United States District Court, D. Vermont
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, ...