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Jenifer S. v. Commissioner of Social Security

United States District Court, D. Vermont

January 4, 2019

Jenifer S. o/b/o Ronald S. deceased, Plaintiff,
Commissioner of Social Security, Defendant.

          OPINION AND ORDER, (DOCS. 10, 16)

          John M. Conroy United States Magistrate Judge

         Plaintiff Jenifer S. brings this action on behalf of Ronald S., deceased, 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 Ronald S.'s application for Disability Insurance Benefits (DIB).[1] Pending before the Court are Plaintiff's motion to reverse the Commissioner's decision (Doc. 10), and the Commissioner's motion to affirm the same (Doc. 16). Plaintiff has filed a Reply (Doc. 22), and the Commissioner has filed a Sur-Reply (Doc. 24). For the reasons stated below, Plaintiff's motion is GRANTED, in part; the Commissioner's motion is DENIED; and the matter is REMANDED for further proceedings and a new decision.


         Plaintiff was 50 years old on his amended alleged disability onset date of November 13, 2015. He died on November 27, 2017, while his disability application was pending. (Doc. 10-1 at 7, ¶ 36; see AR 8, 9 (indicting Plaintiff was diagnosed in November 2016 with Acute Lymphoblastic Leukemia, which is not an impairment at issue in this litigation).) He completed high school, and worked as a farmhand, a mail clerk, and a sales trainee. He was married and had six children, ranging in ages from seven to thirty as of April 2015, two of them living with him and his wife during the relevant period. (AR 140, 521, 589.)

         Plaintiff was incarcerated from March 2009 through July 2014. (AR 144, 325, 523.) Nonetheless, his earnings record showed self-employment in the years 2011, 2012, and 2013, and his receipt of almost $300, 000 in income during that time for his work with A&S Collection, his father's debt collection company. (AR 144-46.) At the administrative hearing, Plaintiff explained that this money was paid to him while he was incarcerated “so [his] wife and children had [a] means of surviving.” (AR 144.) He further explained that, even before he was incarcerated, when he was actually working at his father's company (from 2001 to 2009), although his job title was “manager, ” he “really didn't do a whole lot” there. (AR 145.) He explained that his father owned the company, and when his mother was diagnosed with cancer, his father asked him to help with the business, so Plaintiff took on the “manager” position (id.); but he wasn't really a manager, he just “kind of mingled around a lot, ” working in the mailroom, signing papers, and “every now and then [he] might make a phone call” (AR 146).

         Plaintiff's last job was as a trainee at Daedalus Solar Works, a solar paneling company, where Plaintiff worked from April to November 2015. (AR 141, 162, 381.) His job duties included riding around with a salesman who sought to sell solar panels to residential and commercial buyers. (AR 142-44.) Plaintiff was supposed to receive training for the job but he stated that “never happened” and he did not make any sales. (AR 143.) Plaintiff left work at Daedalus in November 2015 because of a scheduled operation on his foot. (AR 141-42.) He did not return to work after the operation because of “problems [he had] with the operation.” (AR 142.)

         Plaintiff's most significant impairments were psychiatric: posttraumatic stress disorder (PTSD), depression, and paranoid personality disorder, which allegedly resulted in Plaintiff not being able to respond appropriately and being unpredictable in the workplace. (AR 137-38.) Plaintiff testified at the administrative hearing that he had a “very hard time being around anybody” and he had “panic attacks” and anxiety, which caused him to feel angry and then to “shut down” for anywhere from two days to three or four weeks. (AR 150.) Plaintiff explained that, during and after his incarceration, he was unable to trust anyone and was fearful that someone might come up behind him and try to harm or kill him. (AR 160-61.) Noting that he was not taking any medications to address these mental impairments because he had tried “a couple” and “the effects weren't good, ” Plaintiff stated that he saw a therapist weekly for “well over a year” and then switched to “every three to four weeks.” (AR 151.)

         Plaintiff also suffered from physical impairments, including problems with his right foot, requiring surgery; arthritis; back and neck pain; and a pinched nerve in his neck causing tingling and numbness in his right finger and thumb and difficulty grasping objects. (AR 138-39, 152-54, 165-66.)

         On a typical day during the alleged disability period, Plaintiff would drink coffee, throw a load of laundry in the washing machine, try to watch a little TV, sit on the porch, pick up his youngest two children at school, and bring his children to soccer in the evenings. (AR 158-59.) He also mowed the lawn on occasion, prepared one or two meals each week, and attended church on Sundays. (AR 365, 367.) When he watched his children's soccer games, he would sit far away from everyone else, sometimes even staying in his truck in an attempt to avoid people. (AR 159-60.)

         In December 2014, Plaintiff filed an application for disability insurance benefits, claiming disability starting on September 2, 2009. (AR 279.) Plaintiff later amended his disability onset date to November 13, 2015, the date he left work at Daedalus Solar Works due to foot problems. (AR 136-37, 293.) In his application, Plaintiff alleged that he was unable to work due to back injuries including floating vertebrae and two herniated discs; pinched nerves in his hip, neck, and shoulder; tennis elbow; tendinitis in his knee and ankle; and rheumatoid arthritis. (AR 179.) In a July 2015 Function Report, Plaintiff added that his severe PTSD also prevented him from working. (AR 363.) And a few months later, in September 2015, Plaintiff amended his application to include allegations that he was unable to work due to PTSD and depression, claiming that these impairments had “escalated since [his] last contact with [the Social Security Administration].” (AR 375.) Plaintiff also noted at that time that he was scheduled to have foot surgery and knee surgery in the near future, and that he had recently had a four-day hospital stay for his severe pancreatitis. (Id.)

         Plaintiff's application was denied initially and upon reconsideration, and he timely requested an administrative hearing. On October 4, 2016, Administrative Law Judge (ALJ) Joshua Menard conducted a hearing on the application. (AR 131-74.) Plaintiff appeared and testified, and was represented by counsel. A vocational expert (VE) also testified at the hearing. On February 13, 2017, the ALJ issued a decision finding that Plaintiff was not disabled under the Social Security Act from his amended alleged disability onset date of November 13, 2015 “through the date of expiration of [Plaintiff's] insured status on December 31, 2015.” (AR 81.) Thereafter, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-7.) Having exhausted his administrative remedies, Plaintiff filed the Complaint in this action on January 19, 2018. (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.” 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]”).

         Before employing this analysis, ALJ Menard noted Plaintiff's testimony at the administrative hearing that he did not actually earn the income recorded on his Earnings Report between the years 2010 and 2013 because he was in prison during that time. (AR 72.) The ALJ stated that the issue “was referred back to the Field Office for evaluation regarding what impact, if any, . . . this would have on [Plaintiff's] date last insured, ” and the Field Office removed the unearned income posted to Plaintiff's earnings record. (Id.) This resulted in a recalculation of Plaintiff's date last insured (DLI), changing the date from December 31, 2018 to December 31, 2015. (AR 72-73 (citing AR 294-96).)

         The ALJ then proceeded with the five-step sequential analysis, first determining that Plaintiff had not engaged in substantial gainful activity since his amended alleged disability onset date of November 13, 2015. (AR 73.) At step two, the ALJ found that Plaintiff had the severe impairments of degenerative disc disease and osteoarthrosis. (Id.) Conversely, the ALJ found that Plaintiff's foot problems and mental impairments--including affective disorder, anxiety disorder, and substance abuse disorder--were nonsevere. (73-74.) At step three, the ALJ determined that none of Plaintiff's impairments, alone or in combination, met or medically equaled the severity of a listed impairment. (AR 75.)

         Next, the ALJ determined that Plaintiff had the RFC to perform “light work, ” as defined in 20 C.F.R. §§ 404.1567(b), except that Plaintiff “can lift and carry and push and pull 20 pounds occasionally and 10 pounds frequently[;] and he can sit, stand[, ] and walk for [six] hours in an [eight][-]hour day.” (AR 75.) Given this RFC, the ALJ found that Plaintiff was capable of performing his past relevant work as a mail clerk, i.e., “working in the large mailroom of a debt collections firm owned by his father.” (AR 81.) The ALJ concluded that Plaintiff had not been under a disability from the amended alleged disability onset date of November 13, 2015 through the newly assigned DLI of December 31, 2015. (Id.)

         Standard ...

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