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Noel C. v. Commissioner of Social Security

United States District Court, D. Vermont

July 23, 2019

Noel C., Plaintiff,
v.
Commissioner of Social Security, Defendant.

          OPINION AND ORDER (DOCS. 13, 14)

          JOHN M. CONROY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Noel C. 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 her application for disability insurance benefits. 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. 14). For the reasons stated below, Plaintiff's motion is DENIED, the Commissioner's motion is GRANTED, and the Commissioner's decision is AFFIRMED.

         Background

         Plaintiff was 45 years old on her alleged disability onset date of December 24, 2015. She completed high school and attended two years of college, receiving a certificate in radiologic technology. (AR 30.) She has worked as a licensed optician at a doctor's office, a radiographer/x-ray technologist at Springfield Hospital and Rutland Hospital, a medical assistant at Vermont Orthopedic Clinic, and a durable medical equipment supervisor at Rutland Pharmacy. (AR 31, 249-53.) She stopped working on December 24, 2015, after injuring her back on the job, while transferring a patient from a stretcher to an x-ray table. (AR 32, 44-45, 256.)

         Plaintiff suffers from pain in her thoracic spine (upper back and abdomen), resulting in radicular pain and a burning/pulling feeling from her back around to her chest, ribs, and abdomen. (AR 32, 35-36, 45.) She also suffers from daily headaches and pain in her shoulder, right hand, and left arm. (AR 37-38, 49.) She has consulted with several neurosurgeons regarding whether surgery would alleviate her thoracic pain but has been advised that the risks would likely exceed the potential gains. (AR 39-40; see AR 330-31, 586-87, 828; but see AR 614.) Though she has benefitted from injections and medication including muscle relaxers and Oxycodone, she still suffers from constant pain, poor sleep, and limited mobility. (AR 40, 42.) In addition, Plaintiff has been diagnosed with celiac disease, which is “a disease . . . characterized by sensitivity to gluten, with chronic inflammation and atrophy of the mucosa of the upper small intestine” and manifesting in diarrhea, nutritional and vitamin deficiencies, and failure to thrive, Stedmans Medical Dictionary 253500 (Westlaw 2014); and with Hashimoto's thyroiditis, which is an autoimmune disease that causes hypothyroidism, defined as “[d]iminished production of thyroid hormone, leading to clinical manifestations of thyroid insufficiency, including low metabolic rate, tendency to gain weight, somnolence, and sometimes myxedema, ” id. at Stedmans 431070. (AR 47.)

         On a typical day during the alleged disability period, Plaintiff drove her teenage son to and from school, took her various pain medications, watched television, completed light household chores (in small steps and taking breaks, and sometimes with the help of her adult daughter), checked email, surfed the internet, read novels and medical journals, talked on the telephone, took naps, prepared and ate simple meals, and went grocery shopping with her sister (making frequent stops). (AR 33, 48, 76-83; see AR 259-61.) At times, Plaintiff has flares of pain that immobilize her, and she is unable to get out of bed for over an hour. (AR 40.) She does not sleep well due to her pain, sleeping only four hours at a time most nights (AR 42, 48-49), and she has to change positions frequently to avoid “intense achiness” (AR 44; see AR 43).

         On January 12, 2016, Plaintiff filed an application for social security disability insurance benefits. Therein, she alleged that, starting on December 24, 2015, she has been unable to work due to “[t]horacic spine herniation, ” “[c]ervical spine [degenerative disc disease], ” and “[s]evere celiac disease.” (AR 237.) She added at the administrative hearing that she also has “digestive issues, ” leading to a diagnosis of celiac disease; and she has been diagnosed with Hashimoto's thyroiditis. (AR 47.) She explained that she is unable to work largely due to her need to take breaks (and naps) as a result of her impairments, making her reliability an issue. (AR 50-51.) Plaintiff's application was denied initially and upon reconsideration, and she timely requested an administrative hearing.

         The hearing was conducted on May 17, 2017 by Administrative Law Judge (ALJ) Thomas Merrill. (AR 26-57.) Plaintiff appeared and testified, and was represented by an attorney. A vocational expert (VE) also testified at the hearing. On July 19, 2017, the ALJ issued a decision finding that Plaintiff was not disabled under the Social Security Act at any time from her alleged disability onset date through the date of the decision. (AR 10-21.) Thereafter, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Having exhausted her administrative remedies, Plaintiff filed the Complaint in this action on August 7, 2018. (Doc. 3.)

         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). 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). 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). 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). 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). Finally, at the fifth step, the ALJ determines whether the claimant can do “any other work.” 20 C.F.R. § 404.1520(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 Merrill first determined that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of December 24, 2015. (AR 13.) At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease of the cervical and thoracic spines, and celiac disease. (Id.) Conversely, the ALJ found that Plaintiff's “other diagnoses, ” including her cardiac condition, were non-severe. (AR 13-14.) The ALJ noted, however, that he “reviewed and considered” all of Plaintiff's impairments, both severe and non-severe, in formulating the RFC. (AR 14.) At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 14-15.) 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] can lift and carry 50 pounds occasionally and 25 pounds frequently. She can stand and walk for 6 hours and sit for 6 hours in an 8-hour workday. She has unlimited use of her hands and feet to operate controls, push, and pull. She can occasionally climb ladders, ropes, and scaffolds. She can frequently crawl. She can perform the remaining postural activities on an unlimited basis. She has no manipulative limitations. She should avoid concentrated exposure to vibration, unprotected heights, and moving mechanical parts. She requires the ability to shift positions as necessary to relieve discomfort, no more than five minutes per hour.

         (AR 15.) Given this RFC, the ALJ found that Plaintiff was capable of performing her past relevant work as a medical technician and a sales representative. (AR 21.) The ALJ concluded that Plaintiff had not been under a disability from her alleged disability onset date of December 24, 2015 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. Perales, 402 U.S. 389, 401 (1971); Poupore, 566 F.3d at 305. In its deliberations, the court should bear in mind 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).

         Analysis

         Plaintiff argues that the ALJ made four principal errors: (1) failing to consider Plaintiff's Hashimoto's thyroiditis in his decision; (2) determining that Plaintiff has the RFC to perform medium work based on an improper analysis of the medical opinions; (3) failing to call a medical expert at the administrative hearing; and (4) finding that Plaintiff failed to establish a correlation between her allegations and the objective medical evidence. (Doc. 13.) The Commissioner responds by asserting that substantial evidence supports the ALJ's decision and the decision is free of legal error. (Doc. 14.)

         I. ALJ's Consideration of Plaintiff's Hashimoto's Thyroiditis

         Plaintiff first argues that the ALJ erred by failing to consider Plaintiff's Hashimoto's thyroiditis (sometimes referred to herein as simply “thyroiditis”), which Plaintiff contends was a severe impairment during the alleged disability period. (Doc. 13 at 4-7.) The Commissioner counters that the ALJ did in fact consider the effects of Plaintiff's thyroiditis, given the ALJ's statement in his decision that he “reviewed and considered all ‘severe' and ‘non-severe' impairments in formulating [Plaintiff's RFC].” (AR 14; see Doc. 14 at 4.)

         It is the claimant's burden to show at step two that she has a “severe” impairment or combination of impairments, meaning an impairment or combination of impairments that “significantly limits [her] physical or mental ability to do basic work activities, ” 20 C.F.R. § 404.1520(c); see 20 C.F.R. § 404.1522, “for a continuous period of at least 12 months, ” 20 C.F.R. § 404.1509. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (“It is not unreasonable to require the claimant, who is in a better position to provide information about his own medical condition, to do so.”). “[T]he standard for a finding of severity . . . is de minimis and is intended only to screen out the very weakest cases.” McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (citing Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995)). An impairment is “not severe” when medical ...


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