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Jacob W. v. Berryhill

United States District Court, D. Vermont

February 4, 2019

JACOB W., Plaintiff,
NANCY BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          ORDER (DOCS. 8, 9)

          Geoffrey W. Crawford, Chief Judge United States District Court

         Plaintiff Jacob W. 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). (Doc. 3.)[1] Pending before the court is Plaintiffs motion to reverse the decision of the Commissioner (Doc. 8) and the Commissioner's motion to affirm (Doc. 9). For the reasons stated below, Plaintiffs motion is DENIED and the Commissioner's motion is GRANTED.


         Plaintiff was 38 years old on his alleged onset date of October 31, 2013. He was diagnosed with hereditary spastic paraplegia (HSP) in March 2010. (AR 68, 366, 594-95.)[2] At that time, he expected that his symptoms would permit him to work for another 10 to 15 years. (AR 69.) But according to Plaintiffs testimony, the symptoms "kicked up a lot faster than I expected them to." (Id.) He testified that he quit his full-time boat-building job with Adirondack Guide Boat in June 2013 because he "physically could not keep up with the day-to-day work." (AR 53-54, 58.) He then did some part-time work sanding timber for a friend in the fall of 2013 but stopped because the work after the sanding was done was more labor-intensive and because the colder weather affected the spasticity in his legs. (AR 59, 262.)

         Plaintiff testified that he believes he cannot return to work because "[o]n a day-to-day basis I'm not sure how much energy I'm going to have or when my symptoms are going to be too extreme for me to either drive or to concentrate when I'm doing things." (AR 54.) He also testified that he is on medications, including medical marijuana. He is unable to drive legally when using marijuana, and testified that he finds it hard to find a safe place to medicate while at work. (See id.) He testified that he needs to be able to take breaks at will and to choose when to show up and when to stop working. (AR 55, 74.) Plaintiff further testified that his mental health has suffered in recent years because he is unable to support himself. (AR 70.)

         Plaintiff is divorced with no children. (AR 49.) A 2015 treatment note indicates that he has friends and also a new girlfriend. (See AR 531.) He completed high school and one year of college studying photography. (AR 51.) As of March 2016 he was living in a house with a self-employed housemate. (AR 49, 52-53.) He is able to navigate the stairs in the house using handrails and the side of the wall. (AR 50.) He receives financial support from his parents (AR 52), but it is difficult for him to accept that support because his parents need the savings, in part because his mother also deals with HSP. (AR 540.) He is home alone while his housemate works, and testified that he spends time trying to sleep when his symptoms become uncomfortable. (AR 53, 74.)

         On a typical day Plaintiff watches the news, does stretches, and does five- to ten-minute chores that do not involve lifting things from the floor. (AR 72.) He takes up to three warm baths per day because it helps with his HSP symptoms. (AR 72-73.) He also reads, listens to music, and draws. (AR 73.) He goes out to dinner once a week, but sometimes avoids going out in public because he does not like "stumbling around in public" or having to explain to people who ask what is "wrong" with him. (Id.)

         Plaintiff filed an application for DIB on April 29, 2014. (AR 103.) His claim was denied initially on September 8, 2014 (id.), and upon reconsideration on February 2, 2015 (AR 120). He requested a hearing, and Administrative Law Judge (ALJ) Elizabeth M. Tafe conducted a hearing on March 4, 2016. (AR 38-91.) Plaintiff appeared at the hearing and was represented by attorney Kelly Massicotte. Vocational Expert (VE) Jack Bopp also testified. ALJ Tafe issued an unfavorable decision on August 30, 2016. (AR 17-31.) The Appeals Council denied Plaintiffs request for review (AR 1), and he appealed to this court on August 8, 2017. (Doc. 3.)

         ALJ Decision

         Social Security Administration regulations set forth a five-step, sequential evaluation process to determine whether a claimant is disabled. McIntyre 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, 416.920. The claimant bears the burden of proving her case at steps one through four. McIntyre, 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 her August 30, 2016 decision, ALJ Tafe first determined that Plaintiff has not engaged in substantial gainful activity since October 31, 2013, the alleged onset date. (AR 19.) At step two, the ALJ found that Plaintiffs severe impairments are HSP, depression NOS (not otherwise specified), and a history of substance abuse. (AR 20.) At step three, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (Id.)

         Next, the ALJ concluded that Plaintiff has the residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. § 404.1567(b)[3] except as follows:

[A]bility to stand/walk for 4 hours each, and sit for 6 hours in an 8-hour workday, and with the option to change positions from sitting to standing or standing to sitting for an aggregate of 4-5 minutes each hour. He is able to occasionally climb ramps, stairs, ladders, and scaffolds, and occasionally balance, kneel, crouch, crawl, and frequently stoop. He is limited to rarely (defined as less than 10% of the workday) working in extreme cold, or with hazards such as moving mechanical parts or unprotected heights. He is able to perform simple tasks at a variable but acceptable pace, but not at a high production or assembly line type pace, and with no timed tasks. He is able to persist at simple tasks for 2 hours at a time in an 8-hour workday.

(AR 22.) At step four, the ALJ concluded that Plaintiff is unable to perform any past relevant work. (AR 29.) At step five, the ALJ considered Plaintiffs age, education, work experience, and RFC, and concluded that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including cashier checker II, food checker, and clerical sorter. (AR 30.) The ALJ accordingly concluded that Plaintiff has not been under a disability, as defined in the Social Security Act, from October 31, 2013 through the date of the decision. (AR31.)

         Standard of Review

         The Social Security Act defines disability, 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 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).

         In considering the Commissioner's disability decision, the court conducts "a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision and if the correct legal standards have been applied." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moron v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)); see also 42 U.S.C. § 405(g). "Substantial evidence means 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Poupore, 566 F.3d at 305 (quoting Consol. Edison Co. of N.Y. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229 (1938)). The "substantial evidence" standard is even more deferential than the "clearly erroneous" standard; facts found by the ALJ can be rejected "only if a reasonable factfinder would have to conclude otherwise." Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)). 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).


         On appeal, Plaintiff argues that the ALJ (1) failed to adequately consider his allegations regarding workplace "reliability" and his need to take breaks; (2) made other errors in assessing his credibility; and (3) erred in giving limited weight to the opinions of his primary care providers. (Doc. 8 at 1-2.)[4] The Commissioner maintains that the ALJ's decision is legally sound and is supported by substantial evidence. (Doc. 9 at 1.)


         Plaintiff argues that the ALJ "completely failed to consider" and "ignored" his allegations regarding his problems with reliability and sustaining activity. (Doc. 8 at 7-8.) Plaintiff also argues that the ALJ made further errors in her "credibility" determination. (Id. at 9.) The court addresses the latter argument here, and then turns to Plaintiffs specific argument about his workplace "reliability." Plaintiffs arguments implicate the ALJ's duty to evaluate the intensity and persistence of a claimant's symptoms. When performing that evaluation, ALJs are required to "consider all of the available evidence, including your [the claimant's] history, the signs and laboratory findings, and statements from you, your treating or nontreating source, or other persons about how your symptoms affect you." 20 C.F.R. § 404.1529(c)(1).[5] The regulations further require consideration of a series of factors relevant to the claimant's symptoms:

(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.

20 C.F.R. § 404.1529(c)(3).

         The ALJ found that Plaintiffs medically determinable impairments "could reasonably be expected to cause the alleged symptoms" but that Plaintiffs "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record." (AR 23.) The ALJ recited the seven factors in § 404.1529(c)(3). (AR 23-24.) The court reviews the ALJ's symptom analysis, addressing Plaintiffs arguments in the process.

         A. "Totally" Disabled

         At the outset of her evaluation of symptoms, the ALJ remarked that Plaintiff "alleges that his combination of impairments renders him totally disabled." (Id.) Plaintiff argues that he never claimed to be "totally" disabled and that the ALJ's reference to being "totally" disabled was unnecessary and inaccurate. (Doc. 8 at 11.) The Commissioner argues that, in context, the ALJ's reference to "total" disability "merely reflects Plaintiffs claim that he cannot perform any jobs on a sustained basis." (Doc. 9 at 6.)

         The court finds no error with the ALJ's use of the modifier "totally." The ALJ's decision as a whole shows that the ALJ was aware of the applicable standard for disability. The ALJ specifically referenced the statutory definition of "disability" (AR 17), the five-step sequential evaluation process for determining "disability" (AR 18-19), and concluded by noting that her "disability" evaluation was based on how that term is "defined in the Social Security Act" (AR 31). Read in proper context, the ALJ's reference to "totally disabled" is a shorthand reference to the disability standard under 42 U.S.C. § 423. See Hilleshiem v. Colvin, No. 13-cv-39-bbc, 2014 WL 26275, at *1 (W.D. Wis. Jan. 2, 2014) (ALJ's use of the phrase "totally disabled" would be ambiguous out of context, but ALJ's decision as a whole showed adherence to the proper standard of review; isolated reference to "total" disability was not an indication that the ALJ was "ignorant of the most basic question in the case"); see also Roma v. Astrue, 468 Fed.Appx. 16, 19 (2d Cir. 2012) (summary order) (using same shorthand).

         B. Objective Medical Findings as Part of Symptom Evaluation

         After listing the seven factors in 20 C.F.R. § 404.1529(c)(3), the ALJ stated that "[t]he evidence of record reveals that the course of treatment and objective medical findings are not consistent with the claimant's alleged severity of symptoms and limitations." (AR 24.) Plaintiff asserts that this statement is "curious" because "the entire point of assessing credibility is based on the premise that objective findings cannot necessarily evidence the level of severity." (Doc. 8 at 10.) The Commissioner maintains that the applicable ...

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