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Lynn C. v. Commissioner of Social Security

United States District Court, D. Vermont

September 18, 2019

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

          OPINION AND ORDER (DOCS. 13, 14)

          JOHN M. CONROY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Lynn C. brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, requesting review and remand of the second decision of the Commissioner of Social Security denying her 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. 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 48 years old on her alleged disability onset date of February 24, 2014. She graduated from high school one year early, and earned her cosmetology license in 2009. She has work experience in more than 50 jobs, but none has been long-lasting or successful other than her part-time job as a school bus driver from August 2008 until February 2013. (AR 46, 209, 211, 941, 975.) Her other jobs include: a substitute teacher, a school secretary, a school cook, a pharmacy cashier, a home care aide, an assistant town clerk, a bank teller, a cashier/shipper at a farm store, an assistant dental clerk, a payroll/benefits clerk, and an office assistant. (AR 40, 43–46, 209–22.) Plaintiff has been married for over 30 years, and has four adult children and four grandchildren. She lives with her husband in Barre; and as of June 2018, her daughter, son-in-law, and their children were temporarily living in a small apartment over Plaintiff’s garage. (AR 977.)

         Plaintiff suffers from anxiety, attention deficit hyperactivity disorder (ADHD), and depression. She also has panic attacks and phobias, suicidal thoughts, and sleeping problems. Plaintiff claims she is unable to work because of these mental impairments, which manifest in her difficulty concentrating and focusing, taking direction from supervisors, and getting along with supervisors and coworkers. (AR 41, 45, 53, 57.) On a typical day in April 2016, Plaintiff testified that once or twice a week she would ride in the van with her husband while he worked as an automatic door technician. (AR 43, 53; see also AR 973.) On days when she stayed home, Plaintiff would paint rocks and shells, care for her 12 chickens, [1] watch television, sleep, and eat dinner with her husband. (AR 42, 53–54, 57.) In addition, she had been caring for two of her grandchildren twice a week, until she had a “falling out” with her daughter. (AR 43, 52; see also AR 613.) She testified that her grandchildren made her happy and helped keep her stable. (AR 53.) In June 2018, Plaintiff reported to a medical source that she spent her days painting, crocheting, gardening, mowing the lawn (on a seated mower), “puttering” around the house, completing household jobs on her husband’s lists while he was out working, and going to the local store. (AR 978.) She was anxious about driving and going out in public, preferring to stay home. (Id.)

         On December 19, 2014, Plaintiff filed the pending DIB application, alleging that, starting on February 24, 2014, she has been unable to work due to depression, ADHD, anxiety, and panic attacks. (AR 185–86, 200.) She explained that she had had problems with the store manager at her prior job, as he was “unbearable to communicate with[, ] and [her] anxiety and depression peaked[, ] and [thus] [she] . . . left [the job].” (AR 200.) Plaintiff’s application was denied initially and upon reconsideration, and she timely requested an administrative hearing. The first hearing was conducted on April 6, 2016 by Administrative Law Judge (ALJ) Thomas Merrill. (AR 34–67.) Plaintiff appeared and testified, and was represented by an attorney. A vocational expert (VE) also testified at the hearing. (AR 59–66.) On June 1, 2016, 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 13–26.) Thereafter, the Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s decision the final decision of the Commissioner. (AR 1–3.) Plaintiff then filed a Complaint with the District Court, and on November 14, 2017, the Court issued an Order granting the Commissioner’s assented-to motion for an order remanding the claim for further administrative proceedings. (AR 652.)

         On January 9, 2018, pursuant to the Court’s remand order, the Appeals Council issued an Order containing specific instructions to the ALJ. (AR 660–61.) Pursuant to that Order, on July 11, 2018, ALJ Merrill held a second administrative hearing on the claim. (AR 601–24.) Plaintiff again appeared and testified, and was represented by an attorney. A VE also testified. (AR 616–23.) On September 13, 2018, the ALJ issued a second decision, again finding that Plaintiff was not disabled under the Social Security Act at any time from her alleged disability onset date through her date last insured of June 30, 2018. (AR 554–77.) Thereafter, the Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s decision the final decision of the Commissioner. (AR 647–49.) Having exhausted her administrative remedies, Plaintiff filed the pending Complaint with this Court on December 5, 2018. (Doc. 6.)

         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, in his September 2018 decision, ALJ Merrill first determined that Plaintiff had not engaged in substantial gainful activity since her alleged disability onset date of February 24, 2014. (AR 556.) At step two, the ALJ found that Plaintiff had the severe impairments of anxiety disorder and ADHD. (AR 557.) Conversely, the ALJ found that Plaintiff’s depression and panic attacks were not severe. (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 558–62.)

         Next, the ALJ determined that Plaintiff had the RFC to perform “a full range of work at all exertional levels but with the following non-exertional limitations: [Plaintiff] has the ability to understand and remember 1–4 step instructions. She can sustain concentration, persistence[, ] and pace to perform such activities for 2[-]hour[] periods throughout an 8-hour workday and a 40-hour workweek.” (AR 562.) Given this RFC, the ALJ found that Plaintiff was able to perform her past relevant work as a bus driver and a general office clerk. (AR 576.) Alternatively, based on testimony from the VE, the ALJ determined that Plaintiff could perform other jobs existing in significant numbers in the national economy, including the jobs of office cleaner, laundry sorter/folder, and janitor/cleaner. (AR 576–77.) The ALJ concluded that Plaintiff had not been under a disability from her alleged disability onset date of February 24, 2014 through her date last insured of June 30, 2018. (AR 577.)

         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

         I. Prior ALJ Decision and Appeals Council Remand Order

         Plaintiff argues that the ALJ violated the law of the case doctrine and the rule of mandate by changing his evaluation of nonexamining agency consultant Dr. Ellen Atkins’s opinions between the time of his June 2016 and September 2018 decisions, and by failing to follow the January 2018 Appeals Council’s Order remanding the claim with instructions to give further consideration to the nonexamining consultant opinions and, if needed, provide additional evidence or clarification of those opinions. (Doc. 13-2 at 2–5; see AR 661.) In her reply brief, Plaintiff summarizes her argument as follows: “By giving ‘little weight’ or ‘no weight’ to all of Dr. Atkins’[s] opinions and ‘substantial weight’ to some of the earlier opinions of ...


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