Morrow v. Commissioner of Social Security

Filing 10

OPINION AND ORDER: The Court GRANTS Plaintiff's 7 MOTION for Order Reversing the Decision of the Commissioner and DENIES Defendant's 8 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 1/30/2017. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Laurie Morrow,
Plaintiff,
v.

Civil Action No. 2:16-cv-107

Nancy A. Berryhill, Acting Commissioner
of Social Security Administration,
Defendant.

OPINION AND ORDER
(Docs. 7, 8)
Plaintiff Laurie Morrow 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 denying her application for disability insurance benefits (DIB).
Pending before the Court are Morrow’s motion to reverse the Commissioner’s decision
(Doc. 7) and the Commissioner’s motion to affirm the same (Doc. 8). For the reasons
stated below, Morrow’s motion is GRANTED, the Commissioner’s motion is DENIED,
and the matter is REMANDED for further proceedings and a new decision.
Background
Morrow was 58 years old on her alleged disability onset date of November 1,
2011. She attended college at the University of Vermont and thereafter obtained an M.A.
and a Ph.D. in English from the University of Kansas. (AR 30–31.) She was an English
Professor at Louisiana State University from approximately 1981 until 2000. (AR 31,

165.) Soon thereafter, she and her husband moved to Vermont, seeking better medical
care for their autistic son. (AR 31.) Since 2001, Morrow has held various jobs, including
as a radio talk show creator and host, a public relations representative, a grant writer, a
fundraiser, and an adjunct professor at St. Michael’s College. (AR 31–33, 41, 165.) She
has also done volunteer work with several groups, including the Heritage Foundation,
Washington County Mental Health Services, and the Vermont Autism Task Force.
In March 2013, Morrow filed her DIB application, alleging that she has been
unable to work since November 1, 2011, due to anxiety with panic attacks, attention
deficit disorder (ADD), depression, insomnia, a thyroid condition, transient ischemic
attack, high blood pressure, and spinal arthritis. (AR 147–48.) Morrow testified at the
administrative hearing that she is unable to work mostly because of her ADD, depression,
anxiety, memory problems, back pain, and shoulder pain. (AR 34, 36–39.) She stated
that she wants to work and she makes an effort to keep her mind active, but she cannot
work fast enough; she is unable to meet deadlines; and she does not finish what she starts.
(AR 34–36.) Morrow further stated that, in a typical day, she sleeps for 12 to 14 hours,
attempts to do job search work, tries to write “something,” sometimes makes dinner, and
does volunteer work. (AR 35–36.)
Morrow’s disability application was denied initially and upon reconsideration, and
she timely requested an administrative hearing. On September 17, 2014, Administrative
Law Judge (ALJ) Thomas Merrill conducted a hearing on the application. (AR 27–43.)
Morrow appeared and testified, and was represented by counsel. A vocational expert
(VE) also testified at the hearing. A few months later, on December 8, the ALJ issued a
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decision finding that Morrow was not disabled under the Social Security Act from her
alleged disability onset date through the date of the decision. (AR 13–22.) Thereafter,
the Appeals Council denied Morrow’s request for review, rendering the ALJ’s decision
the final decision of the Commissioner. (AR 1–4.) Having exhausted her administrative
remedies, Morrow filed the Complaint in this action on April 18, 2016. (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
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
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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, ALJ Merrill first determined that, although
Morrow had engaged in “work-like activity” during the alleged disability period, she had
not engaged in “substantial gainful activity.” (AR 15.) At step two, the ALJ found that
Morrow had the following medically determinable impairments: “an ankle impairment; a
back impairment; obstructive sleep apnea; transient ischemic attack; depression; anxiety;
and attention deficit hyperactive disorder.” (Id.) Nevertheless, the ALJ determined that
none of these impairments (alone or in combination) was severe, meaning they had not
“significantly limited . . . [Morrow’s] ability to perform basic work-related activities for
12 consecutive months” during the alleged disability period. (AR 16.) Without
proceeding to the remaining steps of the five-step sequential evaluation, the ALJ
concluded that Morrow had not been under a disability from her alleged disability onset
date of November 1, 2011 through the date of the decision. (AR 22.)

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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 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 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);
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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
Morrow claims the ALJ erred at step two of the sequential evaluation in finding
that she does not have a severe impairment or combination of impairments. Specifically,
Morrow asserts that the ALJ’s step-two finding is not supported by substantial evidence,
as “[n]early every medical doctor who has evaluated [Morrow’s] claim ha[s] determined
that [she] has one or more impairments that [is] severe.” (Doc. 7 at 12.) Morrow claims
the ALJ improperly substituted his own lay opinion for that of “all competent medical
opinions.” (Id. at 13.) In response, the Commissioner argues that the ALJ’s step-two
finding is supported by substantial evidence and complies with the applicable legal
standards. Specifically, the Commissioner asserts that this finding is supported by the
treatment notes of Morrow’s medical providers and by Morrow’s ability to seek
employment and engage in “full-time volunteer activities” during the alleged disability
period. (Doc. 8 at 16.)
The claimant bears the burden at step two of the sequential evaluation to establish
that his or her impairment is “severe,” meaning it “significantly limit[s] [his or her]
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1521(a); see 20
C.F.R. § 404.1520(c). Despite this strong language, the step-two severity assessment
“may do no more than screen out de minimis claims.” Dixon v. Shalala, 54 F.3d 1019,
1030 (2d Cir. 1995) (citing Bowen v. Yuckert, 482 U.S. 137, 158 (1987)). To that end,
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Social Security Ruling (“SSR”) 85-28 provides: “A claim may be denied at step two only
if the evidence shows that the individual’s impairments, when considered in combination,
are not medically severe, i.e., do not have more than a minimal effect on the [claimant’s]
physical or mental ability(ies) to perform basic work activities.” 1985 WL 56856, at *3
(1985). The Ruling further states: “An impairment or combination of impairments is
found ‘not severe’ and a finding of ‘not disabled’ is made at this step when medical
evidence establishes only a slight abnormality or a combination of slight abnormalities
which would have no more than a minimal effect on an individual’s ability to work.” Id.
(emphasis added) (citing 20 C.F.R. §§ 404.1520, 404.1521, 416.920(c), 416.921); see
also SSR 96-3p, 1996 WL 374181, at *1 (July 2, 1996); Griffeth v. Comm’r of Soc. Sec.,
217 F. App’x 425, 428 (6th Cir. 2007) (“The purpose of the second step of the sequential
analysis is to enable the Commissioner to screen out ‘totally groundless claims.’”)
(quoting Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 89 (6th Cir. 1985)).
As explained below, the ALJ’s finding that Morrow did not have a severe mental
or physical impairment during the alleged disability period is not supported by substantial
evidence. Rather, the evidence demonstrates that Morrow’s impairments caused more
than a slight abnormality and had more than a minimal effect on her ability to perform
basic work activities during the alleged disability period.
I.

Mental Impairments
The ALJ’s step-two error is particularly evident regarding Morrow’s mental

impairments. Two agency consultants and two treating physicians opined that Morrow
had severe mental impairments. Specifically, in April 2013, agency consultant Joseph
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Patalano, Ph.D., listed the following of Morrow’s diagnoses as “[s]evere”: affective
disorders, ADD/attention deficit hyperactivity disorder (ADHD), anxiety disorders, and
organic mental disorders. (AR 50.) Dr. Patalano also opined, after reviewing the record,
that Morrow had “[m]oderate” restrictions in activities of daily living; difficulties in
maintaining social functioning; and difficulties in maintaining concentration, persistence,
or pace (id.); and was capable of only “routine collaborating with supervisor[s] and
limited interaction with coworkers” (AR 53). Agency consultant Roy Shapiro, Ph.D.,
made the same opinions in June 2013. (AR 63–64, 67.)
In December 2012, treating neurologist Deborah Black, MD, found that Morrow’s
CNS Vital Signs profile was “consistent with ADHD,” and that “[i]t is likely that
associated situational and affective factors have an additional negative impact on
[Morrow’s] ability to sustain attention and shift attention rapidly and flexibly in the face
of conflicting environmental demands.” (AR 308.) Noting Morrow’s “underlying
ADHD, sleep disturbance[,] and severe psychosocial stressors,” Dr. Black opined that
Morrow “may qualify for [d]isability on the basis of her affective symptoms.” (Id.)
Finally, in July 2013, treating primary care physician Joseph Brock, MD–who
treated Morrow approximately every three months beginning in April 2012–opined that
Morrow’s anxiety and depression were likely to interfere with her ability to work and
would reduce her productivity by “20% or more.” (AR 398.) Dr. Brock further opined
that Morrow was incapable of even a low-stress job because of her difficulty in following
complex instructions, her inattention, and her anxiety. (AR 399.) Dr. Brock stated that

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Morrow could do a low-stress job for 20 hours per week, but could not handle a full-time
job, due to her anxiety, depression, and ADD. (AR 402.)
Despite these opinions from two treating physicians and two consulting
psychologists, the ALJ found that Morrow had no severe mental impairment. In making
this finding, the ALJ improperly “substitute[d] his own judgment” for that of competent
medical professionals. Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“[W]hile an
[ALJ] is free to resolve issues of credibility as to lay testimony or to choose between
properly submitted medical opinions, he is not free to set his own expertise against that of
a physician who [submitted an opinion to or] testified before him.”) (alterations in
original) (internal quotation marks omitted). Furthermore, the ALJ imprecisely stated,
several times, that Morrow was able to “sustain a full[-]time work schedule volunteering
for . . . the Heritage Foundation[,] . . . the board of directors at Washington County
Mental Health[,] and the state Autism Board.” (AR 21; see also AR 20; Doc. 8 at 16,
21.) In fact, the record does not indicate that Morrow engaged in full-time volunteer
work for any significant amount of time during the relevant period. At the administrative
hearing, Morrow testified as follows: “I do volunteer work. I’m on the board of
Washington County Mental Health. And I’[ve] just joined the Vermont [Autism] Task
Force. I’m trying to learn and keep my mind alive. But I can’t plan. And I don’t finish
what I start.” (AR 36.) This testimony does not imply that Morrow did volunteer work
on a full-time basis during the alleged disability period, and the ALJ did not ask Morrow
how frequently and for how long she did volunteer work during that period.

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Regarding Morrow’s work with the Heritage Foundation, the record demonstrates
that she was fired from working there in October 2011, prior to the alleged disability
onset date of November 1, 2011. (AR 165, 375.) With respect to her work with the
Vermont Autism Task Force, a treatment note from January 2014 states that Morrow had
“decided to volunteer for the Autism [Task Force]” and that she “went to a fundraiser in
Barre,” but it “took them [six months] to respond” and she “went to the wrong place.”
(AR 461.) It is unclear what this statement means, but it cannot reasonably be interpreted
to imply that Morrow was volunteering on a full-time basis.
The only evidence that could possibly support a claim that Morrow did full-time
work during the alleged disability period, either remunerative or voluntary, is a treatment
note dated January 27, 2012 which states: “She is working at a computer for over
12 hours a day, more than 5 days a week.” (AR 224.) But it is not clear from this note
(or any other document in the record) what “work” Morrow was doing at a computer at
that time, or for how long. Other records indicate that she may have been helping to raise
holiday funds for a church (AR 369), or doing some freelance writing (AR 142, 163). In
either instance, the record does not support the ALJ’s repeated finding that Morrow
“sustain[ed] a full[-]time work schedule volunteering” during the alleged disability
period. (AR 21.) Rather, the record indicates that Morrow did not work full time during
that period and experienced difficulties working before then, mostly due to her mental
impairments including depression, anxiety, and ADD/ADHD. For example, Morrow’s
March 2013 Function Report states that she often did not get dressed or wear clean
clothing and did not take care of her personal hygiene for days at a time because she
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“mentally d[id]n’t feel like she need[ed] to.” (AR 174.) And Morrow testified at the
September 2014 hearing that she was sleeping for 12–14 hours each day. (AR 35.)
For these reasons, the ALJ erred in finding that Morrow did not have a severe
mental impairment or combination of impairments during the alleged disability period.
II.

Physical Impairments
The ALJ also erred in finding that Morrow had no severe physical impairment or

combination of impairments during the relevant period. Again, multiple medical sources
opined that Morrow’s physical impairments limited her ability to do work activities.
Regarding the agency consultant opinions, although Dr. Patalano and Dr. Francis Cook
opined that Morrow had no severe physical impairments (AR 49, 50), Dr. Shapiro opined
that Morrow’s “spine disorders” were “[s]evere” (AR 63), and Dr. Geoffrey Knisely
found that Morrow suffered from “episodic” back pain that would limit her ability to lift
and carry heavy objects (AR 65). The record contains objective medical evidence to
support these opinions. (See, e.g., AR 263 (“[d]egenerative disc disease and facet
arthropathy”), 290 (“[d]ecreased functional mobility, decreased hip strength[,] and low
back pain,” “Decreased endurance. Decreased strength. Difficulty bending. Difficulty
completing job tasks. Difficulty lifting. Difficulty with prolonged standing.”), AR 342
(“arthritis of lower back . . . explains persistent low back pain”).) For example, a
September 2012 treatment note from Dr. Brock states: “[Morrow] presents with signs and
symptoms consist[e]nt with disc degeneration as evidenced by increased pain with gait
and functional mobility tasks. . . . She also presents with left [lower extremity] decreased
strength and decreased patellar reflexes.” (AR 290.)
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In addition to the agency consultant opinions and supporting medical evidence,
treating physician Dr. Brock opined in a July 2013 RFC Questionnaire1 that Morrow
could lift and carry up to 20 pounds occasionally and less than 10 pounds frequently
(AR 400); could only occasionally stoop, crouch/squat, climb stairs, and balance; and
could “[n]ever to [r]arely” climb ladders (AR 401). In September 2014, Dr. Brock
completed another Questionnaire, after reviewing the results of a Functional Capacity
Evaluation (FCE) performed on Morrow in December 2013. (AR 491; see AR 424–31.)
Dr. Brock agreed with the FCE’s conclusion that Morrow could tolerate only sedentary
work due to her chronic low back pain, deconditioning, and lumbar degenerative disc
disease, which he found was reflected in August 2012 x-ray results. (AR 491.) More
specifically, Dr. Brock concurred with the FCE’s finding that Morrow could lift
only10 pounds occasionally. (Id.) Dr. Brock stated that Morrow had had these
limitations for three years. (Id.)
The ALJ gave “minimal weight” and “no probative value” to these opinions of
Dr. Brock2 because: (a) “the doctor merely completed a checklist form,” “circl[ing] the
most limiting choices on th[e] form”; (b) “the doctor’s opinion is inconsistent with his
own treatment notes”; and (c) “the . . . opinion is without substantial support from the
other evidence of record.” (AR 19.) Substantial evidence–including Dr. Brock’s own

1

For the most part, the limitations described in this Questionnaire are a result of Morrow’s
mental impairments including depression and anxiety (see AR 397–99), but presumably the
lifting/carrying, stooping, climbing, and other similar limitations (see AR 400–01) are mostly a result of
Morrow’s physical impairments including her back pain.
2

Later in the decision, the ALJ states that he gave “no probative value” to Dr. Brock’s opinion
regarding Morrow’s mental functioning. (AR 22.)

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treatment notes and Questionnaire responses–does not support the ALJ’s assessment of
Dr. Brock’s opinions. (See, e.g., AR 263, 290, 341–42, 397–402, 424–31, 491.) Even if
substantial evidence did support that assessment, the ALJ still erred in finding that none
of Morrow’s physical impairments was severe at step two, given that several medical
sources, treating and non-treating, opined that Morrow’s back pain had more than a
minimal effect on her ability to perform basic work activities during the alleged disability
period.
Conclusion
The Second Circuit recently reiterated that “the standard for a finding of severity
under Step Two of the sequential analysis is de minimis and is intended only to screen out
the very weakest cases.” McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (citing
Dixon, 54 F.3d at 1030). This is not one of those “very weakest” cases; rather, there is
substantial evidence demonstrating that Morrow’s mental and physical impairments had
more than a minimal effect on her ability to do basic work activities during the alleged
disability period, and thus were “severe.” The Court cannot find the ALJ’s step-two error
harmless because the ALJ concluded his analysis at that step without proceeding to the
remaining steps of the sequential evaluation, and thus failed to account for any of
Morrow’s impairments on their own or in combination in determining a RFC for
Morrow. See, e.g., Parker-Grose v. Astrue, 462 F. App’x 16, 18 (2d Cir. 2012).
Furthermore, the VE testified that if the mental limitations identified by the agency
consultants are accurate, Morrow could not return to her past relevant work (AR 42); and

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given Morrow’s age, she would likely be deemed disabled under the Medical-Vocational
Guidelines if she were no longer capable of skilled or semiskilled work.
Accordingly, the Court GRANTS Morrow’s motion (Doc. 7), DENIES the
Commissioner’s motion (Doc. 8), and REMANDS for further proceedings and a new
decision in accordance with this ruling.
Dated at Burlington, in the District of Vermont, this 30th day of January, 2017.

/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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