New v. Commissioner of Social Security

Filing 9

OPINION AND ORDER granting 6 MOTION for Order Reversing the Decision of the Commissioner; denying 7 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge Geoffrey W. Crawford on 2/8/2017. (esb)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

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MATTHEW NEW,
Plaintiff,
v.
NANCY BERRYHILL, Acting
Commissioner of Social Security, 1
Defendant.

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Case No. 5:16-cv-93

OPINION AND ORDER
(Docs. 6, 7)
Plaintiff Matthew New brings this action under 42 U.S.C. § 405(g), requesting reversal of
the decision of the Commissioner of Social Security denying his applications for supplemental
security income ("SSI") and disability insurance benefits ("DIB"). Pending before the court is
Mr. New's motion to reverse the decision of the Commissioner (Doc. 6) and the Commissioner's
motion to affirm (Doc. 7). For the reasons stated below, the court GRANTS Mr. New's motion,
DENIES the Commissioner's motion, and REMANDS for further proceedings and a new
decision.

Background
Mr. New was 24 years old on his alleged disability onset date of April 20, 2008.
(AR 63.) On that date, he was working as a machine operator for Ellison Surface Technologies,
and he walked off the job because of a conflict with a coworker that he says caused his social
anxiety to reach a "climax." (AR 42, 233.) He has not looked for work since then. (AR 42.) He
testified that, since April 20, 2008, his physical abilities have been limited because of his back.
1

The court has amended the caption to reflect the current Acting Commissioner of Social
Security, who assumed office on January 20, 2017. See Fed. R. Civ. P. 25(d).

(AR 43.) He asserts that he has spinal fractures and five compression fractures. (AR 232.)
Mr. New's fiancee, Stephanie Stewart, testified that she has been living with him since 2007, and
that Mr. New has trouble staying in a still position, needs to shift his body every 15 to
20 minutes, and experiences increasing back pain the longer he stays still. (AR 50.) She further
testified that mornings are particularly difficult for Mr. New, and that it takes one to two hours
for him to be able to move somewhat freely each morning. (AR 50-51.)
Mr. New testified that he has social anxiety and other psychological problems that limit
his ability to work. (AR 45, 47.) He also asserts that he has depression. (AR 232.) Ms. Stewart
testified that Mr. New "has trouble speaking with anybody that's outside of his very small
circle"; that he gets "extremely anxious and nervous and fidgety"; and that he has "trouble
expressing himself directly or indirectly." (AR 51.) She further testified that Mr. New needs
prompting to initiate tasks, and that he has trouble finishing tasks because he gets distracted
easily. (Id. ) 2
Mr. New dropped out of school in the tenth grade; he has not attempted to obtain a GED.
(AR 41--42.) He has previous work experience as a circuit board assembler and as a dishwasher.
(AR 42; AR 283.) He is the father of two young children. He testified that on a typical day he
stays home and tries to take care of them. (AR 46.) He testified that he tries to do some
housework, as best he can, but that he does not do any yard work. (Id.) He plays chess on the
computer occasionally. (AR 47.)

2

The ALJ gave Ms. Stewart's testimony only "limited weight," reasoning in part that she
testified that Mr. New could not sit still and had to keep shifting, whereas the ALJ observed that
Mr. New sat comfortably without shifting during the hearing. (AR 30.) That is not a strong
basis for discounting Ms. Stewart's testimony. See Menardv. Astrue, No. 2:11-CV-42,
2012 WL 703871, at *7 (D. Vt. Feb. 14, 2012) (noting criticism of the so-called "sit and squirm"
index). The ALJ also reasoned that portions of Ms. Stewart's testimony lacked support in the
medical records. (See AR 30.) The court discusses the medical records in detail below.
2

An August 9, 2012 function report-filled out by Ms. Stewart-indicates that Mr. New's
daily activities involve caring for the two children and for pets; that he has no problems with
personal care other than needing reminders to take medication; that he can prepare simple meals
daily; and that, with direction, he can do light repairs and light cleaning around the house,
provided that he takes breaks. (AR 267-69.) 3 The function report further indicates that Mr. New
is able to drive a car and go shopping, but that he is unable to manage money or remember due
dates or deadlines. (AR 270.) According to the report, Mr. New used to enjoy watching TV,
playing video games, hiking, biking, and canoeing, but the only thing he is able to do regularly
now is spend time with the two children. (AR 271.) His social activity is limited to spending
time with his family; he reports being anti-social and having no friends. (AR 271-72.)
According to the function report, Mr. New's physical and other abilities are limited; he can pay
attention for only five minutes, has difficulty following spoken instructions, handles stress and
changes in routine poorly, and fears meeting people and going to crowded places. (AR 272-73.)
Mr. New protectively filed applications for DIB and SSI in April 2012. (AR 202, 206.)
His claims were denied initially on June 6, 2012 (AR 121, 124), and upon reconsideration on
September 7, 2012 (AR 130, 137). He requested a hearing (AR 144), and Administrative Law
Judge (ALJ) Thomas Merrill conducted an administrative hearing on May 19, 2014. (AR 3862.) Mr. New and Ms. Stewart both testified at the hearing, where Mr. New was represented by
Attorney Bryden F. Dow. Vocational Expert (VE) Christine Spaulding also testified.
On June 25, 2014, the ALJ issued a decision finding Mr. New not disabled under the
Social Security Act from his alleged onset date of April 20, 2008 through the date of the
decision. (AR 20-32.) Mr. New appealed, and on February 10, 2016 the Appeals Council
3

In addition, the record contains an April 26, 2012 function report, also filled out by
Ms. Stewart. (AR 251-58.) The April report is substantially similar to the August report.
3

denied his request for review. (AR 1.) Mr. New filed his Complaint on April 11, 2016.
(Doc. 3.)

ALJ Decision
The ALJ is required to follow the five-step process in determining a claimant's disability.

Machia v. Astrue, 670 F. Supp. 2d 326, 333 (D. Vt. 2009) (internal citation omitted);
see 20 C.F.R. §§ 404.1520; 416.920. The answer at each step determines ifthe next step need be
addressed. Machia, 670 F. Supp. 2d at 330. At the first step the ALJ determines ifthe claimant
has engaged in Substantial Gainful Activity since the alleged onset date of his disability. Id. If
the answer is no, step two then asks if the claimant has any "impairments" that are "severe." Id.
If there is one or more severe impairment, step three evaluates whether any of these

impairments meet the listed impairments in Appendix 1 of the regulations. If an impairment
meets the listing the claimant is deemed disabled. If it does not, step four asks whether the
claimant retains the residual functional capacity ("RFC") to do his past relevant work. Id. If the
claimant can no longer do his past relevant work, step five asks whether the claimant is able to
do any job available in significant numbers in the national economy. Id "The claimant bears
the burden of proving his case at steps one through four, ... 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."' Larkin v. Comm 'r ofSoc. Sec., No. 2:10-CV-291, 2011 WL 4499296, at *2
(D. Vt. Sept. 27, 2011) (quoting Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)).
The ALJ found at step one that Mr. New had not engaged in substantial gainful activity
since April 20, 2008, the alleged onset date of disability. (AR 22.) At step two, the ALJ found
that Mr. New had no medically determined mental health condition or physical condition to
support his Title II (DIB) claim. (AR 23.) The ALJ reasoned that Mr. New met the insured

4

status requirements for DIB through December 31, 2010, but that he had not established any
mental health condition or physical condition prior to that date. (See AR 20, 22-23.) Also at
step two, the ALJ found that, for Mr. New's Title XVI (SSI) claim, he did have medically
determinable impairments consisting of back pain status post spinal fractures, social anxiety, and
depression. (AR 22.) But the ALJ concluded that none of Mr. New's impairments, alone or in
combination, constituted a "severe" impairment. (AR 23-32.)
The ALJ also found that, under the Medical Vocational Grid Rules, 20 C.F.R. Part 404,
Subpart P, Appendix 2, Mr. New "is not disabled under all subcategories of a younger individual
with a medium work capacity, capable of perform[ing] all medium, light, and sedentary work."
(AR 28.) The ALJ further found that, even assuming severe mental impairments, Mr. New
"would be able to perform the entire unskilled occupational base." (See AR 31.)

Standard of Review
Disability is defined by the Social Security Act 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)(l)(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

5

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. ofNY 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 remedial
statute to be broadly construed and liberally applied." Dousewicz v. Harris, 646 F.2d 771, 773
(2d Cir. 1981 ).

Analysis
Mr. New contends that the ALJ erred in four ways: (1) by setting his own expertise
against that of physicians who provided opinions; (2) by failing to properly weigh treating source
statements; (3) by not following the factors in 20 C.F.R. § 404.1527(c)(2); and (4) by finding that
Mr. New had no severe impairments at step two of the analysis. (See Doc. 6.) The
Commissioner asserts that each of Mr. New's four points raises the same argument: that the
treating-source opinions of Dr. Michael Scovner (Mr. New's primary-care provider since
childhood) and Jacquelyn E. Bode, M.Ed. (a psychologist who treated him in 2014), establish
that Mr. New had severe physical and mental impairments, and that the ALJ erred in failing to
give more weight to those opinions. (Doc. 7 at 11.) The Commissioner maintains that
substantial evidence supports the ALJ' s decision, and that the correct legal standards were
applied.

6

I.

Severity
An impairment is "severe" if it "significantly limit[ s]" a claimant's "physical or mental

ability to do basic work activities." 20 C.F.R. §§ 404.1521(a), 416.921(a). "Basic work
activities" are the "abilities and aptitudes necessary to do most jobs," such as physical functions,
ability to see, hear, and speak, to understand and carry out instructions, and to use judgment and
respond appropriately to supervision and co-workers. See id. §§ 404.1521 (b), 416.921 (b).
"[T]he 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). Thus, "[a] claim may be denied at step two only ifthe 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." SSR 85-28, 1985 WL 56856, at *3 (1985).

A.

Back Pain

Mr. New maintains that the ALJ erred by failing to find that his back pain is a "severe"
impairment. The ALJ gave "little weight" to the treating source statement completed by
Mr. New's treating physician, Dr. Scovner, on May 2, 2014. (AR 27.) According to the ALJ,
the medical records do not support the limitations that Dr. Scovner described. The
Commissioner maintains that the ALJ provided good reasons for not according Dr. Scovner' s
opinion significant weight.

1.

Medical Opinions

As noted above, Dr. Scovner has been Mr. New's primary care physician since
childhood. In his May 2, 2014 statement, Dr. Scovner indicated that Mr. New's diagnoses
include low back pain and thoracic back pain, and that his prognosis is "poor." (AR 594.) He

7

opined that, because of Mr. New's symptoms, he would be "off task" for two hours in an eighthour work day. (AR 595.) He assessed limited abilities to lift and carry, and that in an eighthour work day, Mr. New could only sit for a cumulative total of four hours and could only stand
and walk for two hours. (Id) He opined that, in an eight-hour work day, Mr. New would need
to get up and walk for 10 minutes every half hour; that he would need to take 20-minute
unscheduled breaks every hour; and that he would need to lie down for about a half hour out of
every four hours. (AR 596.) Dr. Scovner also opined that Mr. New is limited to 15 minutes of
overhead reaching in an eight-hour work day, and five minutes of stooping or crouching.
(AR 596-97.) According to Dr. Scovner, Mr. New would likely be absent from work for more
than four days per month due to his impairments, treatment, or symptom flare-ups. (AR 598.)
Dr. Scovner indicated that the earliest date for the limitations he described was April 20, 2008.
(Id)
Under the treating-physician rule, "the opinion of a claimant's treating physician as to the
nature and severity of the impairment is given 'controlling weight' so long as it 'is wellsupported by medically-acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record." Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008) (alteration in original) (quoting 20 C.F.R. § 404.1527(c)(2)).
Even when a treating physician's opinion is not given controlling weight, it is still entitled to
some weight because treating physicians are "likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring
a unique perspective to the medical evidence .... " 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
If a treating physician's opinion is not given controlling weight, the weight to be given the
opinion depends on several factors: (1) the length of the treatment relationship and the frequency

8

of examination; (2) the nature and extent of the treatment relationship; (3) the relevant evidence
supporting the opinion; (4) the consistency of the opinion with the record as a whole; (5) whether
the opinion is of a specialist; and (6) other factors which tend to support or contradict the
opinion. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). The Commissioner is required to
give "good reasons" for the weight given to a treating source's opinion. 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2).
As to the ALJ' s determination at step two, the court concludes that the ALJ erred insofar
as he gave Dr. Scovner' s opinion insufficient weight to support a finding of "severe" back pain.
The ALJ reasoned that Dr. Scovner's own medical records do not support the extensive physical
limitations described in his May 2, 2014 opinion. (AR 27.) But, as described below, the medical
records document a physical impairment that is more than "minimal."
The record contains Dr. Scovner's office treatment records (and incorporated copies of
other treatment records) between May 16, 2006 and March 27, 2012 (AR 379-426), with
additional records between July 30, 2012 and December 13, 2013. (AR 457, 543-93.) Hospital
records indicate that Mr. New was admitted to the Rutland Regional Medical Center (RRMC) on
October 5, 2006 "for a possible seizure that was witnessed by his girlfriend." (AR 417.) The
hospital record states that Ms. Stewart reported that during the seizure, Mr. New had a "fully
arched back." (AR 421.) At the hospital, Mr. New complained of stomach pain and "numbness
all over his body." (Id.)
Dr. Scovner's treatment notes from October 2006 through April 2010 do not mention any
complaints of back pain. But at a December 22, 2010 appointment with Dr. Scovner, Mr. New
did complain of back pain "up and down [the] spine into [the] shoulder and into the front."
(AR 403.) Dr. Scovner's comments from that date indicate that Mr. New's "[b]ack [was] injured

9

after [a] seizure several years ago." (Id.) At an appointment on February 3, 2011, Mr. New
presented with back and shoulder pain. (AR 402.) Dr. Scovner's comments indicate that
Mr. New had fallen down stairs twice two weeks ago, and that he had been doing a lot of
shoveling. (AR 402.) Dr. Scovner diagnosed "[s]evere low back pain," prescribed Vicodin, and
ordered x-rays. (Id.)
Imaging on February 12, 2011 showed "loss of height ofL2 that may be due to a preexisting compression" and that the compression "may be chronic." (AR 401.) Mr. New
continued to complain of back pain at a March 8, 2011 appointment, and Dr. Scovner prescribed
physical therapy (PT). (AR 400.) Mr. New continued to complain of back pain at appointments
on April 8, 2011, May 20, 2011, and June 30, 2011. (AR 397-99.) A note from RRMC dated
July 11, 2011 indicates that Mr. New had been referred for PT, but that he was being discharged
because he did not return RRMC's communication to schedule an appointment. (AR 396.)
On January 10, 2012, Mr. New started physiatry at RRMC's outpatient physiatry clinic to
treat back pain. (AR 387.) At that initial appointment with Dr. Arabella Bull-Stewart, D.O.,
Mr. New reported that he had been experiencing back pain since 2006, and that the pain had
become progressively worse over time. (Id.) Dr. Bull-Stewart performed a physical
examination, and noted that Mr. New was able to sit on the exam table comfortably and to walk
without difficulty, but that he had "tenderness throughout his back and both the paraspinal
musculature of the lumbar, thoracic, and cervical region as well as along the spinous process of
the cervical, thoracic, and lumbar region." (AR 388-89.) Dr. Bull-Stewart's impression was
that Mr. New had neck and thoracic back pain, and "[ c]hronic low back pain with L2
compression fracture with right lower extremity radiculopathy." (AR 389.) She ordered an MRI

10

of the lumbar spine and x-rays of the thoracic and cervical spine. (Id.) She also planned to order
PT after reviewing the imaging results. (Id.)
The MRI showed"[ s]light loss of height at L2 consistent with previous trauma."
(AR 340.) The cervical x-ray was negative (AR 342), but the thoracic x-ray showed "moderate
compression ofT5" with "[m]ininal loss of height ... present at T4, T6 and T7'' (AR 341). At a
February 10, 2012 visit, Dr. Bull-Stewart reviewed the imaging results with Mr. New, noting that
the imaging revealed "no acute pathology." (AR 469.) But she found that Mr. New had
"[c]hronic low back and mid back pain" and enrolled him in PT. (AR 470.) At a March 13,
2012 visit, Dr. Bull-Stewart noted that Mr. New inquired whether he would qualify for disability,
and that she "counseled him about avoiding heavy manual labor," but "suggested that he could
certainly participate in non-physically taxing work." (AR 466.) She also noted that Mr. New
would be meeting with Dr. Matthew Zmurko regarding potential orthopedic intervention, and
that he was to start PT on March 19. (AR 466-67.) At a March 15, 2012 consultation with
Dr. Zmurko, the orthopedic clinic also recommended formal PT. (AR 533.)
Meanwhile, Dr. Scovner continued to note Mr. New's complaints of back pain at
appointments on January 31, 2012, February 16, 2012, and March 27, 2012. (AR 383-86.) At
the January appointment, Mr. New reported that the pain was becoming "far more intense" and
that it hurt to do most activities. (AR 386.) Upon physical exam, Dr. Scovner remarked "[p]ain
in lower back radiating down right." (Id.) He prescribed Tylenol 3. (Id.) At the February
appointment, Dr. Scovner commented that "[s]evere back pain persists with multiple areas
identified" and that Mr. New was having trouble sitting. (AR 385.) Dr. Scovner also
commented that Mr. New had "[s]evere back pain to palpation." (Id.) He prescribed Vicodin.

(Id.) At the March appointment, Dr. Scovner noted that Mr. New had "a week in terrible pain,"

11

and observed pain in the thoracic and lumbar spine upon physical examination. (AR 383.) He
again prescribed Vicodin. (Id)
Mr. New attended PT sessions at RRMC between March 19, 2012 and May 11, 2012. A
pain assessment on March 19, 2012 indicated that Mr. New's pain increased with bending and
walking, and also increased with sitting for more than five or ten minutes. (AR 519.) The
physical therapist assessed Mr. New's impairments or limitations as follows: "Pain limiting
function, Range of motion deficits, Strength deficits, Other: postural deficits." (AR 521.)
According to the initial PT clinical summary, Mr. New was expected to "benefit [from] PT to
address his limitations," and he "most likely will require [functional] restoration type of
progression." (AR 522.) Mr. New attended PT sessions in March and early April 2012.
(AR 501-514.) He met with Dr. Bull-Stewart on March 29, 2012, and reported that he had been
going to PT sessions "religiously," but that he felt "excruciating pain while he is doing the
therapy." (AR 508.) Dr. Bull-Stewart advised continuing with PT, but modifying exercises so
that Mr. New could tolerate them better. (AR 509.)
The PT records show relatively little activity in April, and on May 10, 2012, Mr. New
returned to PT "after a long break and difficulties adhering to PT scheduled appointment."
(AR 525.) At that appointment, he requested continuing the program independently at home,
citing inability to attend appointments due to financial constraints and the anticipated arrival of a
new baby. (AR 525-26.) He was discharged to do his PT work independently at home.
(AR 526.)
Mr. New returned to Dr. Bull-Stewart for appointments on June 5, June 21, and July 19,
2012. (AR 447-54.) Discussions at those appointments included the recent birth of his second
son, Mr. New's medications, symptoms, results from a June 19, 2012 MRI, and Mr. New's

12

assertion that he discontinued PT because of an extended period of severe back pain. At the
July 19 appointment, Dr. Bull-Stewart noted that Mr. New gave an "[i]nconsistent story
regarding opiate pain medication," and decided not to prescribe any more opiates to him.
(AR 448.) Dr. Bull-Stewart next saw Mr. New on September 5, 2012, and he continued to report
back pain. (AR 491.) Dr. Bull-Stewart ordered PT for a possible shoulder condition.
(See AR 492 ("Possible right supraspinatus impingement syndrome.").) She also dispensed a

transcutaneous electrical nerve stimulation (TENS) unit for Mr. New's back pain. (See id)
At an appointment with Dr. Scovner on September 14, 2012, Mr. New continued to
report severe back pain, with symptoms that worsened during the day, stiffness, and spasms.
(AR 591.) At an appointment on November 30, 2012, Dr. Scovner noted: "Hurts to get out of
bed. No longer in therapy. Doing exercises at home[;] situation is getting worse. Pain meds
allow him to bend over and take care of his family." (AR 589.) At a December 27, 2012
appointment, Dr. Scovner noted: "Hurts to bend over[;] hard to get up stairs. Gets better
mobility and sleeps better with meds. Allows him to also take care of family." (AR 587.) On
January 17, 2013, Dr. Scovner wrote: "Severe lower back pain persists. Just recently started
taking care of a new baby. Back has gotten more swollen." (AR 586.) On February 19, 2013,
Dr. Scovner wrote: "Hurts to bend over. Hard to do stairs. Meds allow him to do activities and
take care of his family." (AR 583.) At a March 13, 2013 appointment, Dr. Scovner noted:
"Went to physiatry yesterday. Back pain continues. Worse in the AM. Very stiff. [M]eds allow
him to do chores around the house and help take [care] of kids." (AR 577.) Dr. Scovner wrote
similar comments for appointments on April 1, 2013 (AR 575) and April 24, 2013 (AR 572).
Throughout the period from November 30, 2012 to April 24, 2013, Dr. Scovner
continued to prescribe Vicodin. (AR 589, 588, 585, 584, 577, 576, 571.) Dr. Scovner stopped

13

the Vicodin prescription after April 2013, and at a May 17, 2013 appointment, Mr. New reported
having trouble dealing with being off of that medication. (AR 570.) On July 29, 2013,
Dr. Scovner noted: "Hurts to bend over or crouch down. Able to help with some chores around
the house." (AR 562.)
Medical records indicate that by October 2013, Dr. Scovner had referred Mr. New to the
neurology clinic at the Dartmouth-Hitchcock Medical Center (DHMC). (AR 545.) After
conducting an examination, Dr. Tracie Caller at DHMC concluded that Mr. New had "[c]hronic
low back pain and myofascial pain syndrome likely secondary to compression fractures in the
thoracic spine." (AR 548.) She recommended following up with the spine clinic, and ongoing
exercise. (Id.) Dr. Rowland Hazard ofDHMC also met with Mr. New, and recommended
consideration of"intensive rehabilitation." (AR 551.) Dr. Scovner's records for the months in
2014 prior to his May 2, 2014 treating source statement continued to note Mr. New's diagnoses
as including back pain. (AR 609, 607.)
The medical records establish physical impairment that exceeds the "de minimis"
standard at step two. The ALJ recognized that Mr. New suffers from a medically determinable
impairment of "back pain status post spinal fractures." (AR 22.) The medical records described
above establish that the impairment has more than a minimal effect on Mr. New's physical
ability to perform basic work activities. That is particularly evident in Mr. New's longstanding
complaints of back pain, observations at physical examinations of a tender and swollen back,
accompanying diagnoses, imaging results, findings of physical limitations at PT appointments,
notations of limited mobility, and various strategies for treatment that included medication,
physiatry, PT, a TENS unit, and recommendations for intensive rehabilitation. Cf Wallace v.
Comm 'r ofSoc. Sec., No. 5:11-cv-26, 2012 WL 461809, at *3--4 (D. Vt. Jan. 10, 2012) (no error

14

in finding claimant's back pain was non-severe, where pain occurred only at rare intervals,
symptoms resolved spontaneously, and where evidence showed that it was caused by increased
physical activity, and claimant did not seek medical attention to treat it).
The ALJ also sought to support his analysis of Dr. Scovner's May 2, 2014 opinion by
contrasting it with Dr. Scovner's opinion on a Vermont temporary medical deferment form dated
March 13, 2013. (AR 27.) In his 2013 opinion, Dr. Scovner indicated that Mr. New could sit for
up to eight hours per day (AR 578), whereas in his 2014 opinion, Dr. Scovner opined that
Mr. New could only sit for a cumulative total of four hours per day (AR 595). In the 2013
opinion, Dr. Scovner wrote that Mr. New could stand for up to four hours per day (AR 578), but
in his 2014 opinion, Dr. Scovner opined that Mr. New could only stand and walk for a
cumulative total of two hours in an eight-hour work day (AR 595). Those differences do not
justify the ALJ' s determination to give Dr. Scovner' s May 2, 2014 opinion insufficient weight to
support a finding of "severe" back pain. Notably, Dr. Scovner's March 13, 2013 opinion states
that Mr. New suffers from "severe back pain," and that Mr. New is not able to perform work or
work activities. (AR 578.)
In addition, the ALJ asserted that Dr. Scovner's treatment notes "contain no assessment
of the claimant's functional abilities let alone mention of limitation with regard to standing,
walking, or sitting." (AR 27.) After reviewing the relevant record, however, the court finds that
Dr. Scovner's treatment notes support the conclusion that Mr. New's back pain had more than a
minimal impact on his physical ability to perform basic work activities. On December 22, 2010
and after, the treatment notes consistently refer to back pain, and multiple entries refer to
Mr. New's difficulty sitting, bending over, doing stairs, crouching, getting out of bed, and
performing "most activities." Notes from other providers include even more specific

15

assessments of functioning, especially Dr. Bull-Stewart's comment that Mr. New could
participate only in non-physically taxing work, and physical therapist's assessment that he had
"[p]ain limiting function, Range of motion deficits, Strength deficits, Other: postural deficits."
(AR 521.)
Similarly, the ALJ erred in giving "limited" weight to the opinions of state agency
consultants insofar as the ALJ concluded that those opinions did not support a finding of
"severe" back pain. (See AR 29.) Dr. Patricia Pisanelli opined on May 7, 2012 that there was
insufficient evidence to evaluate Mr. New's claim between April 20, 2008 and February 11,
2011. (AR 68.) But for the period between February 11, 2011 and May 7, 2012, she opined that
that Mr. New had exertional and postural limitations, including limitations in lifting and carrying
(occasionally 50 pounds and frequently 25 pounds), and in sitting, standing, and walking
(six hours in an eight-hour work day). (AR 70.) Dr. Geoffrey Knisely came to the same
conclusions on September 6, 2012. (AR 96--97; 99-100.)
Those opinions describe more than a "minimal" effect on Mr. New's physical abilities.
The ALJ decided to give the opinions of Dr. Pisanelli and Dr. Knisely "limited weight" because
"the additional objective medical evidence is essentially normal." (AR 29.) As described above,
however, the medical records establish physical impairment that exceeds the "de minimis"
standard at step two.

2.

Credibility

Because Mr. New's physical symptom is pain, the ALJ was required to make a finding
about the credibility of Mr. New's statements about his symptoms and its functional effects.
SSR 96-7P, 1996 WL 374186, at *1(July2, 1996); see also 20 C.F.R. §§ 404.1529, 416.929.
The ALJ must first establish that there is a medically determinable impairment that could

16

reasonably be expected to produce the claimant's symptoms. 20 C.F.R. §§ 404.1529(b),
416.929(b). Here, medical imaging showed at least one compression fracture in the spine, and
medical professionals repeatedly concluded that the spine injuries were related to the pain that
Mr. New was reporting. The ALJ noted that the imaging showed no evidence of "acute"
pathology (AR 28), but Mr. New's complaint is of chronic pain.
Since there is a medically determinable impairment that could reasonably be expected to
produce Mr. New's symptoms, the ALJ was required to evaluate the intensity and persistence of
the symptoms to determine how they limit the claimant's functioning. 20 C.F.R. §§ 404.1529(c),
416.929(c). Generally, if clinical evidence does not fully support the claimant's testimony
concerning the intensity, persistence, or functional limitations of the impairment, then
the ALJ must consider additional factors, including: (1) the claimant's daily activities; (2) the
location, duration, frequency, and intensity of the claimant's symptoms; (3) precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken
by the claimant to relieve the symptoms; (5) other treatment received; (6) any other measures
taken to relieve the symptoms; and (7) other factors. Id §§ 404.1529(c)(3)(i)-(vii),
416.929(c)(3)(i)-(vii). "When evaluating the credibility of an individual's statements, the [ALJ]
must consider the entire case record and give specific reasons for the weight given to the
individual's statements." SSR 96-7P, 1996 WL 374186, at *4 (July 2, 1996). "Credibility
findings of an ALJ are entitled to great deference and therefore can be reversed only if they are
'patently unreasonable."' Pietrunti v. Dir., Office of Workers' Comp. Programs, 119 F.3d 1035,
1042 (2d Cir. 1997) (quoting Lennon v. Waterfront Transp., 20 F.3d 658, 661 (5th Cir. 1994)).
The ALJ found Mr. New's symptom complaints "not credible to the extent alleged,"
reasoning that "the objective medical evidence of record does not fully support those

17

allegations." (AR 24-25.) That reasoning is somewhat circular: when the objective medical
evidence does not fully support the claimant's testimony concerning the intensity, persistence, or
functional limitations of the impairment, then the ALJ must consider the additional factors listed
above. The Commissioner contends, however, that the ALJ properly relied on Mr. New's
activities of daily living. (Doc. 7 at 14.) Mr. New maintains that his activities, other than child
care, do not occur with the frequency necessary to show the ability to work a forty-hour week.
(Doc. 8 at 3.)
The ALJ did mention Mr. New's daily activities in his decision, asserting in particular
that he is able to care for his children and to do housework, personal care, meal preparation,
shopping, and driving. (AR 29, 31.) The Commissioner also notes several other portions of the
record regarding Mr. New's activities. (Doc. 7 at 14.)4 But '"a claimant need not be an invalid
to be found disabled' under the Social Security Act." Balsamo v. Chafer, 142 F.3d 75, 81
(2d Cir. 1998) (quoting Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988)). The inquiry is
whether Mr. New engaged in activities for "sustained periods comparable to those required to
hold a sedentary job." Id. (quoting Carroll v. Sec '.Y of Health & Human Servs., 705 F.2d 638,
643 (2d Cir. 1983)). The activities described in the record are not so comparable. Most
references in the record regarding Mr. New's activities include the caveat that the activity must
be brief, accompanied by frequent breaks, or performed with Ms. Stewart's assistance. 5
4

Mr. New reported to Dr. Scovner in February 2011 that he had been doing "a lot of
shoveling." (AR 402.) He reported to Dr. Hazard in October 2013 that he had been doing some
"light carpentry work." (AR 551.) At his March 15, 2012 visit to the Rutland Vermont
Orthopedic Clinic, he stated that he enjoyed target shooting. (AR 331.) In his April 26, 2012
function report, he indicates that he typically goes for a "short walk" each day. (AR 252.)
5

(See AR 50 (Ms. Stewart's testimony that "if he's doing a project, he would have to
stop to either walk around, get up, shift, you know, move his body around every 15 to 20 minutes
or so."); AR 52 (can lift a gallon of milk, but could not move it repetitively); AR 268
(Ms. Stewart "helps with ALL chores"); AR 269 (meal preparation longer than five to ten

18

The ALJ also remarked that the limitations assessed by Dr. Scovner are "not supported
by the claimant's report of being able to function with medication." (AR 28.) Indeed,
Dr. Scovner noted on several occasions that pain medications allowed Mr. New to do activities,
chores, and take care of the children. As discussed above, however, Mr. New's daily activities
are not sufficient to support a "non-severe" determination.
Finally, the ALJ's opinion is interspersed with a variety of suggestions seeming to
impugn Mr. New's credibility. Perhaps most importantly, the ALJ noted (as did Dr. BullStewart) Mr. New's inconsistent statements about medication use, suggesting that he may have
alleged back pain to obtain Vicodin. (See AR 27.) Dr. Bull-Stewart noted at a July 19, 2012
appointment that, despite being prescribed Vicodin, his urine toxicology screen was positive for
cannabis and negative for opiates, and he was unable to explain those results, which caused her
to suspect "possible drug diversion." (AR 447--48.) 6 This court has held that drug-seeking
behavior is relevant to the credibility assessment. Rye v. Colvin, No. 2:14-cv-170, 2016 WL
632242, at *12 (D. Vt. Feb. 17, 2016) (citing Anderson v. Shala/a, 51 F.3d 777, 780 (8th Cir.
1995)). On the other hand, drug diversion is not inconsistent with the presence of severe back
pain. Indeed, Dr. Bull-Stewart did not conclude that Mr. New's reports of pain were fabricated.
She stopped prescribing opiates, but increased his dosage of Lyrica, and directed him to take
Excedrin or Tylenol for supplemental pain management, and continued to treat him for back
pain. (AR 448.) This issue impacts Mr. New's credibility, but not enough to conclude that his
back pain is non-severe.

minutes "requires breaks"); id (cleaning "in small amounts"; folding laundry "with breaks"); id
(any repetitive task requires breaks); AR 270 (shopping "with help from" Ms. Stewart).)
6

Dr. Scovner continued prescribing Vicodin between November 2012 and April 2013. It
is not clear from the record whether Dr. Scovner stopped prescribing opiates based on a similar
suspicion of drug diversion.
19

For all of the above reasons, the court concludes that substantial evidence does not
support the ALJ's determination at step two that Mr. New's back pain is not "severe."
B.

Mental Health

Mr. New maintains that the ALJ erred by failing to find that his depression and social
anxiety are "severe" impairments. The ALJ gave "no weight" to the opinions of Jacquelyn E.
Bode, a psychologist who treated him in 2014. (AR 30.) The ALJ also applied the
"paragraph B" criteria (the "special technique") to conclude that Mr. New's mental impairments
are non-severe. (AR 31-32.) The Commissioner maintains that the ALJ reasonably found that
Mr. New did not have a severe mental impairment.
1.

Opinion Evidence

In a treating source statement dated May 12, 2014, Ms. Bode states that she began
treating Mr. New on February 3, 2014, seeing him approximately one hour per week for
psychotherapy. (AR 612.) Ms. Bode's statement indicates that she is a "Lic[ensed]
Psychologist, Masters," and that she earned an M.Ed. degree. (AR 617.) According to her
evaluation, Mr. New has post-traumatic stress disorder (PTSD), social phobia, and depressive
disorder (not otherwise specified). (AR 612.) Describing her clinical findings, Ms. Bode noted:
Rates 10 (0-10) on numerous fears related to social phobia. Extremely anxious
presentation. No eye contact. [History] of severe anxiety dating to childhood.
[Difficulty with] concentration; insomnia; public avoidance; depressed;
isolated; ... fatigue, nausea, headaches; hopelessness; flashbacks; irritability;
[history] of very low occupational/social/academic functioning in spite of
adequate intelligence.
(Id) She describes Mr. New's prognosis as "guarded." (Id) She further identified a variety of

"signs and findings" including anhedonia or pervasive loss of interest in almost all activities;
decreased energy; feelings of guilt or worthlessness; generalized persistent anxiety; mood
disturbance; difficulty thinking or concentrating; persistent disturbances of mood or affect;
20

apprehensive expectation; emotional withdrawal or isolation; persistent irrational fear of a
specific object, activity, or situation resulting in avoidance; motor tension; emotional !ability;
deeply ingrained, maladaptive patterns of behavior; and sleep disturbance. (AR 613.)
Ms. Bode further indicated that pain and fatigue are contributing factors to Mr. New's
ability to work. (Id) She states that psychiatric conditions exacerbate Mr. New' s experience of
pain, explaining that "pain increases depression and vice versa." (Id) According to Ms. Bode's
report, numerous aspects of workplace stress would exacerbate Mr. New's symptoms and would
cause him to perform below a satisfactory level. (AR 614.) She also indicates "serious" (or
greater) limitations in ten different mental abilities needed to work. (AR 614-15.) Regarding
functional limitations resulting from Mr. New's mental impairments, Ms. Bode indicated
"marked" limitations in activities of daily living and maintaining concentration, persistence, or
pace; and "extreme" limitations in social functioning. (AR 615.) Ms. Bode further indicated that
Mr. New has "[a]n anxiety related disorder and complete inability to function independently
outside the area of one's home." (AR 616.) She estimated that Mr. New's mental impairments
would cause him to be absent from full-time employment more than four days per month. (Id)
The ALJ gave "no weight" to Ms. Bode's opinion, reasoning that she first saw Mr. New
on February 3, 2014; that there are no treatment notes to support her opinions; and that her
training is in education not psychology. (AR 30.)7 The court begins with the ALJ's third reason,
which appears to be a suggestion that Ms. Bode is not an acceptable medical source. An
acceptable medical source is necessary to establish whether a claimant has a medically
determinable impairment. 20 C.F.R. §§ 404.1513(a), 416.913(a). The regulations define

7

The ALJ also took issue with Ms. Bode's opinion that Mr. New has PTSD, but correctly
noted that Mr. New does not allege PTSD in his application. (Id)
21

"acceptable medical sources" to include "[l]icensed or certified psychologists." 20 C.F.R.
§§ 404.1513(a)(2), 416.913(a)(2).
In Vermont, an individual is considered an "acceptable medical source" if all or part of
his or her title includes "Licensed Psychologist, Masters." See Huestis v. Comm 'r ofSoc. Sec.,
No. 2:13-cv-201, 2014 WL 4209927, at *6 n.6 (D. Vt. Aug. 25, 2014) (citing POMS DI
22505.004(A)(2), available at https://secure.ssa.gov/poms.nsf/lnx/0422505004). Ms. Bode's title
includes exactly that designation, and her licensure status is verified with Vermont's Office of
Professional Regulation. See State of Vermont License Lookup,
https://secure.vtprofessionals.org/Lookup/LicenseLookup.aspx (last visited Jan. U, 2017). The
ALJ's observation about Ms. Bode's academic degree is not a basis to discount her opinion.
The ALJ's observation that Ms. Bode first saw Mr. New on February 3, 2014 is
insufficient to conclude that she is not a "treating source" under 20 C.F.R. §§ 404.1527(c) and
416.927(c). It is true that the opinion of a source who has examined a patient "only once or
twice" may not be entitled to the extra weight of a treating source. Mongeur v. Heckler,
722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (per curiam). Here, Ms. Bode states that she has seen
Mr. New for psychotherapy on an approximately weekly basis between February 3, 2014 and
May 12, 2014. That is sufficient to qualify her as a treating source.
Finally, the ALJ asserts that there are no treatment notes to support Ms. Bode's opinions.
That is also not a reason to give the opinions no weight. See Soto-Cedeno v. Astrue,
380 F. App'x 1 (1st Cir. 2010) (absence of treatment notes did not justify rejection of doctor's
opinion where doctor's report explained the basis for his opinion). Here, Ms. Bode's opinions
are based on psychotherapy and clinical findings. Moreover, the Social Security
Administration's own policy recognizes "the sensitivity and extra legal protections that concern

22

psychotherapy notes," and states that the administration "does not need the notes." Fact Sheet
for Mental Health Care Professionals,

https://www.ssa.gov/disability/professionals/mentalhealthproffacts.htm.
The lack of treatment notes may have been a reason to order a consultative examination.
See Karl-Lebbrenz v. Colvin, No. 12-CV-01099A, 2014 WL 3845414, at *10 (W.D.N.Y. Aug. 5,

2014). That was done in this case: Marc D. Carpenter, M.A. is a Licensed PsychologistMaster, and he examined Mr. New on May 22, 2012. (AR 436.) Mr. Carpenter noted that
Mr. New presented as anxious during the session, but that he denied depressive symptoms, and
that the symptoms he reported are more consistent with agoraphobia than with social anxiety.
(AR 439.) Mr. Carpenter's impression is that Mr. New has "Panic Disorder With Agoraphobia."
(Id) It is not clear what weight the ALJ gave to Mr. Carpenter's opinion. Although

Mr. Carpenter arrived at a different diagnosis than Ms. Bode, his opinion does not undermine the
functional assessment offered by Ms. Bode. 8 It was error to give Ms. Bode' s opinions no weight.

2.

Special Technique

At steps two and three, to evaluate the severity of mental impairments, the regulations
require application of the "special technique" set forth in 20 C.F.R. §§ 404.1520a and 416.920a.
Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). Under this technique, the reviewing

authority first determines whether the claimant has a "medically determinable mental
impairment." 20 C.F.R. §§ 404.1520a(b)(l), 416.920a(b)(l). If so, the reviewing authority must
then "rate the degree of functional limitation resulting from the impairment(s) in accordance with
8

In addition to Mr. Carpenter's opinion, the record also contains the report oflicensed
psychologist Steven B. Mann, Ph.D. Dr. Bull-Stewart had referred Mr. New to Dr. Mann. After
interviewing Mr. New and performing psychological testing, Dr. Mann produced a report dated
April 19, 2012. Dr. Mann diagnosed "social phobia, rule out conversion disorder." (AR 434.)
Dr. Mann did not diagnose depressive disorder or PTSD, but his opinion also does not
undermine the functional assessment offered by Ms. Bode.
23

paragraph (c)," id. §§ 404.1520a(b)(2), 416.920a(b)(2), which specifies four broad functional
areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace;
and (4) episodes of decompensation. Id. §§ 404.1520a(c), 416.920a(c). Under the regulations,
an impairment is generally not severe if the degree of limitation in the first three functional areas
is "none" or "mild," and ifthere are no episodes of decompensation. Id. §§ 404.1520a(d)(l),
416.920a(d)(l).
The ALJ found Mr. New to have "mild" limitation in the first three functional areas, and
no episodes of decompensation. (AR 31.) In light of the ALJ's failure to give any weight to
Ms. Bode's opinions, those findings are not supported. See Krach v. Comm 'r ofSoc. Sec.,
No. 3:13-CV-1089 (GTS/CFH), 2014 WL 5290368, at *6 (N.D.N.Y. Oct. 15, 2014) (ALJ
applied the special technique to find depression and anxiety to be non-severe, but erroneously
failed to assess opinion evidence). The ALJ' s conclusions are also inconsistent with the findings
of agency consultants Edward Hurley, Ph.D., and Thomas Reilly, Ph.D., both of whom
concluded that Mr. New has "moderate" (not mild) difficulties maintaining social functioning.
(AR 69, 114.)

II.

Harmless Error Analysis
As discussed in detail above, the ALJ erred by finding that Mr. New's symptoms are not

"severe" at step two. The Commissioner asserts that, even if the ALJ erred in his step two
determinations, the error was harmless because the ALJ articulated alternative reasons for
arriving at his "not disabled" determination. (See Doc. 7 at 12, 18.)

A.

Physical Abilities and the Grids

The ALJ found that "[p]ursuant to the Medical Vocational Grid Rules, the claimant is not
disabled under all subcategories of a younger individual with a medium work capacity, capable

24

of perform[ing] all medium, light, and sedentary work." (AR 28.) The Commissioner maintains
that, even if Mr. New does have a "severe" back impairment, he could still do medium, light, or
sedentary work. (Doc. 7 at 15.)
That reasoning is flawed because the Medical-Vocational Guidelines ("the grids") "take
into account only exertional impairments." Wallace v. Comm 'r ofSoc. Sec., No. 5:11-cv-26,
2012 WL 461809, at *10 (D. Vt. Jan. 10, 2012). Where a claimant has nonexertional
impairments, use of the grids is appropriate "only if those impairments 'do not significantly
diminish the claimant's residual capacity to perform the activities listed in them."' Id. (quoting
Evans v. Chafer, 84 F.3d 1054, 1056 (8th Cir. 1996)). Here, the record-including
Dr. Scovner's May 2, 2014 statement and his treatment notes-indicate that Mr. New's back
pain results in nonexertional limitations, such as difficulty reaching overhead, climbing stairs,
stooping, and crouching. Moreover, Ms. Bode's opinion suggests that Mr. New also has
additional nonexertional limitations stemming from his social phobia and depression. Aside
from finding Mr. New's impairments to be non-severe (a finding that is not supported by
substantial evidence), the ALJ failed to make specific findings as to whether Mr. New's
nonexertional limitations significantly diminish his residual capacity.
B.

Mental Health and the Unskilled Occupational Base

The ALJ found that "assuming the mental residual functional capacity opined by
Dr. Hurley and Dr. Reilly, the claimant would be able to perform the entire unskilled
occupational base." (AR 31.) Dr. Hurley and Dr. Reilly each supplied assessments of
Mr. New's mental residual functional capacity. (AR 71-73; AR 116-18.) The Commissioner
maintains that those assessments do not preclude unskilled work, the basic demands of which
include "the abilities (on a sustained basis) to understand, carry out, and remember simple

25

instructions; to respond appropriately to supervision, coworkers, and usual work situations; and
to deal with changes in a routine work setting." SSR 85-15, 1985 WL 56857, at *4 (Jan. 1,
1985). Mr. New does not disagree on that point, but maintains that the opinions of Dr. Hurley
and Dr. Reilly should be given little weight. (Doc. 8 at 6.)
Here, substantial evidence does not support the ALJ's conclusion that Mr. New is able to
perform the entire unskilled occupational base. This is because it was error to give Ms. Bode's
opinion no weight, and because Ms. Bode's opinion assesses Mr. New with serious limitations in
abilities necessary for unskilled work, such as accepting instructions from supervisors,
responding appropriately to coworkers, and responding appropriately to changes in a routine
work setting. (See AR 615.)

III.

Title II (DIB) Claim and Disability Onset Date
The ALJ denied Mr. New's Title II (DIB) claim in its entirety on the grounds that

Mr. New had not established any mental health condition or physical condition prior to
December 31, 2010, his date last insured. The ALJ reasoned that none of Mr. New' s medical
records dated between January 31, 2008 and December 31, 2010 mentioned anxiety or
depression, and that the first mention of back pain was on December 22, 2010, but at a
February 3, 2011 appointment that pain was attributed to falling down the stairs and doing a lot
of shoveling. (AR 23.)
To be eligible for disability under Title II of the Social Security Act, "a claimant must
have been insured within the meaning of 42 U.S.C. § 423(c) at the onset date of his or her
disability." Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see also Carpenter v. Astrue,
No. 5:10-cv-249, 2011 WL 3951623, at *10 (D. Vt. Sept. 7, 2011) (to obtain disability insurance
benefits, "a claimant must demonstrate that his disability commenced during a period in which

26

he was entitled to [i]nsured status .... In other words, the onset date of disability must precede
the date last insured" (citing 42 U.S.C. § 423(c); 20 C.F.R. §§ 404.101, 404.130, 404.131; and
SSR 83-20, 1983 WL 31249, at *1 (Nov. 30, 1983))). Mr. New does not challenge the ALJ's
conclusion that his date last insured was December 31, 2010. But he does argue that the ALJ
erred in denying Title II benefits.
Here, because the ALJ determined that Mr. New was not disabled at any time between
April 20, 2008 and June 25, 2014, it was unnecessary for the ALJ to follow the procedures
prescribed in SSR 83-20 for determining the onset date of any disability. See Steen v. Comm 'r of

Soc. Sec., No. 2:10-CV-210, 2011 WL 2412594, at *7 (D. Vt. June 10, 2011) ("[I]n cases where
the ALJ does not find the claimant to have been disabled at any point in time, the procedures
prescribed in SSR 83-20 are inapplicable."). If, on remand, the ALJ finds that Mr. New is
disabled, then the ALJ should follow the procedures in SSR 83-20 to determine the onset date.

Conclusion
Mr. New's Motion to Reverse (Doc. 6) is GRANTED. The Commissioner's Motion to
Affirm (Doc. 7) is DENIED. The case is REMANDED for further proceedings and a new
decision.
Dated at Rutland, in the District of Vermont, this

~ay of February, 2017.
Geoffrey W. Crawford, Judge
United States District Court

27