Frank G. v. Comm'r of Soc. Sec.

FRANK G., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Case No. 5:17-cv-103

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

February 4, 2019

OPINION AND ORDER

(Docs. 9, 10)

Plaintiff Frank G. 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).¹ (Doc. 1; Doc. 9 at 1.) Currently pending is Plaintiff's motion to reverse the decision of the Commissioner (Doc. 9) and the Commissioner's motion to affirm (Doc. 10). For the reasons stated below, Plaintiff's motion is GRANTED, and the Commissioner's motion is DENIED.

Background

Plaintiff was 50 years old on his alleged disability onset date of February 1, 2014. (AR 64.) He states that he is unable to work due to spinal stenosis and depression. (AR 187.)

Plaintiff has a GED level of education. (AR 36, 188.) He lives with his girlfriend and her mother. (AR 36.) He previously worked in bridge construction and as a loader operator. (AR 46, 188, 194.) He was laid off from his job as a loader operator at the end of 2013.

In 2013, Plaintiff sought medical advice for low back pain that radiated into his legs, neck pain and stiffness, right shoulder pain, weakness in his arms and fingers, and headaches. (AR 44, 256.) He received discectomy and fusion surgery at C5-6 and C6-7 on February 6, 2014. (AR 274-75.) Plaintiff testified that the surgery did not help with his symptoms. (AR 45.) He testified that his headaches start at the back of his head and radiate over the top of his head, causing him to experience "a dull ache all day long." (Id.) When asked whether certain activities trigger or exacerbate these headaches, he replied, "If I try to pick something heavy up, you know, just picking stuff up, moving my neck all the time it makes my arms weak." (Id.) Plaintiff also testified that he suffers from back problems, including an inability to bend over or stand up straight. (Id.) He testified that he experiences pain in his lower back that radiates down his leg, occasionally resulting in a "sharp pain" in his knee that makes him fall, particularly on the stairs. (AR 45-46.) In a memorandum submitted to the administrative law judge before the hearing, Plaintiff alleged that "neck issues will limit him from frequent movements with his head." (AR 237.)

Plaintiff has not worked since his alleged onset date. However, he testified that he occasionally performs "odd jobs" at the place where he lives, such as laying floor tile, painting and putting down baseboard, in exchange for reduced rent. (AR 37-38.)

Plaintiff protectively filed an application for DIB on July 8, 2014. (AR 82-83.) His claim was denied initially on October 2, 2014 (AR 98), and on reconsideration on December 16, 2014 (AR 109). He requested a hearing on January 12, 2015. (AR 109.) Administrative Law Judge (ALJ) Matthew Levin conducted a hearing on June 21, 2016. (AR 57.) Vocational Expert (VE) Louie Laplant also testified. (AR 54-61.) ALJ Levin issued an unfavorable decision onSeptember 15, 2016. (AR 20-28.) The Appeals Council denied Plaintiff's request for review (AR 1), and he appealed to this court on May 15, 2017 (Doc. 1).

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. 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 12, 2016 decision, ALJ Matthew Levin first determined Plaintiff has not engaged in substantial gainful activity since February 1, 2014. (AR 22.) At step two, the ALJ found that Plaintiff has the following severe impairment:degenerative changes of the spine, status post cervical fusion surgery. (Id.) The ALJ also found that Plaintiff has other non-severe impairments, including: chronic headaches, a rash on his hands, and depression. At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, meets or medically equals a listed impairment.

Next, the ALJ determined that Plaintiff has the residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. § 404.1567(b)² with the following exceptions:

[He] is limited from lifting/carrying more than 10 pounds frequently and [sic] occasionally. He must avoid all ladders/ropes/scaffold, but he can occasionally climb stairs. He has no limitations on balancing, kneeling and crouching, but he can only occasionally crawl and stoop. He is limited to no more than frequent bilateral overhead, forward and lateral reaching. He should avoid all hazards.

(AR 25.) At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. (AR 26.)

At step five, the ALJ followed the Medical-Vocational Guidelines (the "Grid Rules") contained in 20 C.F.R. Part 404, Subpart P, Appendix 2. The ALJ found that Plaintiff was 50 years old when he allegedly became disabled and identified Plaintiff as "an individual closely approaching advanced age." (AR 26.) The ALJ found that Plaintiff has at least a high school education and is able to communicate in English and that "[t]ransferability of job skills is dispositive in this case." (Id.) After considering Plaintiff's age, education, work experience, andRFC, the ALJ found that there are jobs in significant numbers in the national economy that Plaintiff could perform, including assembler of plastic hospital parts, ticket taker/seller, and toll collector. (AR 27.) The ALJ accordingly concluded that Plaintiff has not been under a disability, as defined in the Social Security Act, from February 1, 2014 through the date of the decision. (Id.)

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 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 "clearlyerroneous" 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).

Analysis

Plaintiff raises two arguments on appeal. First, he claims that substantial evidence does not support the ALJ's credibility determination. (Doc. 9 at 4.) Second, he contends that the ALJ failed to adequately accommodate all the limitations relating to his cervical spine impairment when determining his RFC.³ (Id. at 8.) The Commissioner maintains that the ALJ's decision is supported by substantial evidence and complies with applicable legal standards. (Doc. 10 at 1.)

The court begins with Plaintiff's second argument. Plaintiff claims that the ALJ erred in assessing his RFC by failing to consider his allegations relating to his limited ability to move his head and neck. (Doc. 9 at 8.) As a result, Plaintiff contends that the RFC hypotheticals posed to the VE were not supported by substantial evidence, and therefore the VE's responses cannot support the ALJ's findings at step five. (Id. at 8-9.) "An ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as...