United States District Court, D. Vermont
OPINION AND ORDER (DOCS. 6, 7)
Geoffrey W. Crawford, Judge.
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.
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.)
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.)
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.)
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.) 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.)
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.
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.)
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.
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.
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.)
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.)
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).
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).
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.
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).
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
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.)
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).
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 ...