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Wortman v. Berryhill

United States District Court, D. Vermont

September 5, 2017

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

          OPINION AND ORDER (DOCS. 15, 18)


         Plaintiff Joseph Wortman 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. Wortman's motion to reverse the Commissioner's decision (Doc. 15) and the Commissioner's motion to affirm (Doc. 18). For the reasons stated below, the court DENIES Mr. Wortman's motion to reverse and GRANTS the Commissioner's motion to affirm.


         Mr. Wortman, born in 1985, applied for SSI benefits on May 28, 2013, and for DIB benefits on June 7, 2013, alleging a disability onset date of June 20, 2012. (AR 11, 188, 190.) The claims were denied initially on August 8, 2013, and on reconsideration on October 11, 2013. (AR 11, 120, 128.) Mr. Wortman had a hearing before Administrative Law Judge ("ALJ") Paul Martin on December 2, 2014. (AR31.)

         At the hearing, Mr. Wortman testified that he had a high school diploma, but that he had learning disabilities and was placed in special education programs throughout his schooling. (AR 38.) He also had taken a few community college classes, where he received other accommodations based on his learning disabilities. (AR 38-39.)

         According to Mr. Wortman, his learning comprehension challenges are his biggest issue. (AR 46.) He testified that as a child he was diagnosed with Sotos Syndrome.[2] (AR 57.) He has trouble comprehending what he reads, and he cannot read more than a few pages without becoming bored and losing focus. (AR A6-A1.) He said that, in his previous position as an inventory manager, he could keep track of information between one quarter and one half of the time. (AR47.)

         Mr. Wortman also testified that he "get[s] an electrical charge through [] my neck and into my brain and it messes me up a little." (AR 40.) He said that one of his doctors wishes to start him on a new medication for this issue. (AR 53.) He also complained that he has had trouble with his equilibrium. (AR 53.)

         Mr. Wortman testified that he suffers from depression and anxiety. He said that he typically simply stays at home and does not like to go anywhere. (AR 54.) He related an incident in the past week, in which, simply sitting in his apartment, he "felt like I couldn't breathe." (AR 55.) He said he has a friend who lives down the hall that he sees occasionally, but that he does not go out in public. (AR 54.) Large groups of people cause Mr. Wortman to become anxious, and he avoids going shopping at the supermarket during the day for this reason. (AR 72.) He says that he can get along with a small group of people. (AR 75.)

         Mr. Wortman also testified to physical impairments. He testified that he gets back spasms after standing for just a couple of minutes. (AR 58.) He also has nerve pain in one of his feet and that a doctor has prescribed an orthopedic shoe as a corrective, although he has not yet had an appointment to obtain the shoe. (AR 49-51.)

         With regard to current treatment, Mr. Wortman said that he currently sees his therapist every few weeks, takes Effexor for his depression and anxiety, and takes Mobic for back pain. (AR 55-56, 67.)

         Mr. Wortman testified that he is recently divorced, and that, while he lives by himself, his girlfriend provides daily assistance to him. (AR 39-40.) She typically does the driving, although Mr. Wortman drives occasionally. (AR 40.) Mr. Wortman's girlfriend also helps him with cooking and other chores. (AR 74.)

         Mr. Wortman also testified about his prior work history. (AR 41-45, 65-66.) He has worked as a security guard, a landscaper, a warehouse worker, a stock clerk, and an inventory clerk, among other positions. He was also briefly in the military, but he stated that he did not make it through basic training, and was discharged. (AR 48.)

         Vocational expert ("VE"), James Parker, also testified at the hearing. (AR 76-82.) The ALJ questioned the VE about whether Mr. Wortman had worked in his prior jobs long enough to become competent in them, and whether they required interaction with large groups or extensive reading. (AR 78-80.)

         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 must 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 o/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)).

         At step one, the ALJ determined that Mr. Wortman had not engaged in any substantial gainful activity since his alleged onset date, June 20, 2012. (AR 13.) At step two, he found that Mr. Wortman had the following severe impairments: Sotos syndrome with an anxiety disorder; a depressive disorder; a cognitive disorder; a learning disorder; and attention deficit disorder. (AR 13.) The ALJ concluded that none of Mr. Wortman's alleged physical impairments were severe. (AR 14.) At step three, the ALJ found that none of Mr. Wortman's impairments met or medically equaled a listed impairment. (AR 15.)

         Ahead of step four, the ALJ determined that Mr. Wortman had an RFC to perform a full range of work at all exertional levels, but with some non-exertional limitations. (AR 17.) Mr. Wortman was "limited to interacting with groups of no larger than 8 to 10 people and capable of engaging in only brief, superficial interaction with the general public." (Id.) He was also able "to read short, simple written instructions and otherwise be able to understand, remember, and carry out tasks involving four to five step instructions." (Id.) The ALJ noted that he was "able to maintain concentration, persistence, and pace for two-hour intervals throughout the course of an 8-hour workday and 40-hour workweek, " and was able to "adapt to routine workplace changes." (Id.)

         At step four, the ALJ found that, with this RFC, Mr. Wortman could perform some of his past relevant work, including his positions as a security guard, warehouse worker, stock clerk, and landscape laborer. (AR 21.) The ALJ therefore concluded that Mr. Wortman was not disabled and did not reach step five. (AR 22.)

         The Appeals Council denied review on June 29, 2016. (AR 1.) This case was filed on August 8, 2016. (Doc. 1.)

         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).

         When considering the ALJ'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 decision is subject to a factual review 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 fact[-]fmder."). "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. 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); see also, e.g., Johnson v. Comm'r of Soc. Sec, No. 2:13-cv-217, 2014 WL 2118444, at *3 (D. Vt. May 21, 2014).


         Mr. Wortman makes three arguments on appeal. First, he argues that the ALJ did not provide "good reasons" for discounting the opinions of treating sources and for according substantial weight to the opinions of other sources. (Doc. 15-1 at 8-11.) Second, he contends that the ALJ did not rely on a medical opinion to craft Mr. Wortman's RFC and instead improperly used his own lay knowledge. (Id. at 6-8.) Third, he asserts that the ALJ erred by failing to ask the vocational expert whether a hypothetical worker with all the limitations described in the RFC could perform his past work. (Id. at 12.)

         I. ...

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