 788.) She also took various prescription narcotics and other medications, including Percocet and methadone, for pain. (AR 64, 468, 470, 714, 722, 787-89.) Despite these attempts to alleviate her back pain, Rye testified at the November 2013 administrative hearing that her most significant medical issue was still her lower back pain (AR 63), which she stated had been at a pain level of about 7-9 out of 10 for “[o]ver 10 years” (AR 65).

Rye also has a history of migraine headaches. (AR 708, 902, 910, 937.) In approximately 1984, she was diagnosed with asthma (AR 938; see AR 432, 483-517, 650, 756, 762-63); and in 1999, she was assessed with “[a]sthma with possible component of [chronic obstructive pulmonary disease (COPD)]” (AR 763), which later became a diagnosis of COPD (AR 478, 492, 570, 599, 601, 609, 647, 685-88). Despite her breathing problems, Rye has smoked cigarettes since at least 1984, smoking a pack a day in January 2010, two packs a day in approximately November 2011, and a pack a day in November 2013. (AR 59-60, 517, 757, 902.) In addition to her back pain, headaches, asthma, and COPD, Rye also suffers from depression, posttraumatic stress disorder (PTSD), insomnia, and limited cognitive ability. (See, e.g., AR 433, 487, 511, 521, 604-06, 609-11, 640-41, 662.)

In November 2011, Rye protectively filed applications for social security income and disability insurance benefits. In her disability application, Rye alleged that, starting in August 2006, she stopped working due to COPD, lower back pain, migraines, asthma, and kidney problems. (AR 291.) Her application was denied initially and upon reconsideration, and she timely requested an administrative hearing. The hearing was conducted on November 5, 2013 by Administrative Law Judge (ALJ) Paul Martin. (AR 49-126.) Rye appeared and testified, and was represented by an attorney. A vocational expert (VE) also testified at the hearing. On November 22, 2013, the ALJ issued a decision finding that Rye was not disabled under the Social Security Act from her alleged onset date of August 1, 2006 through the date of the decision. (AR 29-42.) Thereafter, the Appeals Council denied Rye’s request for review, rendering the ALJ’s decision the final decision of the Commissioner. (AR 6-9.) Having exhausted her administrative remedies, Rye filed the Complaint in this action on August 11, 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 Martin first determined that Rye had not engaged in substantial gainful activity since her alleged disability onset date of August 1, 2006. (AR 31.) At step two, the ALJ found that Rye had the following severe impairments: COPD, migraine headaches, low back pain of unknown etiology, and depression. (AR 32.) At step three, specifically considering Listing 3.02 (for chronic pulmonary insufficiency), Listing 11.03 (for non-convulsive epilepsy), Listing 1.04 (for disorders of the spine), Listing 12.04 (for affective disorders), and Listing 12.06 (for anxiety disorders); the ALJ found that none of Rye’s impairments, alone or in combination, met or medically equaled a listed impairment. (AR 32-34.) Next, the ALJ determined that Rye had the RFC to perform “light work, ” as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), except as follows:

[Rye] can sit, stand, and walk for one hour each at a time followed by a change of position or the ability to stretch before resuming the activity. She could do no climbing of ladders, ropes, or scaffolds, but has no other specific limitations in postural activities. She should avoid even moderate exposure to fumes, dusts, gases, and other respiratory irritants, as well as exposure to dangerous machinery and unprotected heights. [She] is restricted to unskilled and semi-skilled work. She should avoid fast-paced production requirements and more than simple work-related decisions and routine workplace changes. She can interact with coworkers and supervisors on a routine basis. She can interact with the public on an occasional, superficial level. She can maintain concentration, persistence, and pace for up to two-hour blocks of time.

(AR 34.) Given this RFC, the ALJ found that Rye was unable to perform her past relevant work as a cashier II, a cashier/checker, a kitchen aide, and a nursing assistant. (AR 40.) Finally, based on testimony from the VE, the ALJ determined that Rye could perform other jobs existing in significant numbers in the national economy, including the following representative occupations: marker, power screwdriver operator, and cafeteria worker. (AR 41.) The ALJ concluded that Rye had not been under a disability, as defined in the Social Security Act, from the alleged onset date of August 1, 2006 through the date of the decision. (Id.)

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, 401 (1971); Poupore, 566 F.3d at 305. In its deliberations, the court should bear in mind that the Social Security Act is “a remedial statute to be broadly construed and liberally applied.” Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).


Rye claims that the ALJ made numerous critical errors in his decision, including: at step two, in his assessment of the severity of Rye’s impairments; at step three, in his determination that Rye did not have an impairment or combination of impairments that met or medically equaled a listed impairment; in his assessment of Rye’s RFC; in his analysis of the medical opinions; in his assessment of Rye’s credibility; and at step five, in his finding that jobs existed in significant numbers in the national economy that Rye could perform. Additionally, Rye contends that the ALJ should have reopened her prior June 2008 disability applications, and that the Appeals Council erred in refusing to consider two exhibits introduced as additional evidence after the ALJ issued his decision. The Commissioner opposes each of Rye’s claims.

For the reasons discussed below, the Court finds in favor of the Commissioner and affirms the decisions of the ALJ and the Appeals Council.

I. Step-Two Severity Assessment

Rye first argues that the ALJ erred in his step-two assessment of the severity of her impairments. It is the claimant’s burden to show at step two that she has a “severe impairment, ” meaning “any impairment or combination of impairments which significantly limits [the claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c); see Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (“If the process ends at step two, the burden of proof never shifts to the [Commissioner]. . . . It is not unreasonable to require the claimant, who is in a better position to provide information about his own medical condition, to do so.”). An impairment or combination of impairments is “not severe” when medical evidence establishes “only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on [the claimant’s] ability to work.” SSR 85-28, 1985 WL 56856, at *3 (1985). Importantly, the omission of an impairment at step two does not in and of itself require remand and may be deemed harmless error. See Pompa v. Comm’r of Soc. Sec., 73 F. App’x 801, 803 (6th Cir. 2003) (“Because the ALJ found that Pompa had a severe impairment at step two of the analysis, the question of whether the ALJ characterized any other alleged impairment as severe or not severe is of little consequence.”); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (applying harmless error standard in social security context, and holding that, “where application of the correct legal principles to the record could lead to only one conclusion, there is no need to require agency reconsideration”). This is particularly true where the disability analysis continued and the ALJ considered all of the claimant’s impairments in combination in his RFC determination. See Reices-Colon v. Astrue, 523 F. App’x 796, 798 (2d Cir. 2013) (finding alleged step-two error harmless because ALJ considered impairments during subsequent steps); Stanton v. Astrue, 370 F. App’x 231, 233, n.1 (2d Cir. 2010) (same); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (any ALJ error in failing to list plaintiff’s bursitis at step two was harmless, because the ALJ “extensively discussed” the bursitis and “considered any limitations posed by [it] at [s]tep 4”).

As noted above, the ALJ found that Rye had the severe impairments of COPD, migraine headaches, low back pain, and depression. (AR 32.) Rye asserts that the ALJ should have also considered, at step two, whether Rye’s following additional impairments were severe: asthma, personality disorder, insomnia, PTSD, limited cognitive ability, and degenerative disc disease. (Doc. 10 at 6.) Rye does not specify why each of these impairments meets the regulatory definition of a “severe” impairment. In any event, the Court finds that any error the ALJ may have made at step two was harmless, given that the ALJ continued with the sequential analysis, considering all of Rye’s alleged impairments in combination and accounting for them in his RFC determination. (See AR 32-40.)

For example, the ALJ considered Rye’s asthma in conjunction with his consideration of her COPD and general “breathing difficulties, ” noting spirometry results and other medical evidence. (AR 38 (citing AR 570).) The ALJ also noted that Rye continued to smoke, despite her doctor encouraging her to stop. (Id.; see AR 476-78, 757, 760-62, 769.) The ALJ reasonably concluded that Rye’s ability to take short walks and clean her house suggested her respiratory ailments did not prevent her from working. (AR 38; see AR 68, 315-16, 319, 339, 581.) Regarding Rye’s personality disorder, insomnia, PTSD, and limited cognitive ability, the ALJ discussed the findings of psychologists M. Corbin Gould, MA and Diana Greywolf, PhD related to these impairments, but noted that: (a) Gould opined that Rye’s mental health problems “do not significantly interfere with her daily activities, ” and (b) Dr. Greywolf’s records “do[] not document any mental status examination or other observations of [Rye’s] functioning, ” as discussed in more detail below. (AR 39; see AR 604-06, 622-34, 641.) With respect to Rye’s degenerative disc disease, the ALJ thoroughly considered Rye’s allegations that she was impaired by back pain and in fact found that Rye’s “low back pain of unknown etiology” was a severe impairment. (AR 32.) The ALJ explicitly considered whether this impairment met the criteria for Listing 1.04, which encompasses disorders of the spine including degenerative disc disease. (Id.) The ALJ further considered an MRI of Rye’s lumbar spine and examination findings relating to Rye’s strength, range of motion, motor function, posture, gait, and other tests relevant to her back impairment. (See AR 32-40.)

Furthermore, the ALJ accounted for Rye’s various limitations and impairments, severe or not, in his RFC determination. Specifically, accounting for her breathing impairments, the ALJ found that Rye should “avoid even moderate exposure to fumes, dusts, gases, and other respiratory irritants.” (AR 34.) Accounting for Rye’s back impairment, the ALJ found that Rye could sit, stand, and walk for only one hour each at a time, followed by a change of position or the ability to stretch before resuming the activity; could never climb ladders, ropes, or scaffolds; and should avoid exposure to dangerous machinery and unprotected heights. (Id.) Accounting for Rye’s mental impairments, including cognitive limitations, the ALJ found that Rye was restricted to “unskilled and semi-skilled work”; should avoid “fast-paced production requirements and more than simple work-related decisions and routine workplace changes”; could interact with coworkers and ...

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