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Loree v. Colvin

United States District Court, D. Vermont

September 20, 2016

Raymond Vincent Loree, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

          OPINION AND ORDER (DOCS. 15, 17)

          John M. Conroy United States Magistrate Judge.

         Plaintiff Raymond Loree 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 application for Disability Insurance Benefits (DIB). Pending before the Court are Loree's motion to reverse the Commissioner's decision (Doc. 15), and the Commissioner's motion to affirm the same (Doc. 17). For the reasons stated below, Loree's motion is GRANTED, the Commissioner's motion is DENIED, and the matter is REMANDED for further proceedings and a new decision.


         Loree was 27 years old on his alleged disability onset date of August 1, 2013. He completed high school, and has work experience as a cashier/checker, a fast-food worker, a laborer, and a salesperson. Starting in October 2007, Loree was employed as a combat engineer in the military. (AR 69-70.) He was stationed in Iraq from June 2008 through June 2009 and in Afghanistan from March 2011 through April 2012. (AR 3302, 3305, 3307.)

         Loree suffers from many impairments, several of them caused by explosions of improvised explosive devices (IEDs) during his deployment in Iraq. His most debilitating physical impairments are back pain, shoulder and elbow pain, knee pain, traumatic brain injury (TBI), hearing loss, sleep problems, and headaches. He uses hearing aids, wears a knee brace, and takes over a dozen medications. (AR 3323.) He testified that these medications cause many side effects, including loss of appetite, headaches, constipation, diarrhea, and problems concentrating and focusing. (AR 65-66). Loree's most debilitating mental impairments are posttraumatic stress disorder (PTSD), depression, anxiety, and anger. His PTSD symptoms include flashbacks and nightmares, largely resulting from his 2008-2009 deployment in Iraq where he witnessed, among other things, the death of his close friend in combat in October 2008 (AR 3302-03, 3313), and where he was “blown up by a rocket” while on duty on the border of Iran in April 2009 (AR 3302, see AR 3321-22).[1]

         Loree has difficulty dealing with people and does not like to go out in public. He uses a service dog to help with his anxiety and other PTSD symptoms. He has been diagnosed with alcoholism, but he testified at the first administrative hearing that he stopped drinking in December 2013. (AR 3311.) In July 2014, the Department of Veterans Affairs (VA) assigned Loree a total combined rating for service-connected disabilities of 90%, based on his impairments of PTSD, headaches, lumbar spondylosis, right acromioclavicular strain, right lateral epicondylitis, right knee patellofemoral syndrome, tinnitus, gastroesophageal reflux disease, TBI, and right L-5 radiculopathy. (AR 3195; see 3172-3206.)

         Loree lives in an apartment with his girlfriend, their twin toddlers, and his service dog. (AR 246, 3312.) At the time of the first administrative hearing (September 2014), his twins had just been born: one was at home and the other was in the hospital neonatal intensive care unit where Loree visited every three hours to feed him. By the time of the second hearing (December 2014), both babies were at home and Loree was caring for them on Monday, Wednesday, and Friday nights. (AR 59.) Loree also shares joint custody of three additional children-who were ages one, seven, and ten, respectively, in September 2014-with his ex-wife. (AR 3312.) He sees these children every other weekend and summers. (Id; see also AR 3313.) When Loree has the three older children for a weekend, his daughter, his girlfriend, and his mother help him care for the younger children, cook, and clean. (AR 3313.)

         In April 2014, Loree filed an application for DIB, alleging that, starting on August 1, 2013, he has been unable to work due to lower back pain, erectile dysfunction, loss of hearing, PTSD, and TBI. (AR 219, 233.) Loree's application was denied initially and upon reconsideration, and he timely requested an administrative hearing. On September 24, 2014, Administrative Law Judge (ALJ) Jennifer Gale Smith conducted a hearing on Loree's application. (AR 3293-32.) Loree appeared and testified, and was represented by counsel. Among other things, Loree testified that he is unable to work because he cannot stand or sit for prolonged periods due to back, knee, and foot pain; he has trouble concentrating and talking to people; and his medications make him sleepy. (AR 3328-29.) On December 2, 2014, the ALJ held a supplemental hearing to obtain testimony from a vocational expert (VE). (AR 54-77.) On January 15, 2015, the ALJ issued a decision finding that Loree was not disabled under the Social Security Act from his alleged disability onset date through the date of the decision. (AR 24-47.) Soon thereafter, the Appeals Council denied Loree's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Having exhausted his administrative remedies, Loree filed the Complaint in this action on November 30, 2015. (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 Smith first determined that Loree had not engaged in substantial gainful activity since his alleged disability onset date of August 1, 2013. (AR 27.) At step two, the ALJ found that Loree had the following severe impairments: diffuse disc bulges at ¶ 1-2 through L3-4 with minimal thecal sac compression, diffuse disc bulge and small central disc protrusion at ¶ 5-S1 with radiculopathy, lumbar spondylosis, post-concussion syndrome, headaches, alcohol dependence, PTSD, mild TBI, adjustment disorder with anxiety and depression, hearing loss with tinnitus, right acromioclavicular strain, right shoulder pain, right epicondylitis, and right knee patellofemoral syndrome. (Id.) Conversely, the ALJ found that Loree's erectile dysfunction, gastroesophageal reflux disease, and attention deficit hyperactivity disorder were either nonsevere or not medically determinable impairments. (AR 28.) At step three, the ALJ determined that none of Loree's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 28-34.)

         Next, the ALJ determined that Loree had the RFC to perform “light work, ” as defined in 20 C.F.R. § 404.1567(b), except as follows:

[Loree] should not climb ladders, ropes, [or] scaffolds, kneel, crouch, and crawl; [he] can occasionally climb ramps and stairs, balance, and stoop; [he] can frequently reach; [he] is limited to simple, routine, repetitive tasks; [he] should work in a low-stress job, defined as occasional decision-making, occasional judgment required, and occasional changes in the work setting; [he] should have occasional contact with co[]workers, supervisors, and the public; [he] should work at goal-oriented work and not production-pace rate work; [he] should be able to change positions every [30] minutes, but [he] could stay on[]task [at] the workstation during the position change; [he] should not work in a noise ...

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