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Charles M. v. Berryhill

United States District Court, D. Vermont

August 19, 2019

CHARLES M., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER (DOCS. 6, 7)

          Geoffrey W. Crawford, Chief Judge

         Plaintiff Charles M. 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. 1.) Currently pending is Plaintiffs motion to reverse the decision of the Commissioner (Doc. 6) and the Commissioner's motion to affirm (Doc. 7). For the reasons stated below, Plaintiffs motion is GRANTED, and the Commissioner's motion is DENIED.


         Plaintiff was 50 years old on his alleged onset date of December 9, 2013.[1](AR 32.) He claims he is unable to work due to chronic pain and loss of mobility as a result of a labral tear in his right hip, nerve damage in his groin, and degenerative disc disorder in his neck and lower back. (AR 42-50, 208, 222.)

         Plaintiff completed approximately ten years of schooling and has a GED. (AR 34-35.) Between 2006 and 2014, he worked as a sales associate at Best Buy. (AR 36-38, 231.) He has also worked as a security guard, assistant manager of a video store, municipal utilities locator, municipal facilities attendant, and manager of a shoe store. (AR 231.)

         In March 2007, Plaintiff developed a right inguinal hernia and injured his right hip while working at Best Buy. (AR 37, 43, 171.) At his hearing on March 23, 2017, he testified that he underwent hernia repair surgery about a month after sustaining the injury, and that the operation damaged nerves in his groin. (AR 43-44.) Treatment notes indicate that he later received ilioinguinal and hypogastric nerve blocks and ilioinguinal nerve bisection surgery. (AR 362.) In March 2010, he underwent an arthroscopic labral debridement of his right hip. (AR 321.)

         Plaintiff testified that he experiences persistent pain in his hip and groin that is exacerbated by physical activity such as "[m]oving, walking, [or] sitting"; wearing a belt; and standing. (AR 46-48.) He further testified that his right hip freezes if he sits or walks for extended periods of time, which caused him to fall and break his ankle in December 2016. (AR 50-51.) He estimated he could stay on his feet for about three hours total over the course of a workday. (AR 52.) He asserted that he can sit for 5 to 20 minutes before experiencing an acute burning sensation in his thigh, which he can alleviate by standing up or changing positions. (AR 53-54.) He testified that he has gained around 65 pounds since he was injured in 2007 and that his weight aggravates his symptoms. (AR 61.)

         Plaintiff filed an application for DIB on or about May 27, 2015. (See AR 14, 75, 85, 86.) His claim was denied initially on August 5, 2014 (AR 75-84), and on reconsideration on January 20, 2015 (AR 86-92). He requested a hearing, and Administrative Law Judge (ALJ) Edward Malvey conducted a hearing on March 23, 2017. (AR 29-74.) Plaintiff appeared at the hearing and was represented by Attorney Craig Jarvis. (AR 29.) Vocational Expert (VE) Elizabeth Laflamme also testified. (AR 61-72.) ALJ Malvey issued an unfavorable decision on May 9, 2017. (AR 14-22.) The Appeals Council denied Plaintiffs request for review (AR 1), and he appealed to this court on June 5, 2018 (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 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. The claimant bears the burden of proving his 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 his May 9, 2017 decision, ALJ Malvey first determined Plaintiff has not engaged in substantial gainful activity from his alleged onset date of December 9, 2013 through September 30, 2014, the date he last met the insured status requirements of the Social Security Act. (AR 16.) At step two, the ALJ found that Plaintiff had three severe impairments through the date last insured: lumbago, chronic pain syndrome, and obesity. (AR 16-17.) At step three, the ALJ found that none of Plaintiff s impairments, alone or in combination, meets or medically equals a listed impairment. (AR 17.)

         Next, the ALJ determined that, through the date last insured, Plaintiff had the residual functional capacity (RFC) to perform the light work as defined in 20 C.F.R. § 404.1567(b)[2] with the following exceptions: "he cannot climb ladders, ropes, or scaffolds; can occasionally climb ramps and stairs; and can occasionally stoop, kneel, crouch, and crawl." (AR 17.) Because "the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday," SSR 83-10, 1983 WL 31251, at *6 (1983), the ALJ implicitly found that Plaintiff retained the ability to stand and walk for a total of six hours in an eight-hour workday.

         At step four, the ALJ found that Plaintiff was able to perform his past relevant work as a security guard, commercial and industrial, through the date last insured. (AR 21.) The ALJ accordingly concluded that Plaintiff has not been under a disability, as defined in the Social Security Act, at any time from December 9, 2013 through September 20, 2014. (AR 22.)

         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 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." 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 Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)); see also 42 U.S.C. § 405(g). "Substantial evidence ... is 'more than a mere scintilla.' It means-and means only- 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations omitted) (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 claims that substantial evidence does not support the ALJ's finding that he has the RFC to perform the amount of walking and standing required for light work. (Doc. 6 at 2.) Specifically, Plaintiff contends that the ALJ erred by (1) improperly evaluating his treating physicians' opinions of his ability to walk and stand and (2) failing to adequately consider evidence of pain and other symptoms. (Id. at 5-6.) The ...

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