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Jessica R. v. Berryhill

United States District Court, D. Vermont

March 27, 2019

JESSICA R., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER (DOCS. 7, 8)

          Geoffrey W. Crawford Chief Judge.

         Plaintiff Jessica R brings this action under 42 U.S.C. § 1383(c)(3), requesting reversal of the decision of the Commissioner of Social Security that Plaintiff is no longer eligible for supplemental security income (SSI). (Doc. 1.) Currently pending is Plaintiffs motion to reverse the Commissioner's decision (Doc. 7) and the Commissioner's motion to affirm (Doc. 8). For the reasons stated below, Plaintiffs motion is GRANTED, and the Commissioner's motion is DENIED.


         On November 8, 2002, Plaintiff was found to be disabled and eligible for SSI beginning February 1, 2002. (AR 27, 74-75.) She suffered from depression and learning disorders. (AR75.)

         The Social Security Administration (SSA) conducted an initial continuing disability review in 2015. (AR 76-77.) Plaintiff alleged that she continued to be disabled due to a learning disability, anxiety, depression, attention deficit and hyperactivity disorder ("ADHD"), and anger management issues. (AR 77.) Following its review, the SSA determined that Plaintiff was no longer disabled as of January 9, 2015 and terminated her benefits. (AR 27, 76-82.) In her request for reconsideration, Plaintiff stated that she also suffered from sciatica in her right leg. (AR 86.) On reconsideration, Plaintiff was determined to be not disabled as of September 1, 2015. (AR 113.)

         Plaintiff requested a hearing (AR 117), and Administrative Law Judge (ALJ) Paul Martin conducted a hearing on August 4, 2016 (AR 44-73). Plaintiff appeared at the hearing and was represented by paralegal Sara Williams. Plaintiff testified that she is unable to work due to sciatica, chronic myalgia, [1] chronic fatigue, relapsing polychondritis, [2] a hernia, depression, anxiety, and ADHD. (AR 60-67.) Vocational Expert (VE) Dennis King also testified. (AR 71-72.)

         During the hearing, Ms. Williams stated that the records appeared not to have medical records needed to make a decision. (AR 46-48.) In particular, she noted that Family Psychiatric Associates had not produced records for Disability Determination Services. (AR 47.) Ms. Williams also asked for time to get a mental residual functional capacity assessment ("MRFCA") from the Plaintiffs current treating source at Family Psychiatry Associates, James Greenleaf, ARNP. (AR 51-52.) At the end of the hearing, ALJ Martin left the record open for two weeks for Plaintiff to submit additional medical records, including from Mr. Greenleaf. (AR 72.)

         On October 28, 2016, Ms. Williams notified ALJ Martin that she had electronically submitted "a MRFCA and recent treatment records" from Mr. Greenleaf. (AR 261.) However, these records were not exhibited as evidence for ALJ Martin's continuing disability review (see AR 36-41), nor were they discussed in his unfavorable January 4, 2017 decision (see AR 27-35; cf. AR 30 ("All subsequent records after June 2014, with regard to her psychological treatment provider involve medication refills only.").)

         In his January 4, 2017 decision, ALJ Martin upheld the cessation of benefits and found that Plaintiff was no longer disabled as of January 9, 2015. (AR 27-35.) Plaintiff then filed a request for review with the Appeals Council. (AR 156.) As a part of her initial appeal, Plaintiff submitted several pieces of additional evidence that the Appeals Council added to the record. (AR 4-5.) These submissions included an MRFCA and additional treatment notes from Mr. Greenleaf.[3] (AR 156-57, 264.)

         The Appeals Council denied Plaintiffs request for review on September 27, 2017, making the ALJ's decision the final decision of the Commissioner. (AR 1-5.) The Appeals Council wrote: "We found no reason under our rules to review the [ALJ's] decision. Therefore we have denied your request for review." (AR 1.) The Appeals Council added: "You submitted reasons that you disagree with the decision. We considered the reasons and exhibited them on the enclosed Order of Appeals Council. We found that the reasons do not provide a basis for changing the [ALJ's] decision." (Id.) Plaintiff appealed to this court on November 28, 2017. (Doc. 1.)

         The ALJ's Decision

         After determining that a claimant is disabled, the Commissioner periodically conducts a "continuing disability review" to reevaluate the claimant's eligibility to receive benefits. See 42 U.S.C. § 42l(i); see also 20 C.F.R. § 416.994(a). The claimant's "benefits may be terminated if there is substantial evidence that the impairment has improved to such an extent that he is now able to work." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); see also 42 U.S.C. § 1382c(a)(4). Under the medical improvement standard, the claimant is entitled to a presumption that she remains disabled unless the condition, governing statutes, or regulation change. De Leon v. Sec'y of Health & Human Servs., 734 F.2d 930, 937 (2d Cir. 1984). The Commissioner bears the burden of proving that the claimant is no longer disabled. Id; see also Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002) ("Under the medical improvement standard, the government must, in all relevant respects, prove that the person is no longer disabled.").

         Social Security Administration regulations provide specific procedures for determining whether a claimant continues to be disabled. 42 U.S.C. § 416.994(b)(5)(i)-(vii). First, the Commissioner considers whether the claimant's impairment or combination or impairments meets or equals an impairment contained in the Listing of Impairments. Id. § 416.994(b)(5)(i). Second, if the claimant does not suffer from such an impairment, the Commissioner must determine whether there has been medical improvement in the claimant's condition.[4] 42 U.S.C. § 416.994(b)(5)(ii). Third, if there has been medical improvement, the Commissioner considers whether the medical improvement relates to the claimant's ability to work, "i.e., whether or not there has been an increase in the residual functional capacity based on the impairment(s) that was present at the time of the most recent favorable medical determination." Id. § 416.994(b)(5)(iii).

         If the claimant's medical improvement is related to her ability to work, the Commissioner determines whether all of the claimant's current impairments in combination are severe. Id. § 416.994(b)(5)(v). If the claimant's impairments are severe, the Commissioner must assess the claimant's residual functional capacity and determine if she can perform past relevant work. Id. § 416.994(b)(5)(vi). Finally, if the claimant is unable to perform past work, the Commissioner determines whether the claimant can perform other work, given her residual functional capacity, past work experience, age, and education. Id. § 416.994(b)(5)(vii).

         Employing that sequential analysis in his January 4, 2017 decision, ALJ Martin determined that Plaintiffs current medically determinable impairments include an affective disorder, an anxiety disorder, an attention deficient disorder, and degenerative disc disease of the lumbar spine. (AR 29.) The ALJ then 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.) The ALJ found that medical improvement occurred on January 9, 2015 (AR 29), and that this medical improvement relates to Plaintiffs ability to work (AR 30). The ALJ determined that, since January 9, 2015, Plaintiff has continued to have one severe impairment: lumbar degenerative disc disease. (AR 30.) The ALJ also found that Plaintiff "does not have a severe mental impairment or combination of mental impairments." (Id.)

         Next, the ALJ concluded that, since January 9, 2015, Plaintiff has had the residual functional capacity (RFC) to perform the full range of light work as defined in 20 C.F.R. § 416.967(b).[5] (AR 32.) Finally, based on Plaintiffs age, education, work experience, and RFC, the ALJ determined that Plaintiff has been able to perform a significant number of jobs in the national economy since January 9, 2015. (AR 34.) The ALJ accordingly concluded that Plaintiffs disability, as defined in the Social Security Act, ended on January 9, 2015, and that she has not become disabled again since that date. (AR 35.)

         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, the Commissioner may only terminate the claimant's benefits if there is substantial evidence that the claimant's impairment has improved to such an extent that she is now able to engage in substantial gainful activity. Id. § 1382(c)(4).

         In considering the Commissioner's 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 Moran 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 v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam) (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 Commissioner's decision is not supported by substantial evidence. Specifically, she claims that the ALJ erred in finding that Plaintiff does not have a severe mental impairment for two reasons: (1) the medical evidence added to the record by the Appeals Council shows Plaintiffs mental impairments are severe; and (2) the ALJ failed to adequately consider the opinion of State agency psychological consultant, Ellen Atkins, Ph.D. (Doc. 7 at 3-5.) The Commissioner maintains that the decision is supported by substantial evidence and free of legal error. (Doc. 8 at 1.)

         I. Additional Medical Evidence

         Plaintiffs primary argument is that the opinion and additional treatment records of her treating psychiatric nurse practitioner, Mr. Greenleaf, contradict the ALJ's conclusion that Plaintiffs mental impairments are non-severe. (Doc. 7 at 3-4.) The Commissioner contends that "there is no reasonable probability that the additional evidence would have changed the outcome of the decision." (Doc. 8 at 6.)

         "[N]ew evidence submitted to the Appeals Council following the ALJ's decision becomes part of the administrative record for judicial review when the Appeals Council denies review of the ALJ's decision." Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996). "The only limitations stated in [20 C.F.R. §§ 404.970(b) and 416.1470(b)] are that the evidence must be new and material and that it must relate to the period on or before the ALJ's decision." Id. In this case, the parties agree that the Appeals Council properly added Mr. Greenleaf's opinion and additional treatment records to the administrative record, as this evidence was new, material, and related to the relevant time period.[6]

         "Once evidence is added to the record, the Appeals Council must then consider the entire record, including the new evidence, and review a case if the 'administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record.'" Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (per curiam) (quoting 20 C.F.R. § 404.970(b)); see also 20 C.F.R. § 416.1470(b). "When the Appeals Council denies review after considering new evidence, [courts] simply review the entire administrative record, which includes the new evidence, and determine, as in every case, whether there is substantial evidence to support the decision of the Secretary." Perez, 77 F.3d at 46.

         As an initial matter, the court notes that the proper focus of its review is the ALJ's decision. If the Appeals Council denies a request for review, "the ALJ's decision, and not the Appeals Council's, is the final agency decision." Lesterhuis, 805 F.3d at 87 (citing Perez, 77 F.3d at 44). Because the Appeals Council declined ...

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