Lynn M. v. Berryhill

• Court: U.S. District Court — District of Vermont
• Writing for the Court: Geoffrey W. Crawford, Chief Judge United States District Court
• Decision Date: 08 January 2019
• Docket Number: Case No. 5:17-cv-80
• Citation: Lynn M. v. Berryhill, Case No. 5:17-cv-80 (D. Vt. Jan 08, 2019)
• Parties: LYNN M., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

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

Case No. 5:17-cv-80

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

January 8, 2019

ORDER

(Docs. 12, 15)

Plaintiff Lynn M. brings this action under 42 U.S.C. § 405(g), requesting reversal of the decision of the Commissioner of Social Security denying her applications for disability insurance benefits (DIB) and supplemental security income (SSI). (Doc. 5.) Pending before the court is Plaintiff's motion to reverse the decision of the Commissioner (Doc. 12) and the Commissioner's motion to affirm (Doc. 15). For the reasons stated below, Plaintiff's motion is DENIED, and the Commissioner's motion is GRANTED.

Background

Plaintiff was 41 years old on her alleged disability onset date of December 15, 2014. She states that she is unable to work due to severe depression, posttraumatic stress disorder (PTSD), fibromyalgia, and irritable bowel syndrome (IBS). (AR 855.) She asserts that her PTSD stems from a time when she was younger (AR 857-58), and that the symptoms worsened when her parents passed away in 2011 and 2012. (AR 858.) She states that she has experienced severe depression since around the time that her parents died. (See AR 855.) She was also diagnosed with fibromyalgia around that time. (See AR 858-59.) She began experiencing IBS symptoms after her children were born, but testified that the symptoms worsened around 2011. (AR 859-60.)

Plaintiff is divorced with two adult children. (AR 845.) She lives with her boyfriend. (Id.) She has a driver's license and is able to drive. (AR 846.) She graduated from high school and earned an associate's degree in nursing around 2003, although she was not able to pass the requisite examinations to obtain a nursing license. (Id.) Plaintiff's last employment was at a hair salon, which she left in 2011 to care for her ailing father. (AR 847.) She previously worked as a stock clerk and as a nurse assistant and secretary. (See AR 849-54.)

Regarding her daily activities, Plaintiff testified that she is able to take care of her personal hygiene. (AR 864.) She does the laundry once a week but testified that it takes her a while to fold the laundry and sometimes she does not fold it at all. (AR 865.) She testified that she could never stand and do a whole sink of dishes. She has no glass in her house because her hands have been going numb since around 2015 and she drops things. She likes to draw and color, and does crochet depending on how her arms and hands feel. She testified that she does a lot of reading and that she walks every day. (Id.) Her doctors have encouraged walking, and she typically walks for 15 minutes down and up her long driveway. (AR 865-66.) Her favorite hobby is gardening, which she does up to a half hour a day, but which she cannot do alone because she sometimes cannot get up off the ground by herself. (AR 866.)

Plaintiff filed applications for DIB and SSI on March 30, 2015. (AR 913-14.) Her claims were denied initially on June 23, 2015 (id.), and upon reconsideration on July 24, 2015. (AR 947-48.) She requested a hearing, and Administrative Law Judge (ALJ) Joshua Menard conducted a hearing on August 4, 2016. (AR 841-76.) Plaintiff appeared at the hearing and was represented by Marc Pepin. Vocational Expert (VE) James Soldner also testified. ALJ Menardissued an unfavorable decision on September 19, 2016. (AR 24-35.) The Appeals Council denied Plaintiff's request for review (AR 1), and she appealed to this court on May 10, 2017. (Doc. 5.)

ALJ Decision

Social Security Administration regulations set forth a five-step, sequential evaluation process to determine whether a claimant is disabled. McIntyre 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, 416.920. The claimant bears the burden of proving her 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 September 19, 2016 decision, ALJ Menard first determined that Plaintiff has not engaged in substantial gainful activity since December 15,2014, the alleged onset date. (AR 26.) At step two, the ALJ found that Plaintiff's severe impairments are fibromyalgia syndrome, IBS, a mood disorder, and an anxiety disorder. (AR 27.) The ALJ also found that Plaintiff has other non-severe impairments, including tachycardia and headaches. (AR 28-29.) At step three, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (AR 29.)

Next, the ALJ concluded that Plaintiff has the residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)¹ except as follows:

[S]he can understand, remember and carry out simple, routine tasks. She can occasionally interact with supervisors, co-workers and the public. She can deal with only few changes in a routine work setting with predictable routines. She requires ready access to bathroom facilities. She is limited from pushing/pulling more than 20 pounds occasionally and 10 pounds frequently.

(AR 30.) At step four, the ALJ concluded that Plaintiff is unable to perform any past relevant work. (AR 33.) At step five, the ALJ considered Plaintiff's age, education, work experience, and RFC, and concluded that there are jobs that exist in significant numbers in the national economy that Plaintiff could perform, including mail clerk, assembler plastic hospital products, and fruit distributor (packing). (AR 34.) The ALJ accordingly concluded that Plaintiff has notbeen under a disability, as defined in the Social Security Act, from December 15, 2014 through the date of the decision. (AR 35.)

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 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 means 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Poupore, 566 F.3d at 305 (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 remedialstatute to be broadly construed and liberally applied." Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).

Analysis

On appeal, Plaintiff argues that the ALJ failed to properly assess her physical limitations associated with fibromyalgia and IBS, and that evidence added to the record by the Appeals Council after the ALJ's decision shows greater mental limitations than the limitations in the RFC. (Doc. 12 at 1, 15.) The Commissioner maintains that the ALJ's decision is supported by substantial evidence and complies with applicable legal standards. (Doc. 15 at 1.)

I. Physical Limitations—Fibromyalgia

A. Step-Three Analysis and Listing 14.09

According to Plaintiff, the "primary problem" with the ALJ's RFC analysis is that the ALJ focused almost entirely on Listing 14.09 and failed to consider the factors in Social Security Ruling 12-2p, 2012 WL 3104869 (July 25, 2012) ("SSR 12-p"), or otherwise conduct a meaningful assessment of her pain symptoms. (See Doc. 12 at 3, 6.) The court accordingly reviews the ALJ's step-three analysis of Plaintiff's fibromyalgia syndrome.

Having found Plaintiff's fibromyalgia to be a "severe" impairment at step two, the ALJ discussed that impairment at step three to...