Shepard v. Commissioner of Social Security
Filing
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OPINION AND ORDER: the Court DENIES Plaintiff's 8 MOTION for Order Reversing the Decision of the Commissioner and GRANTS Defendant's 11 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 5/7/2014. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Donald R. Shepard,
Plaintiff,
v.
Civil Action No. 2:13-cv-172
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 8, 11)
Plaintiff Donald Shepard brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, requesting review and remand of the decision of the Commissioner
of Social Security (“Commissioner”) finding that he was not disabled and not entitled to
Supplemental Security Income (“SSI”). Pending before the Court are Shepard’s motion
to reverse the Commissioner’s decision (Doc. 8), and the Commissioner’s motion to
affirm the same (Doc. 11). For the reasons stated below, the Court DENIES Shepard’s
motion, and GRANTS the Commissioner’s motion.
Background
Shepard was 40 years old on his initial alleged disability onset date of
June 21, 2008. His work history is in the construction field, but he has not worked since
2001. (AR 178, 559, 875.) In October of that year, he left his job operating heavy
construction equipment after he was injured in a motorcycle accident. (AR 875.)
Shepard had behavioral problems in school and dropped out in the tenth grade.
(AR 559, 875.) He later attained a GED while incarcerated. (AR 559.) During the
alleged disability period, Shepard resided either with friends, his brother and his family,
or by himself in a camper. (AR 36, 559, 587, 875.) He is divorced, and has two children
who were approximately ages 15 and 21 during the alleged disability period and resided
out of state with their mother. (AR 559, 587, 874–75.) He has a history of alcohol and
cocaine dependence starting at age 17. (AR 559, 875.) A number of legal charges have
been filed against him, and he has served approximately 15 years in prison altogether,
starting at age 15, for charges including domestic assault, theft of a vehicle, driving
without a license, serving alcohol to minors, and driving while intoxicated. (Id.)
Shepard suffers from numerous medical problems mostly arising from two
motorcycle accidents, the first in October 2001 and the second in June 2008. Those
medical problems include chronic knee pain, pain in his left arm/shoulder, and difficulty
thinking/remembering. (AR 524, 558.) In the 2008 accident, Shepard sustained multiple
fractures, requiring surgeries on his shoulder, left elbow, left jaw, and right lower leg;
leaving him with hardware in his left elbow and right leg. (AR 210–11, 649, 666–68,
837.) He also suffers from depression, largely due to his inability to function like he
could before the accident. (AR 878.) He testified at the administrative hearing that he
cannot walk for long distances or stand for extended periods but is able to sit for 45–60
minutes at a time. (AR 40–42.)
In July 2008, Shepard filed applications for SSI and Disability Insurance Benefits
(“DIB”), alleging disability starting on June 21, 2008, the date of his second motorcycle
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accident. (AR 129.) His DIB claim was denied because he failed to meet the insured
status requirements. (Id.) The SSI claim was adjudicated and allowed on
January 15, 2009 due to a severe impairment plus vocational factors, but it was denied on
January 27, 2009 either for failure to cooperate or failure to give permission to contact
financial institutions. (AR 130.) Shepard did not appeal those decisions regarding his
2008 claim (referred to herein as “the prior claim”).
In September 2009, Shepard filed another SSI application, alleging disability due
to chronic knee pain, memory problems, difficulty sleeping, standing and walking
limitations, and myodysplasia syndrome causing joint soreness and stiffness. (AR 53,
119–24, 153.) This application was denied initially and upon reconsideration, and
Shepard timely requested an administrative hearing. The hearing was conducted on
November 10, 2011 by Administrative Law Judge (“ALJ”) James D’Alessandro. (AR
28–44.) Shepard appeared and testified, and was represented by an attorney. On
November 23, 2011, the ALJ issued a decision finding that Shepard was not disabled
since September 1, 2009, the date his application was filed. (AR 15–22.) Thereafter, the
Appeals Council denied Shepard’s request for review, rendering the ALJ’s decision the
final decision of the Commissioner. (AR 1–3.) Having exhausted his administrative
remedies, Shepard filed the Complaint in this action on June 10, 2013. (Doc. 1.)
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
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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]”).
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Employing this sequential analysis, ALJ D’Alessandro first determined that
Shepard had not engaged in substantial gainful activity since his application date of
September 1, 2009. (AR 17.) At step two, the ALJ found that Shepard had the severe
impairment of status post fracture of upper and lower limbs. (Id.) Conversely, the ALJ
found that Shepard’s depression was non-severe, given that it did not have more than a
minimal effect on Shepard’s ability to do basic physical or mental work activities. (AR
17–18.) At step three, the ALJ found that none of Shepard’s impairments, alone or in
combination, met or medically equaled a listed impairment. (AR 18.) Next, the ALJ
determined that Shepard had the RFC to perform the full range of sedentary work, as
defined in 20 C.F.R. § 416.967(a). (Id.) Given this RFC, the ALJ found that, although
Shepard was unable to perform his past relevant work, he could perform other jobs
existing in significant numbers in the national economy. (AR 21–22.) The ALJ
concluded that Shepard had not been under a disability since September 1, 2009, the date
his application was filed. (AR 22.)
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
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substantial gainful work which exists in the national economy.” 42 U.S.C. §
423(d)(2)(A).
In considering a 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 fact[-]finder.”). “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
Shepard contends that the ALJ erred in failing to consider whether he was disabled
starting on June 21, 2008, the onset date alleged in his prior claim; and that the ALJ
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should have considered reopening that claim.1 (Doc. 8-1 at 3, 5.) Shepard further claims
that he was “clearly disabled on June 21, 2008 when he was involved in the [motorcycle]
accident,” and that the ALJ “de facto reopened” the prior claim by considering the period
from June 2008 until the date of the ALJ’s decision. (Id. at 6.) Given this reopening of
the prior claim, Shepard argues that a presumption of continued disability should have
governed the ALJ’s analysis of the current claim for one year following the January 2009
disability allowance, requiring the ALJ to determine when, if at all, Shepard achieved
medical improvement such that his disability ended. (Doc. 12 at 3; Doc. 14 at 2–3.)
Additionally, Shepard asserts that the ALJ erred in failing to evaluate his left arm
impairment, which Shepard claims is relevant to the current claim regardless of whether
the prior claim was reopened. (Doc. 8-1 at 7; Doc. 12 at 4–6.)
In response, the Commissioner concedes that the ALJ “de facto” reopened the
prior claim and considered the period from June 2008 through the date of the decision.
(Doc. 11 at 7; Doc. 13 at 2 n.1; see also Doc. 12 at 2; Doc. 14 at 1.) However, the
Commissioner asserts that regardless of the onset date, Shepard was not disabled for any
12-month period and thus the presumption of continued disability does not apply. (Doc.
11 at 7; Doc. 13 at 2.) The Commissioner also contends that the presumption does not
apply because Shepard never began receiving disability benefits, given his failure to
cooperate with the Agency’s request for financial information. (Doc. 13 at 2.) Further,
the Commissioner claims that, even if the presumption of continued disability applied, it
1
Notably, at the November 2011 administrative hearing, Shepard did not request that the ALJ
reopen the prior claim, and advised that he was not aware of any other evidence that should be obtained
before a decision was made on the current claim. (AR 30.)
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has been “dismantled” due to Shepard’s “subsequent improvement.” (Id.) Finally, the
Commissioner argues that substantial evidence supports the ALJ’s evaluation of
Shepard’s left arm impairment. (Doc. 11 at 9–11.)
I.
ALJ’s Analysis of Prior and Current Claims
As explained above, the record demonstrates that Shepard’s July 2008 SSI claim
was adjudicated and “allow[ed]” on January 15, 2009 due to a severe impairment plus
vocational factors. (AR 130.) The claim was denied, however, on January 27, 2009
either due to Shepard’s failure to cooperate or his failure to give permission to contact
financial institutions. (Id.) Shepard did not appeal that denial.
The parties agree that, in deciding the current claim, the ALJ constructively
reopened Shepard’s prior (July 2008) claim, reviewing the entire record and considering
evidence from the date of the June 2008 motorcycle accident through the date of his
November 2011 decision.2 See Byam v. Barnhart, 336 F.3d 172, 180 (2d Cir. 2003) (“[i]f
the Commissioner reviews the entire record and renders a decision on the merits, the
earlier decision will be deemed to have been reopened, and any claim of administrative
res judicata to have been waived”) (internal quotation marks omitted). Some circuits
have held that in cases where there was a prior finding of disability, the Commissioner
has the burden of coming forward with evidence that a claimant’s condition improved
before terminating disability benefits. See, e.g., Iida v. Heckler, 705 F.2d 363, 365 (9th
Cir. 1983); Richardson v. Heckler, 750 F.2d 506, 509 (6th Cir. 1984). In so holding,
2
The ALJ referenced evidence from the prior period (between June 2008 and September 2009)
both in his written decision (AR 17–18, 20–21) and at the administrative hearing (AR 32).
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those circuits recognize that a presumption of continuing disability arises from the initial
determination of disability, and that, in the absence of evidence that the claimant’s
condition has improved, the claimant continues to be disabled. Id. (accord Dotson v.
Schweiker, 719 F.2d 80, 82 (4th Cir. 1983); Kuzmin v. Schweiker, 714 F.2d 1233, 1237
(3d Cir. 1983); Simpson v. Schweiker, 691 F.2d 966, 969 (11th Cir. 1982); Rivas v.
Weinberger, 475 F.2d 255, 258 (5th Cir. 1973)).
Even when a claimant is entitled to the benefit of a presumption that his disability
remains, however, “the burden is still on h[im] to prove h[is] case.” Patti v. Schweiker,
669 F.2d 582, 587 (9th Cir. 1982). All the presumption does is impose on the
Commissioner “a burden to come forward with evidence that [the claimant’s] condition
has changed.” Id. As Judge Weinstein explained:
As long as the original condition continues unimproved . . .[,] the
presumption of disability may be relied upon by the claimant. As a result[:]
[(1)] the [Commissioner] . . . may not base a termination of benefits on the
ground that the original disability determination was mistaken, and (2)
proof of the continuance of the original medical condition should
automatically lead to a continuation of the benefits absent substantial
evidence to the contrary.
Edwards v. Sec’y of Dept. of Health and Human Servs., 572 F. Supp. 1235, 1240
(E.D.N.Y. 1983); see Schauer v. Schweiker, 675 F.2d 55, 59 (2d Cir. 1982) (“we are
unaware of any case in which the [Commissioner’s] termination of benefits previously
awarded has been upheld in the absence of substantial evidence that the recipient’s
disability had ended”). The critical inquiry is whether the ALJ made “clear findings
based upon relevant evidence of changes which have occurred in the claimant’s
condition,” rather than merely reevaluating “stale evidence” from the claimant’s prior
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file. Northrup v. Schweiker, 561 F. Supp. 1240, 1242 (W.D.N.Y. 1983); see Mersel v.
Heckler, 577 F. Supp. 1400, 1405 (S.D.N.Y. 1984) (“the requirement that the
[Commissioner] show some improvement in claimant’s condition provides a more
explicit focus for review, concentrating the determination in termination hearings on a
contrast between fresh evidence that might show a change in claimant’s health, and
previous evidence on which a determination of disability had been based”); Brennan v.
Astrue, 501 F. Supp. 2d 1303, 1310-11 (D. Kan. 2007) (“The court does not imply that
the medical improvement standard must be applied in [all cases where plaintiff was found
eligible for benefits], merely that the decision must include an explanation of the basis
from which one might conclude that plaintiff is not presently disabled although she was
earlier determined to be disabled.”) (emphasis added).
Here, the ALJ made clear findings regarding changes in Shepard’s condition since
the prior claim’s disability onset date of June 2008, and based those findings on fresh
evidence dated from December 2008 until the date of the ALJ decision in November
2011. For example, citing to a March 2010 report from consulting examiner Dr. Lorne
Babb, the ALJ noted that Shepard had not received any “continuing treatment” for a
closed head injury (AR 20 (citing AR 871)). The ALJ also stated that Shepard
“continued to improve” since he was evaluated by examining consultant Dr. Robert
Zelazo in December 2008. (AR 20 (citing AR 585 and referencing AR 868–70).) The
record demonstrates that Shepard’s condition significantly improved from the period
immediately after his June motorcycle 2008 accident and the months following, until the
date of the ALJ’s decision. (See, e.g., AR 584, 598, 869, 878, 904.)
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Specifically, although Shepard was prescribed Vicodin and Dilaudid for pain in
July 2008 (AR 450, 445), as the ALJ noted, Shepard was taking no pain medication in
December 2008, approximately six months after the accident (AR 20, 584).3 About a
month later, in January 2009, agency consultant S. Green stated that she expected
“continued improvement” and thus recommended that a “short 18-month diary” be
recorded.4 (AR 598.) See 20 C.F.R. § 416.990(b)(1), (c) (stating that a “continuing
disability review” will be conducted if a claimant is scheduled for a “medical
improvement expected diary review,” which occurs when the claimant’s impairment(s)
“is expected to improve,” and noting that cases involving fractures are the type of cases
“likely to be scheduled for medical improvement”). In July 2009, a little over a year after
the accident, a St. Albans Health Center examination note records that Shepard had
normal coordination, muscle strength, and tone. (AR 641.) A March 2010 examination
note states that, although Shepard had slightly decreased pronation and supination, he had
normal range of motion in his lower extremities and hips, normal knee extension, and
normal grip strength. (AR 869.) In September 2011, Shepard was taking no pain
medications other than Aleve and ibuprofen. (AR 20, 904; see also AR 171–72
(Function Report recording that Shepard was taking no medication).) In a Function
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Consulting examiner Dr. Zelazo stated: “Shepard had taken narcotic pain medication around
the time of the initial surgery, but he states that he is not using any medication for pain at this time,”
despite reporting “significant discomfort that interferes with ambulation.” (AR 584.)
4
Also noteworthy, even in January 2009, only approximately six months after the June 2008
accident, agency consultant Green opined that Shepard was able to stand and/or walk for at least two
hours and sit for about six hours in an eight-hour workday, consistent with a sedentary work capacity.
(AR 592.) See SSR 83-10, 1983 WL 31251, at *5 (1983) (For sedentary work, “standing or walking
should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total
approximately 6 hours of an 8-hour workday.”).
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Report, Shepard reported that he was able to sit and watch television, prepare simple
meals, vacuum, do the dishes, and walk or ride in a car to the store to buy food. (AR
170–74.) The ALJ correctly observed that these activities are consistent with a sedentary
work capacity. (AR 20–21.)
Shepard asserts that remand is necessary for “clarification” of the ALJ’s decision,
and to further develop the record. (Doc. 12 at 4.) But Shepard fails to identify any
particular evidence that the ALJ neglected to consider, and the record demonstrates that
the ALJ considered all the relevant evidence from the periods under review in both the
prior and current claims. At the administrative hearing, Shepard’s counsel stated that he
was not aware of any other evidence that should be considered. (AR 30.) Overall, the
record—although over 900 pages long—contains little contemporary medical evidence.
Moreover, the ALJ accurately noted that “no treating medical professional opined
limitations beyond [a sedentary RFC].” (AR 21.) The Second Circuit has held that the
ALJ may consider such a lack of evidence in determining a claimant’s claim, stating:
“The [Commissioner] is entitled to rely not only on what the record says, but also on
what it does not say.” Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983).
For these reasons, even if the “presumption of continued disability” applies,
substantial evidence supports the ALJ’s determination that Shepard has showed ongoing
improvement since his June 2008 accident and was not disabled for a 12-month period.
See 20 C.F.R. § 416.909 (“Unless your impairment is expected to result in death, it must
have lasted or must be expected to last for a continuous period of at least 12 months.”).
Shepard’s argument hinges on the assertion that evidence from his prior claim is
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favorable to his current claim, but he points to no specific opinion or other evidence from
either period which demonstrates that he had limitations more disabling than the ALJ
found for a period of 12 months or more.
II.
ALJ’s Analysis of Left Arm Impairment
Nor does the record support Shepard’s contention that his left arm impairment was
disabling for a period of 12 months or more. As the ALJ noted, although a December
2008 evaluation revealed a markedly diminished grip strength and other limitations (AR
20, 585), more recent medical evidence demonstrates that Shepard improved since then,
until in March 2010, he was noted to have normal grip strength and biceps strength of
4+/5 (AR 20, 872). In May 2010, psychological consultant Dr. Theodore Williams
recorded that, although Shepard stated he could not lift heavy objects due to problems
with his left elbow, he could reach, cook, clean his house, use a computer a little, and sit
for extended periods of time. (AR 878.) Also in May 2010, after reviewing the relevant
evidence, agency consultant Margie Morley found that Shepard had no manipulative
limitations. (AR 48, 52.)
The only evidence Shepard relies on in support of his argument that his left arm
impairment was disabling are the January 2009 report of reviewing agency consultant S.
Green (AR 594) and the March 2010 evaluation of consulting examiner Dr. Babb (AR
869). But the ALJ considered these reports in his decision (AR 21) and Shepard
identifies no deficiencies in the ALJ’s analysis. Specifically, the ALJ gave only
“moderate weight” to Green’s 2009 opinion, including the opinion that Shepard was
limited in his ability to do handling tasks, on the grounds that “[a]dditional evidence was
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received after this opinion was formed [which] documents that [Shepard] can perform
work at the sedentary exertional level.” (Id.) As explained above, substantial evidence
supports this finding.
Conclusion
For these reasons, the Court DENIES Shepard’s motion (Doc. 8), GRANTS the
Commissioner’s motion (Doc. 11), and AFFIRMS the decision of the Commissioner.
Dated at Burlington, in the District of Vermont, this 7th day of May, 2014.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
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