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Daryl B. v. Commissioner of Social Security

United States District Court, D. Vermont

April 24, 2019

DARYL B., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER (DOCS. 12, 17)

          Geoffrey W. Crawford, Chief Judge.

         Plaintiff Daryl B. 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.) Currently pending is Plaintiffs motion to reverse the decision of the Commissioner (Doc. 12) and the Commissioner's motion to affirm (Doc. 17). For the reasons stated below, Plaintiffs motion is GRANTED and the Commissioner's motion is DENIED.

         Background

         Plaintiff was 42 years old on his alleged disability onset date of January 20, 2008. (AR 13, 23.) He suffered from a work injury leading to degenerative disc disease of the lumbar spine, three surgeries, and a post-operative infection. (AR 15.) As a result, Plaintiff claims he cannot work. (Id.)

         Plaintiff has an 1lth grade education. (AR 193-94.) He previously worked as a lead technician for Cabot Hosiery Mills, maintaining machines and programming. (AR 197.) Most recently, he worked as a Robot Operator for Green Mountain Coffee Roasters, sealing and lifting cartons of coffee. (AR 195.) Around January 2008, while working at Green Mountain Coffee Roasters, Plaintiff attempted to lift a heavy pallet and felt "a pain shoot right down [his] right leg." (AR 15, 196.) He stopped working full time after January 20, 2008 due to his work injury. (AR 15.)

         At his May 5, 2016 hearing, Plaintiff testified that the pain in his back, buttocks and legs is so severe he cannot work. (AR 199.) Plaintiff sought medical advice for his pain. (AR 201.) He underwent three procedures in an attempt to reduce his pain. (AR 201-05.) On April 8, 2009, Plaintiff underwent a bilateral L5 pars defects repair. (AR 75.) Plaintiff alleges he felt worse after the procedure on April 8, 2009. (AR 201-02.) After a receiving a second opinion, Plaintiff underwent a spinal fusion on December 6, 2010. (AR 17, 202.) Plaintiff testified the "first fusion turned out great." (AR 202.) At that time, he stated he was able to get up and walk around the block "two or three times a day for about four months." (Id.)

         After Plaintiff noted feeling less pain, William Schick, a Senior Vocational Rehabilitation Counselor, suggested Plaintiff undergo a Functional Capacity Evaluation. (AR 92.) Plaintiff did so but he injured himself during the evaluation while attempting to perform one of the exercises. (AR 203.) Plaintiff believes something in his back popped, and he began experiencing nausea, profuse sweating, and diarrhea. (Id.) Soon after, Plaintiff returned to the doctor, who performed medical imagining and informed Plaintiff that he would need to undergo a second spinal fusion. (AR 203-04.)

         On April 12, 2012, Plaintiff underwent a second spinal fusion, a revision of his first spinal fusion. (AR 103, 204.) He developed a post-operative infection following the April 12th surgery. (AR 207.) He testified that the second surgery "never seemed to give [him] the relief [he] got from the first one" and maintains he is "still in a lot of pain." (AR 204.)

         Plaintiff testified that his pain is worse now than when he first injured himself in 2008. (AR 205.) He reports he can stand and do dishes for "maybe 5 to 10 minutes" and can sit for "anywhere from 20 to 30/40 minutes." (AR 200.) But he has trouble balancing, and uses a cane, a walker, and surrounding walls to help him walk. (AR 198-201.) Plaintiff testified that he has "a hard time walking very far" and if he does walk too far, his back will suddenly hurt so much that he believes he will fall if he does not sit down. (AR 201.) He also testified that he did not believe he can work unless he could be "reclined in a chair doing a job." (AR 206.)

         Plaintiff testified that he takes methadone, oxycodone, and Tylenol to reduce his pain but suffers from a variety of drug-related side effects that, in addition to his pain, limit his ability to work. (AR 199.) Plaintiff reports that the pain medication makes him "groggy," and that he has a difficult time with life activities because he often cannot sleep for more than two hours at a time. (AR 198-99.)

         Plaintiff filed a Title II application for a period of disability and DIB on June 23, 2014. (AR 13.) The claim was denied on September 12, 2014 and upon reconsideration on November 21, 2014. (Id.) Plaintiff requested a hearing on January 20, 2015. (Id.) Administrative Law Judge (ALJ) Dory Sutker held a video hearing on May 5, 2016. (Id.) Medical Expert (ME) Louis Fuchs and Vocational Expert (VE) Richard Hall also testified. (Id.) ALJ Sutker issued an unfavorable decision on June 2, 2016. (AR 10-29.) The Appeals Council denied Plaintiffs request for review (AR 1-7), and he appealed to this court on October 24, 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 suffers 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 also 20 C.F.R. § 404.1520. The claimant bears the burden of proving his case at steps one through four. Mclnlyre, 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. Aslnie, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam).

         Employing that sequential analysis in her June 2, 2016 decision, ALJ Sutker first determined Plaintiff has not engaged in substantial gainful activity during the period of January 20, 2008, his alleged onset date, through June 30, 2013, his last date insured. (AR 15.) At step two, the ALJ found Plaintiff has three severe impairments: degenerative disc disease of the lumbar spine, status post three surgeries, and a post-operative infection. (Id.) At step three, the ALJ found that none of Plaintiff s impairments, alone or in combination, meets or medically equals a listed impairment. (AR 16.)

         Next, the ALJ determined Plaintiff has the residual functional capacity (RFC) to perform sedentary work as defined in 20 C.F.R. § 404.1567(a)[1] with the following exceptions:

[He] needs the ability to change positions between sitting and standing at will. He can occasionally climb ramps and stairs, balance, stoop, kneel, and crouch; and can never crawl or climb ladders, ropes or scaffolds. The claimant can have no exposure to unprotected heights, moving machinery, or vibrations such as hand-held power tools; and can do no driving on the job. He can have occasional exposure to extreme temperatures, humidity and wetness. He can perform uncomplicated tasks (typically learned in 30 days or less), and can maintain concentration, persistence and pace for two-hour blocks of time.

(AR 16.) At step four, the ALJ found that, through the date last insured, Plaintiff was unable to perform any past ...


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