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Morrow v. Berryhill

United States District Court, D. Vermont

January 30, 2017

Laurie Morrow, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.

          OPINION AND ORDER (Docs. 7, 8)

          John M. Conroy United States Magistrate Judge

         Plaintiff Laurie Morrow 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 application for disability insurance benefits (DIB). Pending before the Court are Morrow's motion to reverse the Commissioner's decision (Doc. 7) and the Commissioner's motion to affirm the same (Doc. 8). For the reasons stated below, Morrow's motion is GRANTED, the Commissioner's motion is DENIED, and the matter is REMANDED for further proceedings and a new decision.


         Morrow was 58 years old on her alleged disability onset date of November 1, 2011. She attended college at the University of Vermont and thereafter obtained an M.A. and a Ph.D. in English from the University of Kansas. (AR 30-31.) She was an English Professor at Louisiana State University from approximately 1981 until 2000. (AR 31, 165.) Soon thereafter, she and her husband moved to Vermont, seeking better medical care for their autistic son. (AR 31.) Since 2001, Morrow has held various jobs, including as a radio talk show creator and host, a public relations representative, a grant writer, a fundraiser, and an adjunct professor at St. Michael's College. (AR 31-33, 41, 165.) She has also done volunteer work with several groups, including the Heritage Foundation, Washington County Mental Health Services, and the Vermont Autism Task Force.

         In March 2013, Morrow filed her DIB application, alleging that she has been unable to work since November 1, 2011, due to anxiety with panic attacks, attention deficit disorder (ADD), depression, insomnia, a thyroid condition, transient ischemic attack, high blood pressure, and spinal arthritis. (AR 147-48.) Morrow testified at the administrative hearing that she is unable to work mostly because of her ADD, depression, anxiety, memory problems, back pain, and shoulder pain. (AR 34, 36-39.) She stated that she wants to work and she makes an effort to keep her mind active, but she cannot work fast enough; she is unable to meet deadlines; and she does not finish what she starts. (AR 34-36.) Morrow further stated that, in a typical day, she sleeps for 12 to 14 hours, attempts to do job search work, tries to write “something, ” sometimes makes dinner, and does volunteer work. (AR 35-36.)

         Morrow's disability application was denied initially and upon reconsideration, and she timely requested an administrative hearing. On September 17, 2014, Administrative Law Judge (ALJ) Thomas Merrill conducted a hearing on the application. (AR 27-43.) Morrow appeared and testified, and was represented by counsel. A vocational expert (VE) also testified at the hearing. A few months later, on December 8, the ALJ issued a decision finding that Morrow was not disabled under the Social Security Act from her alleged disability onset date through the date of the decision. (AR 13-22.) Thereafter, the Appeals Council denied Morrow's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-4.) Having exhausted her administrative remedies, Morrow filed the Complaint in this action on April 18, 2016. (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, although Morrow had engaged in “work-like activity” during the alleged disability period, she had not engaged in “substantial gainful activity.” (AR 15.) At step two, the ALJ found that Morrow had the following medically determinable impairments: “an ankle impairment; a back impairment; obstructive sleep apnea; transient ischemic attack; depression; anxiety; and attention deficit hyperactive disorder.” (Id.) Nevertheless, the ALJ determined that none of these impairments (alone or in combination) was severe, meaning they had not “significantly limited . . . [Morrow's] ability to perform basic work-related activities for 12 consecutive months” during the alleged disability period. (AR 16.) Without proceeding to the remaining steps of the five-step sequential evaluation, the ALJ concluded that Morrow had not been under a disability from her alleged disability onset date of November 1, 2011 through the date of the decision. (AR 22.)

         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. ...

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