United States District Court, D. Vermont
OPINION AND ORDER (DOCS. 9, 10)
Geoffrey W. Crawford, Chief Judge
Plaintiff
Frank G. brings this action under 42 U.S.C. § 405(g),
requesting reversal of the decision of the Commissioner of
Social Security denying his application for disability
insurance benefits (DIB).[1] (Doc. 1; Doc. 9 at 1.) Currently
pending is Plaintiffs motion to reverse the decision of the
Commissioner (Doc. 9) and the Commissioner's motion to
affirm (Doc. 10). For the reasons stated below, Plaintiffs
motion is GRANTED, and the Commissioner's motion is
DENIED.
Background
Plaintiff
was 50 years old on his alleged disability onset date of
February 1, 2014. (AR 64.) He states that he is unable to
work due to spinal stenosis and depression. (AR 187.)
Plaintiff
has a GED level of education. (AR 36, 188.) He lives with his
girlfriend and her mother. (AR 36.) He previously worked in
bridge construction and as a loader operator. (AR 46, 188,
194.) He was laid off from his job as a loader operator at
the end of 2013.
In
2013, Plaintiff sought medical advice for low back pain that
radiated into his legs, neck pain and stiffness, right
shoulder pain, weakness in his arms and fingers, and
headaches. (AR 44, 256.) He received discectomy and fusion
surgery at ¶ 5-6 and C6-7 on February 6, 2014. (AR
274-75.) Plaintiff testified that the surgery did not help
with his symptoms. (AR 45.) He testified that his headaches
start at the back of his head and radiate over the top of his
head, causing him to experience "a dull ache all day
long." (Id.) When asked whether certain
activities trigger or exacerbate these headaches, he replied,
"If I try to pick something heavy up, you know, just
picking stuff up, moving my neck all the time it makes my
arms weak." (Id.) Plaintiff also testified that
he suffers from back problems, including an inability to bend
over or stand up straight. (Id.) He testified that
he experiences pain in his lower back that radiates down his
leg, occasionally resulting in a "sharp pain" in
his knee that makes him fall, particularly on the stairs. (AR
45-46.) In a memorandum submitted to the administrative law
judge before the hearing, Plaintiff alleged that "neck
issues will limit him from frequent movements with his
head." (AR 237.)
Plaintiff
has not worked since his alleged onset date. However, he
testified that he occasionally performs "odd jobs"
at the place where he lives, such as laying floor tile,
painting and putting down baseboard, in exchange for reduced
rent. (AR 37-38.)
Plaintiff
protectively filed an application for DIB on July 8, 2014.
(AR 82-83.) His claim was denied initially on October 2, 2014
(AR 98), and on reconsideration on December 16, 2014 (AR
109). He requested a hearing on January 12, 2015. (AR 109.)
Administrative Law Judge (ALJ) Matthew Levin conducted a
hearing on June 21, 2016. (AR 57.) Vocational Expert (VE)
Louie Laplant also testified. (AR 54-61.) ALJ Levin issued an
unfavorable decision on September 15, 2016. (AR 20-28.) The
Appeals Council denied Plaintiffs request for review (AR 1),
and he appealed to this court on May 15, 2017 (Doc. 1).
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. 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).
Employing
that sequential analysis in his May 12, 2016 decision, ALJ
Matthew Levin first determined Plaintiff has not engaged in
substantial gainful activity since February 1, 2014. (AR 22.)
At step two, the ALJ found that Plaintiff has the following
severe impairment: degenerative changes of the spine, status
post cervical fusion surgery. (Id.) The ALJ also
found that Plaintiff has other non-severe impairments,
including: chronic headaches, a rash on his hands, and
depression. At step three, the ALJ found that none of
Plaintiff s impairments, alone or in combination, meets or
medically equals a listed impairment.
Next,
the ALJ determined that Plaintiff has the residual functional
capacity (RFC) to perform light work as defined in 20 C.F.R.
§ 404.1567(b)[2] with the following exceptions:
[He] is limited from lifting/carrying more than 10 pounds
frequently and [sic] occasionally. He must avoid all
ladders/ropes/scaffold, but he can occasionally climb stairs.
He has no limitations on balancing, kneeling and crouching,
but he can only occasionally crawl and stoop. He is limited
to no more than frequent bilateral overhead, forward and
lateral reaching. He should avoid all hazards.
AR 25.) At step four, the ALJ found that Plaintiff is unable
to perform any past relevant work. (AR 26.)
At step
five, the ALJ followed the Medical-Vocational Guidelines (the
"Grid Rules") contained in 20 C.F.R. Part 404,
Subpart P, Appendix 2. The ALJ found that Plaintiff was 50
years old when he allegedly became disabled and identified
Plaintiff as "an individual closely approaching advanced
age." (AR 26.) The ALJ found that Plaintiff has at least
a high school education and is able to communicate in English
and that "[f]ransferability of job skills is dispositive
in this case." (Id.) After considering
Plaintiffs age, education, work experience, and RFC, the ALJ
found that there are jobs in significant numbers in the
national economy that Plaintiff could perform, including
assembler of plastic hospital parts, ticket taker/seller, and
toll collector. (AR 27.) ...