Evaline v. Commissioner of Social Security

          OPINION AND ORDER (DOCS. 12, 13)

          JOHN M. CONROY, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Evaline M. 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) and Supplemental Security Income (SSI). Pending before the Court are Plaintiff's motion to reverse the Commissioner's decision (Doc. 12), and the Commissioner's motion to affirm the same (Doc. 13). For the reasons stated below, Plaintiff's motion is GRANTED, the Commissioner's motion is DENIED, and the matter is REMANDED for further proceedings and a new decision.

         Background

         Plaintiff was 51 years old on her alleged disability onset date of December 2, 2011. She has a GED and a bachelor's degree, and experience working as a secretary and a retail sales associate. She is single, and lives with her adult son.

         Plaintiff suffers from back pain, leg pain, right shoulder pain, carpal tunnel syndrome (CTS), cardiopulmonary obstructive disorder (COPD), incontinence, depression, and anxiety. She has had surgery on her shoulder and multiple surgeries on her hands. She uses a prescribed cane every day because she feels unstable when standing or walking. Her daily activities consist of cooking simple meals, watching movies, and reading. She spends more than half of each day laying down due to pain and fatigue resulting from prescribed medications.

         In December 2011, Plaintiff filed her first claim for SSI and DIB, alleging disability beginning on April 30, 2008. (AR 81.) The claim was denied initially and upon reconsideration; and on June 26, 2013, Administrative Law Judge (ALJ) Matthew Levin issued an unfavorable decision, finding that Plaintiff “has not been under a disability . . . from April 30, 2008, through the date of this decision.” (Id.; AR 89.) In August 2014, the Appeals Council denied Plaintiff's request for review of ALJ Levin's decision, making the decision final. (AR 95-97.) Plaintiff did not appeal the decision.

         Approximately six months later, in February and March 2015, Plaintiff filed her second claim for SSI and DIB, this time alleging disability beginning on December 2, 2011. (AR 250-60.) In this more recent claim-which is the subject of the instant lawsuit--Plaintiff asserts that she stopped working on April 5, 2008, and has been unable to work since then, due to degenerative disc disease, arthritis, gastroesophageal reflux disease, CTS, sleep apnea, and COPD. (AR 270.) Like her first claim, this one was denied initially and upon reconsideration. On July 7, 2016, ALJ Joshua Menard conducted a hearing on the claim. (AR 36-77.) Plaintiff appeared and testified, as did a vocational expert (VE). At the hearing, Plaintiff's counsel: (a) requested that ALJ Levin's June 2013 decision be reopened under 20 C.F.R. §§ 404.988(c)(8) and 416.1489(a)(3) due to error on its face, ^[1] and (b) objected to four exhibits containing Disability Determination Explanations prepared by agency medical consultants on the grounds that they were based on records not in evidence. (AR 40-41.)

         On August 15, 2016, ALJ Menard issued a decision denying Plaintiff's request to reopen the 2013 decision (AR 20), overruling Plaintiff's objection to the four Disability Determination Explanations (id.), and finding that Plaintiff “has not been under a disability . . . from December 2, 2011, through the date of this decision” (AR 21, 29). Thereafter, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Having exhausted her administrative remedies, Plaintiff filed the Complaint in this action on February 20, 2018. (Doc. 3.)

         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.” 20 C.F.R. §§ 404.1520(b), 416.920(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), 416.920(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), 416.920(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), 416.920(e), 416.945(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), 416.920(f). Finally, at the fifth step, the ALJ determines whether the claimant can do “any other work.” 20 C.F.R. §§ 404.1520(g), 416.920(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, in his August 2016 decision, ALJ Menard first determined that Plaintiff had not engaged in substantial gainful activity since her alleged disability onset date of December 2, 2011. (AR 23.) At step two, the ALJ found that Plaintiff had the severe impairments of degenerative disc disease, obesity, and COPD.^[2] (Id.) Conversely, the ALJ found that Plaintiff's CTS, sleep apnea, disorder of the gastrointestinal system, anxiety, depression, and incontinence were nonsevere. (Id.) At step three, the ALJ determined that none of Plaintiff's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 24.) Next, the ALJ determined that Plaintiff had the RFC to perform “light work, ” as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), except as follows: “[Plaintiff] can frequently climb ramps and stairs, occasionally climb ladders, ropes, and scaffolds, frequently stoop, occasionally crouch, and occasionally crawl. She can have frequent exposure to dusts, odors, fumes, and pulmonary irritants.” ^[3] (AR 24.) Given this RFC, ALJ Menard found at step four that Plaintiff was capable of performing her past relevant work as a secretary.^[4] (AR 29.) The ALJ thus concluded that Plaintiff had not been under a disability from her alleged onset date of December 2, 2011 through the date of the decision, August 15, 2016.^[5] (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, ...