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Steve B. v. Commissioner of Social Security

United States District Court, D. Vermont

March 12, 2019

Steve B., Plaintiff,
Commissioner of Social Security, Defendant.

          OPINION AND ORDER (DOCS. 13, 17)


         Plaintiff Steve B. 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 his application for Disability Insurance Benefits (DIB). Pending before the Court are Plaintiff's motion to reverse the Commissioner's decision (Doc. 13), and the Commissioner's motion to affirm the same (Doc. 17). For the reasons stated below, Plaintiff's motion is DENIED, the Commissioner's motion is GRANTED, and the Commissioner's decision is AFFIRMED.


         Plaintiff was 49 years old on his alleged disability onset date of November 26, 2014. He graduated from high school and also has a GED. (AR 38.) His work history includes jobs as a sandblaster, a dishwasher/cheesemaker, a landscaper, a laborer, a correctional officer, and a machine operator. (AR 58, 217, 234.) He is single and lives by himself in an apartment in Barre. (AR 38.)

         Plaintiff suffers from multiple physical and mental impairments, including degenerative disc disease of the cervical and lumbar spines, cervical radiculitis (inflammation) with referred pain and dysesthesia[1] to the shoulders and upper extremities, depressive disorder, generalized anxiety disorder, and difficulty focusing and concentrating. He had a good work history until the end of 2014, when he was injured on the job while lifting heavy stove parts over his head. (AR 39-40, 339, 842.) The injury exacerbated Plaintiff's already existing upper bilateral extremity and neck issues, resulting in debilitating back, neck, shoulder, and arm pain; and causing him to stop working on November 26, 2014. On December 2, 2014, Plaintiff underwent a cervical discectomy and fusion surgery[2] (AR 40, 425), which provided some relief but did not fully relieve his symptoms (AR 41). Since the surgery, he still has pain in his back, shoulders, and arms; and he suffers from persistent migraine headaches. (Id.; AR 60, 62.) He is unable to stay in one position for an extended period, and walking even just short distances bothers him. (AR 49.)

         In an effort to relieve his symptoms, Plaintiff has tried physical therapy and steroid injections, but neither has provided much relief. He has, on the other hand, benefitted from medication and marijuana. (AR 45-46, 735.) An October 2016 medical report states that he was smoking marijuana eight times per day (four-to-five grams total) at the time. (AR 891; see also AR 46, 735.) Plaintiff testified at the administrative hearing that he no longer treated with any doctors for his back pain and related issues because they had been unable to relieve his symptoms. (AR 47.)

         Despite his impairments, Plaintiff is able to clean his apartment and prepare his own simple meals. (AR 55, 228.) He is also able to travel independently by walking, driving (with some difficulty), and using public transportation. (AR 229.) Medical records document that, among other activities, he played volleyball, swam, and kayaked during the relevant period. (AR 549, 662.) Plaintiff is limited, however, in his ability to use eating or writing utensils, and to reach above his head or behind his back; and he requires the help of his sister with food shopping. (AR 229; AR 55-57.)

         On June 16, 2015, Plaintiff protectively filed his application for disability insurance benefits. (AR 189.) Therein, he alleges that, starting on November 26, 2014, he has been unable to work due to neck, lower back, and shoulder impairments; and leg and ankle pain. (AR 208.) Plaintiff's application was denied initially and upon reconsideration, and he timely requested an administrative hearing. The hearing was conducted on February 24, 2017 by Administrative Law Judge (ALJ) Matthew Levin. (AR 35-68.) Plaintiff appeared and testified, and was represented by an attorney. A vocational expert (VE) also testified at the hearing. (AR 64-67.) On April 18, 2017, the ALJ issued a decision finding that Plaintiff was not disabled under the Social Security Act at any time from his alleged onset date through the date of the decision. (AR 20-29.) Thereafter, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-6.) Having exhausted his administrative remedies, Plaintiff filed the Complaint in this action on May 29, 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]”).

         Employing this sequential analysis, ALJ Levin first determined that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of November 26, 2014. (AR 22.) At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease of the cervical and lumbar spine, depression, anxiety, and cannabis abuse. (Id.) At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 23-24.) Next, the ALJ determined that Plaintiff had the RFC to perform medium work, as defined in 20 C.F.R. § 404.1567(b), except as follows: “[Plaintiff] is unable to climb ladders, ropes[, ] or scaffolds. He is limited to occasional crawling. [He] retains the mental capacity to perform simple, 1-3[-]step tasks, and is able to maintain attention and concentration for 2-hour increments in an 8-hour workday and 40-hour workweek.” (AR 24.)

         Given this RFC, based on testimony from the VE, the ALJ found that Plaintiff was able to perform his past relevant work as a sandblaster, as it is actually and generally performed. (AR 28.) The ALJ concluded that Plaintiff had not been under a disability from his alleged disability onset date of November 26, 2014 through the date of the decision. (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, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).

         In considering the Commissioner's disability decision, the court “review[s] the administrative record de novo to determine whether there is substantial evidence supporting the . . . decision and whether the Commissioner applied the correct legal standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court's factual review of the Commissioner's decision is thus limited to determining whether “substantial evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to support either position, the determination is one to be made by the factfinder.”). “Substantial evidence” is more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. ...

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