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Montgomery v. Berryhill

United States District Court, D. Vermont

May 18, 2017

Rita Rae Montgomery, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.

          OPINION AND ORDER (DOCS. 10, 18)

          John M. Conroy United States Magistrate Judge.

         Plaintiff Rita Rae Montgomery 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 Montgomery's motion to reverse the Commissioner's decision (Doc. 10), and the Commissioner's motion to affirm the same (Doc. 18). For the reasons stated below, Montgomery's motion is GRANTED, the Commissioner's motion is DENIED, and the matter is REMANDED for further proceedings and a new decision.


         Montgomery was 43 years old on her alleged disability onset date of January 1, 2011. She is married and has two adult children. (AR 290.) She has a high school education (AR 36, 214), and worked as a cashier and a baker at a supermarket from 1999 through 2000 and 2007 through 2011 (AR 37, 41, 201, 220). From approximately 2001 through 2006, she stayed home to care for her sick husband. (AR 37-38, 41, 201.)

         Montgomery's physical and mental impairments caused her to gradually cut back her hours working in the bakery at a Shaw's supermarket until she eventually could no longer do the job and she stopped working on October 31, 2011. (AR 41-42, 213, 221.) Montgomery testified at the administrative hearing that she is unable to work because she has a bad back; she cannot sit or stand for very long; and she cannot walk far before having to rest. (AR 38.) She stated that she is “in constant pain all the time” (AR 42; see also AR 22 (“in constant pain”)), and “the more [she] do[es], the more it hurts” (AR 42-43). Montgomery explained as follows in a January 2013 Function Report: “Between [f]ibromyalgia, [d]epression, [and] [d]egenerative [d]isc [d]isease[, ] I am in constant pain. I can't stand very long [and] I can't sit very long.” (AR 236.) She states that her only comfortable position is lying down. (AR 38, 229.) Medications, especially Lyrica, help with her pain, as does using a TENS unit. (AR 44-49.)

         In addition, Montgomery testified that she cannot concentrate for more than 5-10 minutes; she is “constantly distracted” to the point where it is difficult to have a conversation; and she is “very snappy.” (AR 43.) On a typical day, Montgomery sometimes showers (depending on how tired she is), goes on the computer, uses her kindle, watches movies, knits, does some household chores (unloads the dishwasher and does a load of wash) and cleaning (with pain, and she needs to sit for 15-20 minutes after), lies down periodically, feeds and throws the ball for her dog, and occasionally does errands with her husband. (AR 39, 230.)

         In December 2012, Montgomery filed her application for disability insurance benefits. (AR 92.) Therein, she alleges that she stopped working on October 31, 2011 due to depression, [2] back pain, right knee pain, and hypothyroidism. (AR 37, 213.) Her application was denied initially and upon reconsideration, and she timely requested an administrative hearing. On July 23, 2014, Administrative Law Judge (ALJ) Thomas Merrill conducted a hearing on the disability application. (AR 32-61.) Montgomery appeared and testified, and was represented by counsel. A vocational expert also testified at the hearing. On October 7, 2014, the ALJ issued a decision finding that Montgomery was not disabled under the Social Security Act from her alleged disability onset date through the date of the decision. (AR 17-26.) Thereafter, the Appeals Council denied Montgomery's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Having exhausted her administrative remedies, Montgomery filed the Complaint in this action on May 10, 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” (SGA). 20 C.F.R. § 404.1520(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). 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). 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). 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). Finally, at the fifth step, the ALJ determines whether the claimant can do “any other work.” 20 C.F.R. § 404.1520(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 Montgomery has engaged in SGA as an apartment rental agent since her alleged disability onset date of January 1, 2011, and thus “is not eligible for benefits.” (AR 20.) The ALJ explained that Montgomery “testified that she received and recorded payments and also paid bills related to renting out three apartments that [she] and her husband own, ” and that “[m]edical records also indicated that [Montgomery] and her husband cleaned the apartments.” (Id.) The ALJ continued: “[Montgomery] testified [that] she and her husband received about $4, 200 in rental income from the apartments per month, although she said they were not always rented out.” (Id.) Despite finding that Montgomery engaged in SGA during the alleged disability period, the ALJ made an “alternative analysis” (id.), stating: “the analysis will continue through Step 4 of the sequential evaluation process” (AR 19).

         At step two, the ALJ found that Montgomery had the severe impairments of a spine disorder and fibromyalgia. (AR 20.) Conversely, the ALJ found that Montgomery's affective disorder was nonsevere. (AR 20-21.) At step three, the ALJ determined that none of Montgomery's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 21-22.) Next, the ALJ determined that Montgomery had the RFC to perform “the full range of light work, ” as defined in 20 C.F.R. § 404.1567(b). (AR 22.) Given this RFC, the ALJ found that Montgomery was capable of performing her past relevant work as a cashier and a bakery sales clerk. (AR 25-26.) The ALJ further noted that, with a full light work capacity, Montgomery “is deemed not disabled under Medical Vocational Rule 202.13-202.15.” (AR 26.) The ALJ concluded that Montgomery had not been under a disability from the alleged onset date of January 1, 2011 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).


         Montgomery argues that the ALJ made the following errors in his decision denying disability: (1) finding that Montgomery engaged in SGA during the alleged disability period; (2) failing to consider if Montgomery had any 12-month period of disability prior to July 2013, when her back pain improved; (3) assessing Montgomery as only partially credible; and (4) giving little weight to the opinions of treating nurse practitioner (NP) Lucy VanHollebeke, RN, FNP. (See Doc. 10-1.) In response, the Commissioner asserts that, even if the ALJ erred in his step-one determination that Montgomery engaged in SGA, the error was harmless, and the remainder of the decision is supported by substantial evidence and complies with the applicable legal standards. (See Doc. 18.)

         I. Substantial ...

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