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Penny Lou S. v. Commissioner of Social Security

United States District Court, D. Vermont

October 10, 2019

Penny Lou S., Plaintiff,
Commissioner of Social Security, Defendant.

          OPINION AND ORDER (Docs. 8, 9)

          John M. Conroy United States Magistrate Judge.

         Plaintiff Penny Lou S. 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 applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Pending before the Court are Plaintiff's motion to reverse the Commissioner's decision (Doc. 8), and the Commissioner's motion to affirm the same (Doc. 9). For the reasons stated below, Plaintiff's motion is GRANTED, in part; the Commissioner's motion is DENIED; and the matter is REMANDED for further proceedings and a new decision.


         Plaintiff was 44 years old on her alleged disability onset date of September 28, 2013. She has a high school education and worked as a housekeeper or housekeeper supervisor for approximately 25 years, until she stopped working in early 2012 due to several physical impairments, described below. (AR 164, 300, 491, 519, 521.) Plaintiff is single and has two adult children. (AR 518.) During the alleged disability period, she lived with a friend, and received food stamps from the government and health insurance through Medicaid. (AR 519, 998.)

         Plaintiff is obese and suffers from fibromyalgia;[1] sleep problems; and daily pain in her right shoulder, neck, back, hips, knees, elbows, wrists, and hands. (AR 42, 162-63, 368-70, 494, 497-502, 1265.) She is limited in her ability to walk, stand, lift, and bend, among other things. (AR 42, 269-70, 504-06.) On a typical day, Plaintiff cares for her dogs, helps clean the house including doing the dishes, prepares meals, and naps. (AR 270-71, 503.) On bad days, she can do hardly anything because of fatigue, pain (especially in her elbows and knees), and swelling in her feet. (AR 504-05.)

         On April 14, 2014, Plaintiff filed applications for DIB and SSI. Pursuant to those applications, Plaintiff alleges that, starting on September 28, 2013, she has been unable to work due to bursitis and arthritis in her hips, fibromyalgia, and back pain.[2] (AR 20, 40, 100, 253, 461.) Plaintiff's applications were denied initially and upon reconsideration, and Administrative Law Judge (ALJ) Thomas Merrill conducted an administrative hearing on November 4, 2015. (AR 37-61.) Plaintiff testified and was represented by an attorney. A vocational expert (VE) also testified at the hearing. On January 12, 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 20-31.) Thereafter, the Appeals Council denied Plaintiff's request for review. On October 26, 2017, however, upon consideration of the Commissioner's assented-to motion to remand, the District Court remanded the matter for further proceedings under sentence four of 42 U.S.C. § 405(g). (AR 633-34.) On February 20, 2018, the Appeals Council issued an Order directing the ALJ to reconsider certain particular issues on remand, including Plaintiff's fibromyalgia, the relevant medical source opinions, Plaintiff's residual functional capacity, and Plaintiff's past relevant work.[3] (AR 638-40.)

         ALJ Merrill conducted the second administrative hearing on August 1, 2018. (AR 488-513.) Plaintiff again testified, and was represented by an attorney; a VE also testified. On August 22, 2018, the ALJ issued his second decision on the claim, again finding that Plaintiff was not disabled at any time from her alleged disability onset date through the date of the decision. (AR 461-78.) Thereafter, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-4.) Having exhausted her administrative remedies, Plaintiff filed the Complaint in this action on December 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), 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 August 2018 decision, ALJ Merrill first determined that Plaintiff had not engaged in substantial gainful activity since her alleged disability onset date of September 28, 2013. (AR 464.) At step two, the ALJ found that Plaintiff had the severe impairments of osteoarthritis of the right shoulder status post arthroplasty, obesity, and left hip trochanteric bursitis. (Id.) Conversely, the ALJ found that Plaintiff's type 2 diabetes and degenerative disc disease were non-severe. (AR 466-67.) In addition, the ALJ analyzed Plaintiff's fibromyalgia and concluded that it was “not medically determined.” (AR 464.) The ALJ then made the alternative finding that, even if Plaintiff's fibromyalgia was found to be medically determined, it “would be non-severe, ” as “[t]he condition does not more than minimally affect [Plaintiff's] ability to function.”[4] (AR 466.) At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 468-69.)

         Next, the ALJ determined that Plaintiff had the RFC to perform “light work, ” as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except:

[Plaintiff] can lift twenty pounds occasionally and ten pounds frequently. [She] can stand and walk for six hours and sit for six hours in an eight-hour workday. [She] can frequently push and pull with her right upper extremity. [She] can balance on an unlimited basis[;] occasionally climb ramps, stairs, ladders, ropes, and scaffolds[;] and occasionally stoop, kneel, crouch, and crawl. [She] can frequently reach with her right upper extremity.

(AR 469.) Given this RFC, based on testimony from the VE, the ALJ found that Plaintiff was able to perform her past relevant work as a housekeeping supervisor and a housekeeper. (AR 477-78.) The ALJ concluded that Plaintiff had not been under a disability from her alleged disability onset date of September 28, 2013 through the date of the decision. (AR 478.)

         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. ...

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