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New v. Berryhill

United States District Court, D. Vermont

February 8, 2017

MATTHEW NEW, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          OPINION AND ORDER (DOCS. 6, 7)

          Geoffrey W. Crawford, Judge.

         Plaintiff Matthew New brings this action under 42 U.S.C. § 405(g), requesting reversal of the decision of the Commissioner of Social Security denying his applications for supplemental security income ("SSI") and disability insurance benefits ("DIB"). Pending before the court is Mr. New's motion to reverse the decision of the Commissioner (Doc. 6) and the Commissioner's motion to affirm (Doc. 7). For the reasons stated below, the court GRANTS Mr. New's motion, DENIES the Commissioner's motion, and REMANDS for further proceedings and a new decision.


         Mr. New was 24 years old on his alleged disability onset date of April 20, 2008. (AR 63.) On that date, he was working as a machine operator for Ellison Surface Technologies, and he walked off the job because of a conflict with a coworker that he says caused his social anxiety to reach a "climax." (AR 42, 233.) He has not looked for work since then. (AR 42.) He testified that, since April 20, 2008, his physical abilities have been limited because of his back. (AR 43.) He asserts that he has spinal fractures and five compression fractures. (AR 232.) Mr. New's fiancee, Stephanie Stewart, testified that she has been living with him since 2007, and that Mr. New has trouble staying in a still position, needs to shift his body every 15 to 20 minutes, and experiences increasing back pain the longer he stays still. (AR 50.) She further testified that mornings are particularly difficult for Mr. New, and that it takes one to two hours for him to be able to move somewhat freely each morning. (AR 50-51.)

         Mr. New testified that he has social anxiety and other psychological problems that limit his ability to work. (AR 45, 47.) He also asserts that he has depression. (AR 232.) Ms. Stewart testified that Mr. New "has trouble speaking with anybody that's outside of his very small circle"; that he gets "extremely anxious and nervous and fidgety"; and that he has "trouble expressing himself directly or indirectly." (AR 51.) She further testified that Mr. New needs prompting to initiate tasks, and that he has trouble finishing tasks because he gets distracted easily. (Id.)[2]

         Mr. New dropped out of school in the tenth grade; he has not attempted to obtain a GED. (AR 41-42.) He has previous work experience as a circuit board assembler and as a dishwasher. (AR 42; AR 283.) He is the father of two young children. He testified that on a typical day he stays home and tries to take care of them. (AR 46.) He testified that he tries to do some housework, as best he can, but that he does not do any yard work. (Id.) He plays chess on the computer occasionally. (AR 47.)

         An August 9, 2012 function report-filled out by Ms. Stewart-indicates that Mr. New's daily activities involve caring for the two children and for pets; that he has no problems with personal care other than needing reminders to take medication; that he can prepare simple meals daily; and that, with direction, he can do light repairs and light cleaning around the house, provided that he takes breaks. (AR 267-69.)[3] The function report further indicates that Mr. New is able to drive a car and go shopping, but that he is unable to manage money or remember due dates or deadlines. (AR 270.) According to the report, Mr. New used to enjoy watching TV, playing video games, hiking, biking, and canoing, but the only thing he is able to do regularly now is spend time with the two children. (AR 271.) His social activity is limited to spending time with his family; he reports being anti-social and having no friends. (AR 271-72.) According to the function report, Mr. New's physical and other abilities are limited; he can pay attention for only five minutes, has difficulty following spoken instructions, handles stress and changes in routine poorly, and fears meeting people and going to crowded places. (AR 272-73.)

         Mr. New protectively filed applications for DIB and SSI in April 2012. (AR 202, 206.) His claims were denied initially on June 6, 2012 (AR 121, 124), and upon reconsideration on September 7, 2012 (AR 130, 137). He requested a hearing (AR 144), and Administrative Law Judge (ALJ) Thomas Merrill conducted an administrative hearing on May 19, 2014. (AR 38-62.) Mr. New and Ms. Stewart both testified at the hearing, where Mr. New was represented by Attorney Bryden F. Dow. Vocational Expert (VE) Christine Spaulding also testified.

         On June 25, 2014, the ALJ issued a decision finding Mr. New not disabled under the Social Security Act from his alleged onset date of April 20, 2008 through the date of the decision. (AR 20-32.) Mr. New appealed, and on February 10, 2016 the Appeals Council denied his request for review. (AR 1.) Mr. New filed his Complaint on April 11, 2016. (Doc. 3.)

         ALJ Decision

         The ALJ is required to follow the five-step process in determining a claimant's disability. Machia v. Astrue, 670 F.Supp.2d 326, 333 (D. Vt. 2009) (internal citation omitted); see 20 C.F.R. §§ 404.1520; 416.920. The answer at each step determines if the next step need be addressed. Machia, 670 F.Supp.2d at 330. At the first step the ALJ determines if the claimant has engaged in Substantial Gainful Activity since the alleged onset date of his disability. Id. If the answer is no, step two then asks if the claimant has any "impairments" that are "severe." Id.

         If there is one or more severe impairment, step three evaluates whether any of these impairments meet the listed impairments in Appendix 1 of the regulations. If an impairment meets the listing the claimant is deemed disabled. If it does not, step four asks whether the claimant retains the residual functional capacity ("RFC") to do his past relevant work. Id. If the claimant can no longer do his past relevant work, step five asks whether the claimant is able to do any job available in significant numbers in the national economy. Id. "The claimant bears the burden of proving his case at steps one through four, ... 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.'" Larkin v. Comm'r of Soc. Sec, No. 2T0-CV-291, 2011 WL 4499296, at *2 (D. Vt. Sept. 27, 2011) (quoting Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)).

         The ALJ found at step one that Mr. New had not engaged in substantial gainful activity since April 20, 2008, the alleged onset date of disability. (AR 22.) At step two, the ALJ found that Mr. New had no medically determined mental health condition or physical condition to support his Title II (DIB) claim. (AR 23.) The ALJ reasoned that Mr. New met the insured status requirements for DIB through December 31, 2010, but that he had not established any mental health condition or physical condition prior to that date. (See AR 20, 22-23.) Also at step two, the ALJ found that, for Mr. New's Title XVI (SSI) claim, he did have medically determinable impairments consisting of back pain status post spinal fractures, social anxiety, and depression. (AR 22.) But the ALJ concluded that none of Mr. New's impairments, alone or in combination, constituted a "severe" impairment. (AR 23-32.)

         The ALJ also found that, under the Medical Vocational Grid Rules, 20 C.F.R. Part 404, Subpart P, Appendix 2, Mr. New "is not disabled under all subcategories of a younger individual with a medium work capacity, capable of perform[ing] all medium, light, and sedentary work." (AR 28.) The ALJ further found that, even assuming severe mental impairments, Mr. New "would be able to perform the entire unskilled occupational base." (See AR 31.)

         Standard of Review

         Disability is defined by the Social Security Act in pertinent part 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). Under the Act, a claimant will only be found disabled 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." Id. § 423(d)(2)(A).

         In considering the Commissioner's disability decision, the court conducts '"a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision and if the correct legal standards have been applied.'" Brault v. Soc. Sec. Admin., Comm V, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)); see also 42 U.S.C. § 405(g). "Substantial evidence means 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Poupore, 566 F.3d at 305 (quoting Consol. Edison Co. of N.Y. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229 (1938)). The "substantial evidence" standard is even more deferential than the "clearly erroneous" standard; facts found by the ALJ can be rejected "only if a reasonable factfinder would have to conclude otherwise.'" Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)). The court is mindful 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).


         Mr. New contends that the ALJ erred in four ways: (1) by setting his own expertise against that of physicians who provided opinions; (2) by failing to properly weigh treating source statements; (3) by not following the factors in 20 C.F.R. § 404.1527(c)(2); and (4) by finding that Mr. New had no severe impairments at step two of the analysis. (See Doc. 6.) The Commissioner asserts that each of Mr. New's four points raises the same argument: that the treating-source opinions of Dr. Michael Scovner (Mr. New's primary-care provider since childhood) and Jacquelyn E. Bode, M.Ed, (a psychologist who treated him in 2014), establish that Mr. New had severe physical and mental impairments, and that the ALJ erred in failing to give more weight to those opinions. (Doc. 7 at 11.) The Commissioner maintains that substantial evidence supports the ALJ's decision, and that the correct legal standards were applied.

         I. Severity

         An impairment is "severe" if it "significantly limit[s]" a claimant's "physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1521(a), 416.921(a). "Basic work activities" are the "abilities and aptitudes necessary to do most jobs, " such as physical functions, ability to see, hear, and speak, to understand and carry out instructions, and to use judgment and respond appropriately to supervision and co-workers. See Id. §§ 404.1521(b), 416.921(b). "[T]he standard for a finding of severity under Step Two of the sequential analysis is de minimis and is intended only to screen out the very weakest cases." Mclntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014). Thus, "[a] claim may be denied at step two only if the evidence shows that the individual's impairments, when considered in combination, are not medically severe, i.e., do not have more than a minimal effect on the [claimant's] physical or mental ability(ies) to perform basic work activities." SSR 85-28, 1985 WL 56856, at *3 (1985).

         A. Back Pain

         Mr. New maintains that the ALJ erred by failing to find that his back pain is a "severe" impairment. The ALJ gave "little weight" to the treating source statement completed by Mr. New's treating physician, Dr. Scovner, on May 2, 2014. (AR 27.) According to the ALJ, the medical records do not support the limitations that Dr. Scovner described. The Commissioner maintains that the ALJ provided good reasons for not according Dr. Scovner's opinion significant weight.

         1. Medical Opinions

         As noted above, Dr. Scovner has been Mr. New's primary care physician since childhood. In his May 2, 2014 statement, Dr. Scovner indicated that Mr. New's diagnoses include low back pain and thoracic back pain, and that his prognosis is "poor." (AR 594.) He opined that, because of Mr. New's symptoms, he would be "off task" for two hours in an eight-hour work day. (AR 595.) He assessed limited abilities to lift and carry, and that in an eight-hour work day, Mr. New could only sit for a cumulative total of four hours and could only stand and walk for two hours. (Id.) He opined that, in an eight-hour work day, Mr. New would need to get up and walk for 10 minutes every half hour; that he would need to take 20-minute unscheduled breaks every hour; and that he would need to lie down for about a half hour out of every four hours. (AR 596.) Dr. Scovner also opined that Mr. New is limited to 15 minutes of overhead reaching in an eight-hour work day, and five minutes of stooping or crouching. (AR 596-97.) According to Dr. Scovner, Mr. New would likely be absent from work for more than four days per month due to his impairments, treatment, or symptom flare-ups. (AR 598.) Dr. Scovner indicated that the earliest date for the limitations he described was April 20, 2008. (Id.)

         Under the treating-physician rule, "the opinion of a claimant's treating physician as to the nature and severity of the impairment is given 'controlling weight' so long as it 'is well-supported by medically-acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (alteration in original) (quoting 20 C.F.R. § 404.1527(c)(2)). Even when a treating physician's opinion is not given controlling weight, it is still entitled to some weight because treating physicians are "likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence" 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). If a treating physician's opinion is not given controlling weight, the weight to be given the opinion depends on several factors: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the relevant evidence supporting the opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is of a specialist; and (6) other factors which tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). The Commissioner is required to give "good reasons" for the weight given to a treating source's opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

         As to the ALJ's determination at step two, the court concludes that the ALJ erred insofar as he gave Dr. Scovner's opinion insufficient weight to support a finding of "severe" back pain. The ALJ reasoned that Dr. Scovner's own medical records do not support the extensive physical limitations described in his May 2, 2014 opinion. (AR 27.) But, as described ...

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