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Shepard v. Astrue

United States District Court, Second Circuit

June 26, 2013

MICHAEL J. ASTRUE, Commissioner Social Security Administration Defendant.


LAWRENCE E. KAHN, District Judge.


Plaintiff Pamela J. Shepard ("Plaintiff") brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), for review of the final decision of the Commissioner of Social Security ("Commissioner") that Plaintiff is ineligible for Disability Insurance Benefits ("DIB") as well as Supplemental Security Income Benefits ("SSI").[1] Plaintiff argues that the decision of Administrative Law Judge ("ALJ") Thomas P. Tielens was against the weight of the substantial evidence and violates the Social Security Act. The Commissioner cross-moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and asserts that the ALJ's decision is supported by substantial evidence and was made in accordance with applicable law.[2]

For the following reasons, this matter is affirmed in part and remanded in part for proper consideration of Plaintiff's Residual Functional Capacity ("RFC") and reassessment of Plaintiff's credibility.


A. Procedural History

On November 29, 2006, Plaintiff protectively filed a Title II application for DIB and concurrently filed a Title XVI application for SSI. Dkt. No. 8-2 at 19.[3] Her applications were denied on June 8, 2007. Dkt. No. 8-4 at 2. Plaintiff requested a hearing, which was held on September 3, 2009, before the ALJ. Dkt. No. 18 ("Defendant's Brief") at 2. In his decision dated October 14, 2009, the ALJ found that Plaintiff was not disabled under §§ 216(i), 216(d), and 1614(a)(3)(A) of the Social Security Act. Dkt. No. 8-2 at 28. Plaintiff's timely request for review of the ALJ's decision was denied by the Social Security Appeals Council ("Appeals Council") on January 7, 2011, at which time the ALJ's decision became the final determination of the Commissioner. Dkt. No. 8-2 at 2. On February 23, 2011, Plaintiff filed the present action. Dkt. No. 1 ("Complaint") at 4.

B. Substantive Background

Plaintiff was born on April 30, 1961. Dkt. No. 12 ("Plaintiff's Brief") at 8. After graduating from high school, she received two associate's degrees and a welder's certification. Id . Plaintiff has worked as a packer on an assembly line and a machine operator. Dkt. No. 8-6 at 19. She testified that her job as a packer was "fast paced" and required her to stand in order to perform her duties. Dkt. No. 8-2 at 47-48. She further testified that her duties as a machine operator required her to lift 50 pounds or more and be on her feet, and that knee and back problems caused her to leave that job in January 2003. Id. at 48-49.

Plaintiff alleges that she has been disabled since September 1, 2006, due to a number of impairments including knee and back pain, drug abuse and alcoholism, morbid obesity, and various psychological disorders. Def.'s Br. at 5. A 2003 motor vehicle accident caused Plaintiff substantial injuries for which she underwent several right-heel surgeries in 2003 and 2005. Dkt. No. 8-2 at 66; Pl.'s Br. at 9-10. Plaintiff also had prior surgeries on her hand, knee, and both feet. Pl.'s Br. at 10. Furthermore, Plaintiff has been hospitalized for acute psychosis and has a history of asthma, anxiety, and panic attacks. Id. at 4. Plaintiff testified that she received mental-health counseling for a brief period when she was a teenager and that, beginning in 2003, she has received further counseling once a week or more frequently if needed. Dkt. No. 8-2 at 53. Plaintiff allegedly has a history of drug and alcohol abuse, and Plaintiff testified that she had used cocaine for "32 or 34 years, " but had been "clean and sober" since May 13, 2005. Id. at 45, 50.

Moreover, Plaintiff testified about her Obsessive-Compulsive Disorder. Id. at 58-59. She engages in "checking" behaviors and other repetitive activities such as hand washing, checking to make sure that the stove is off, and checking if the refrigerator door is closed, over and over again. Id . Plaintiff reported having hallucinations during which she hears "unexplained" sounds and sees "the bad man." Id. at 59.

Plaintiff attributes her ability to successfully obtain a two-year degree in chemical dependency counseling with a 3.79 grade-point average to her anxiety medication and the breaks between classes, during which she did not have to be on her feet or in a chair that hurt her back. Id. at 63. In order to obtain her degree, Plaintiff worked approximately 24 hours per week, interned, performed research, and wrote papers. Id. at 64-65.

Plaintiff briefly worked at Burger King before quitting due to alleged back and knee pain. Dkt. No. 8-6 at 66. She then worked for Kelly Services Marietta Corporation as a packer, where she "couldn't tolerate standing" and was consequently terminated in July 2003. Id . She has not worked since. Id.

C. The ALJ's Decision

Plaintiff's hearing was held in September 2009. Def.'s Br. at 2. The ALJ made the following findings and conclusions, as set forth in his October 14, 2009 decision.

First, the ALJ held that Plaintiff met the insured-status requirement of the Social Security Act through September 30, 2008. Dkt. No. 8-2 at 21. In addition, he held that Plaintiff has not engaged in substantial gainful activity since September 1, 2006, the alleged onset date of her disability. Id . Moreover, the ALJ found that Plaintiff had the following "severe" impairments: mild asthma, knee pain, foot surgeries, morbid obesity and related back pain, as well as depressive affective disorder, obsessive-compulsive disorder, personality disorder not otherwise specified, and a history of drug addiction, alcoholism, or other substance-abuse disorders. Id.

Furthermore, the ALJ held that Plaintiff did not have an impairment or a combination of impairments that met or medically equaled a listed impairment. Id. at 23. The ALJ also determined that Plaintiff had the RFC to perform light (or sedentary) work, standing not more than approximately two hours per workday, with the mental capacity to meet the demands of simple, repetitive, entry-level work, and the ability to understand and follow simple directions, perform simple tasks, maintain a routine and schedule, to at least occasionally relate to and interact appropriately with others, and to deal with work related stress. Id. at 24. The ALJ further held that Plaintiff may have been unable to perform past relevant work. Id. at 27. He determined that, as of the alleged onset date, Plaintiff was 45 years old and therefore a "younger person" as defined in 20 CFR § 416.963(c). Id. at 27. Next, the ALJ determined that Plaintiff had at least a high school diploma and could communicate in English. Id . The ALJ then held that, whether or not she had transferable job skills, Plaintiff was not disabled based on the Medical-Vocational Rules. Id . Finally, the ALJ held that considering her age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. Id. at 28.

D. The Parties' Briefs

Both parties have filed Briefs. In her Brief, Plaintiff argues that: (1) the Commissioner failed to properly evaluate the evidence; (2) the determined RFC was in error and not based on substantial evidence in the record; (3) the Commissioner failed to meet his burden because no vocational evidence or testimony were presented; and (4) the credibility determination was in error. See generally Pl.'s Br. Defendant contends that: (1) the ALJ's RFC finding is supported by substantial evidence; (2) the ALJ appropriately assessed Plaintiff's credibility; (3) the ALJ correctly determined ...

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