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Kelley v. Berryhill

United States District Court, D. Vermont

June 26, 2017

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

          OPINION AND ORDER (DOCS. 5, 8)

          Geoffrey W. Crawford, Judge United States District Court.

         Plaintiff David Lee Kelley brings this action under 42 U.S.C. § 405(g), requesting review and remand of the decision of the Commissioner of Social Security denying his application for a period of disability and disability insurance benefits (DIB) and for supplemental security income (SSI). (Doc. 3.) Currently pending is Mr. Kelley's motion to reverse the decision of the Commissioner (Doc. 5) and the Commissioner's motion to affirm (Doc. 8). For the reasons stated below, Mr. Kelley's motion is GRANTED, the Commissioner's motion is DENIED, and the matter is REMANDED for further proceedings and a new decision.


         Mr. Kelley was 58 years old on his alleged disability onset date of October 18, 2012. He testified that he was working full-time in September 2012, but he stopped working because of pain in his eye and his head. (AR 32.) His right eye was removed on October 4, 2012 due to chronically untreated glaucoma. (See AR 32, 664, 667, 849.) On October 18, 2012, he suffered a heart attack and underwent a stent procedure. (See AR 32, 332, 342, 508, 582.) Dr. David Bourgeois, who has been treating Mr. Kelley since October 3, 2012, stated in a February 9, 2015 letter that after the eye operation, Mr. Kelley "has had a cascade of medical decompensation with fatigue and lack of endurance persisting despite stabilization of his medical problems." (AR 849.) Other medical problems mentioned in the record include (but are not limited to) diabetes (diagnosed at the time he was admitted for the heart attack) (AR 35, 349), iron deficiency anemia (AR 41, 829), and low back pain (sometimes referred to in the record as lumbago) (AR 30, 41, 830). He smokes about 50 packs of cigarettes per year, which medical notes suggest may be associated with chronic obstructive pulmonary disease (COPD). (AR 786.)

         Mr. Kelley completed school up to the 10th grade. (AR 29.) He previously worked for 17 years doing machine maintenance for Tillotson Healthcare in New Hampshire. (See AR 32, 210.) Then, between 2004 and September 2012, he worked full-time for several different companies, including work operating a mold press to make helmets, automotive mechanic work, quality control inspecting helmets, and operating a stapler machine. (AR 33-34, 211.) After his eye procedure and heart attack in October 2012, he was on short-term and long-term disability. (AR 34.) Then, through an organization that helps people over age 55, he began doing part-time janitorial work (20 hours per week) at the municipal building in Newport, Vermont. (AR 37.)

         In an adult function reported dated June 21, 2013, Mr. Kelley stated that he does not see as well as he used to, that he cannot stand for eight hours anymore, that he gets tired very easily, and that he becomes dizzy when he gets up from sitting too quickly. (AR 225.) He states that in a typical day he tests his blood sugar, has breakfast, goes for a half-mile walk, takes care of his Anemia is "[a]ny condition in which the number of red blood cells/mm, the amount of hemoglobin in 100 mL of blood, and/or the volume of packed red blood cells/100 mL of blood are less than normal." Stedman 's Medical Dictionary 35950 (WL updated Nov. 2014) (footnote omitted). "Anemia is frequently manifested by pallor of the skin and mucous membranes, shortness of breath, palpitations of the heart, soft systolic murmurs, lethargy, and tendency to fatigue." Id. dog, works around the house, takes a nap, and watches television. (AR 226.) Since he began the janitorial job, he spends mornings working at the municipal building and naps in the afternoon. (AR 30-31.)

         Mr. Kelley's janitorial work consists of mopping and emptying small trash cans in offices. (AR 30, 38.) Another janitor takes care of the bigger trash cans and the harder mopping. (AR 38.) Mr. Kelley testified that in his four-hour workday, he takes 10-20 breaks, each lasting five to ten minutes, because he is "just plain tired all the time" and because his lower back hurts. (AR 30, 37-38.) He also testified that he misses work a couple of days per month because he is tired and doesn't feel well. (AR 39.) He makes up for missed days by working longer hours, but when he does that, he naps for an hour or an hour and a half longer in the afternoons. (Id.)

         Mr. Kelley filed applications for DIB and SSI in summer 2013. (AR 191, 198.) The claims were denied initially on October 15, 2013 (AR 60, 71), and on reconsideration on January 10, 2014. (AR 85, 97.) He requested a hearing, and Administrative Law Judge Thomas Merrill conducted an administrative hearing on February 18, 2015. (AR 26-50.) Mr. Kelley testified at the hearing, where he was represented by Attorney James Torrisi. Vocational Expert (VE) James Parker also testified.

         On March 10, 2015, the ALJ issued a decision concluding that Mr. Kelley has not been under a disability as defined in the Social Security Act from October 18, 2012 through the date of the decision. (AR 9-20.) Mr. Kelley appealed, and on May 23, 2016, the Appeals Council denied his request for review. (AR 1.) Mr. Kelley filed his complaint in this case on July 11, 2016. (Doc. 3.)

         ALJ Decision

         Social Security Administration regulations set forth a five-step, sequential evaluation process to determine whether a claimant is disabled. Mclntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). First, the Commissioner considers "whether the claimant is currently engaged in substantial gainful activity." Id. Second, if the claimant is not currently engaged in substantial gainful activity, then the Commissioner considers "whether the claimant has a severe impairment or combination of impairments." Id. Third, if the claimant does suffer from such an impairment, the inquiry is "whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments." Id. Fourth, if the claimant does not have a listed impairment, the Commissioner determines, "based on a 'residual functional capacity' assessment, whether the claimant can perform any of his or her past relevant work despite the impairment." Id.

         Finally, if the claimant is unable to perform past work, the Commissioner determines "whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience." Id.; see 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proving his case at steps one through four. Mclntyre, 758 F.3d at 150. 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) (per curiam).

         The ALJ found at step one that Mr. Kelley has not engaged in substantial gainful activity since October 18, 2012, the alleged onset date. (AR 11.) At step two, the ALJ found that Mr. Kelley has the severe impairments of glaucoma status post right eye removal, and diabetes mellitus. (AR 12.) The ALJ noted that other diagnoses appear in the record, and specifically mentioned Mr. Kelley's history of heart disease and low back pain, but did not find any impairments to be severe aside from the eye removal and the diabetes. (See id.) At step three, the ALJ concluded that Mr. Kelley does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 13.)

         Next, the ALJ determined that, Mr. Kelley has the residual functional capacity (RFC) to perform "a full range of work at all exertional levels but with the following nonexertional limitations: he has monocular vision, but he retains the ability to avoid ordinary hazards in the workplace." (Id.) At step four, the ALJ concluded that Mr. Kelley is capable of performing past relevant work as an automotive mechanic, molder, and helmet inspector. (AR 19.) According to the ALJ, those jobs "do not require the performance of work-related activities precluded by the claimant's residual functional capacity." (Id.) The ALJ accordingly did not reach step five, and concluded that Mr. Kelley has not been under a disability from October 18, 2012 through the date of the decision. (AR 20.)

         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. Kelley argues that the ALJ's decision should be reversed for payment of benefits or for another hearing for two reasons: (1) the ALJ erred in his evaluation of medical opinion evidence including the opinion of treating physician Dr. Bourgeois, and (2) substantial evidence does not support the ALJ's finding that Mr. Kelley's statements regarding his symptoms were "not entirely credible." (See Doc. 5-1 at 1.) The Commissioner maintains that ...

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