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Rivera v. Colvin

United States District Court, D. Massachusetts

February 26, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration Defendant


KATHERINE A. ROBERTSON United States Magistrate Judge

I. Introduction

This is an action for judicial review of a final decision by the acting Commissioner of the Social Security Administration ("Commissioner") regarding Plaintiff's entitlement to Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") benefits. See 42 U.S.C. §§ 405(g) and 1383(c)(3). Plaintiff Melvin Marrero Rivera ("Plaintiff") faults the Commissioner's decision denying him such benefits - memorialized in a June 7, 2011 decision by an administrative law judge ("ALJ") - because: (1) the Commissioner accorded little weight to Plaintiff's treating physician's opinion regarding Plaintiff's physical limitations; (2) the Commissioner failed to appropriately consider Plaintiff's non-exertional impairments; and (3) the Commissioner failed to give controlling weight to Plaintiff's mental health treatment providers' opinions. Plaintiff has moved to reverse the Commissioner's decision or, in the alternative, to remand the decision (Dkt. No. 18), and the Commissioner, in turn, has moved to affirm (Dkt. No. 22).

The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the following reasons, the court will remand the case to the Commissioner for amplification of the reason for the denial of benefits for the period from June 3, 2011 until Plaintiff's surgery on October 16, 2012. The Commissioner's decision as to the subsequent period is affirmed.

II. Factual Background

Plaintiff was 36 years old at the time of the ALJ hearing on June 20, 2013 (Administrative Record ("A.R.") at 16, 39). He is a high school graduate, who previously was employed as a maintenance worker, security guard, and dishwasher (id. at 39, 40, 245). He worked as a supervisor for a produce distributor at his last job in 2008 (id. at 39-40). In his application for SSDI and SSI, Plaintiff alleged that he was disabled due to screws in his left leg and arthritis in his ankle (id. at 244).

III. Procedural Background

Previously, in 2009, Plaintiff had applied for SSI and SSDI (id. at 115). After a hearing on June 7, 2011, the ALJ in the prior case ("first ALJ") found Plaintiff to be disabled for a closed period -- from October 1, 2008 to June 2, 2011 -- due to the following severe impairments: status post left tibia/fibula fracture and implantation of hardware; obesity; and obstructive sleep apnea ("OSA") (id. at 23, 115-121).

Plaintiff made subsequent applications for SSDI and SSI on October 18, 2011, alleging an onset of disability on June 3, 2011 (id. at 16, 213, 220). The applications were denied initially and upon reconsideration (id. at 16, 71, 82, 95, 106). Following a hearing on June 20, 2013, the ALJ issued a decision on August 14, 2013, finding that Plaintiff was not disabled and denying Plaintiff's claims (id. at 16-26). The Appeals Counsel denied review (id. at 1-8). Thus, the ALJ's decision became the final decision of the Commissioner. This appeal followed.

IV. Discussion

A. Standard of Review

The District Court may enter a judgment affirming, modifying, or reversing the final decision of the Commissioner, with or without remanding for a rehearing. See 42 U.S.C. § 405(g). Judicial review "is limited to determining whether the ALJ used the proper legal standards and found facts upon the proper quantum of evidence." Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The court reviews questions of law de novo, but must defer to the ALJ's findings of fact if they are supported by substantial evidence. See id. (citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)). Substantial evidence exists "'if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the] conclusion.'" Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.1991) (quoting Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). In applying the substantial evidence standard, the court must be mindful that it is the province of the ALJ, and not the courts, to determine issues of credibility, resolve conflicts in the evidence, and draw conclusions from such evidence. See Id. So long as the substantial evidence standard is met, the ALJ's factual findings are conclusive even if the record "arguably could support a different conclusion." Id. at 770. That said, the Commissioner may not ignore evidence, misapply the law, or judge matters entrusted to experts. See Nguyen, 172 F.3d at 35.

B. Standard for Entitlement to Social Security Disability Insurance and Supplemental Security Income

In order to qualify for SSDI, a claimant must demonstrate that he was disabled within the meaning of the Social Security Act (the "Act") prior to the expiration of his insured status for disability insurance benefits. See 42 U.S.C. § 423(a)(1)(A) and (D). SSI benefits, on the other hand, require a showing of both disability and financial need. See 42 U.S.C. § 1381a. "Plaintiff's need, for purposes of SSI, and insured status, for purposes of SSDI, are not challenged. The only question is whether the ALJ had substantial evidence with which to conclude that Plaintiff did not suffer from a disability." Bitsacos v. Barnhart, 353 F.Supp.2d 161, 165-66 (D. Mass. 2005).

The Act defines disability, in part, as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3)(A) (similar). An individual is considered disabled under the Act

only if his physical or mental impairment or 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B). See generally Bowen v. Yuckert, 482 U.S. 137, 146-49 (1987).

The Commissioner evaluates a claimant's impairment under a five-step sequential evaluation process set forth in regulations promulgated under the Act. See 20 C.F.R. §§ 404.1520(a) and 416.920(a). The hearing officer must determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant suffers from a severe impairment; (3) whether the impairment meets or equals a listed impairment contained in Appendix 1 to the regulations; (4) whether the impairment prevents the claimant from performing previous relevant work; and (5) whether the impairment prevents the claimant from doing any work considering the claimant's age, education, and work experience. See id; see also Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982) (describing the five-step process). If the hearing officer determines at any step of the evaluation that the claimant is or is not disabled, the analysis does not continue to the next step. See 20 C.F.R. §§ 404.1520 and 416.920.

Before proceeding to steps four and five, the Commissioner must make an assessment of the claimant's "residual functional capacity" ("RFC"), which the Commissioner uses at step four to determine whether the claimant can do past relevant work and at step five to determine if the claimant can do other work. See id. "The RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities." Social Security Ruling ("SSR") 96-8p, 1996 WL 374187, at *2 (July 2, 1996). "Work-related mental activities generally . . . include the abilities to: understand, carry out and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision and co-workers and work situations; and deal with changes in a routine work setting." Id. at * 6. Put another way, "[a]n individual's RFC is defined as 'the most you can still do despite your limitations.'" Dias v. Colvin, 52 F.Supp.3d 270, 278 (D. Mass. 2014) (quoting 20 C.F.R. § 416.945(a)(1)).

The claimant has the burden of proof through step four of the analysis. At step five, the Commissioner has the burden of showing the existence of jobs in the national economy that the claimant can perform notwithstanding impairment(s). See Goodermote, 690 F.2d at 7.

C. Medical Records

1. Physical condition

In support of the disabling conditions listed in Plaintiff's application for SSDI and SSI benefits, he presented the ALJ with extensive medical evidence spanning the period from 2010 through 2013, which included a portion of the closed period of disability from October 1, 2008 to June 2, 2011 (A.R. at 115, 121). Plaintiff currently claims that he was disabled on June 3, 2011 (id. at 16, 213, 220). As a result, the court focuses on the medical history that is related to Plaintiff's physical impairments as of that date.

a. Left leg

Plaintiff complained of pain in his left knee, shin, and ankle due to the repair of fractures of his left tibia and fibula in 2004 by an open reduction internal fixation ("ORIF") surgical procedure, which involved the implantation of an intramedullary ("IM") rod and three screws (id. at 298, 305, 327). The medical evidence shows that Plaintiff had some osteoarthritis, walked with an antalgic gait, [1] and occasionally used a cane, but generally maintained full range of motion in his knee and foot (id. at 303, 452, 465, 467, 471).

Plaintiff saw his primary care physician ("PCP"), Dr. Nao Sakurai, on June 30, 2011 (id. at 21, 316). Plaintiff had fallen the day before when his left knee suddenly collapsed (id. at 316). He reported "frequent numbness" in his left leg (id.). He was instructed to keep a follow-up appointment at New England Orthopedic Surgeons ("NEOS") (id. at 318).

Physician's Assistant Hank Casagrande examined Plaintiff's left knee and shin at NEOS on August 5, 2011 (id. at 303). Plaintiff complained of continued pain in his knee and leg with "intermittent feelings of constant achy pain throughout [his] knee, shin, and ankle" (id). He had full range of motion of his left knee, foot, and ankle (id.). An x-ray of Plaintiff's left knee showed "advancing medial compartment arthrosis, " which was consistent with prior radiographs (id. at 303, 304). Casagrande's impression was that Plaintiff suffered "[s]ymptomatic osteoarthropathy of the knee and retained hardware" (id. at 303). Plaintiff received a steroid injection in his left knee for pain relief (id.).

On August 26, 2011, J. Stephen Brecht, M.D. of NEOS recorded that Plaintiff's x-rays revealed "a healed midshaft tibia fracture and fibula fracture, " with "good alignment" and "no near ankle arthritis" (id. at 305, 306). The screws were intact (id. at 305). Dr. Brecht confirmed the diagnosis of "some early left knee osteoarthritis" (id.). Despite Dr. Brecht's advisement that there was a fifty per-cent chance that Plaintiff's pain would improve after surgery to remove hardware, and, in fact, there was the potential for increased pain, Plaintiff opted to undergo surgery (id.).

In January 2012, Dr. Sakurai recorded that Plaintiff visited Puerto Rico from November 20, 2011 through January 13, 2012 (id. at 390). Plaintiff was scheduled to have surgery to remove hardware from his left leg in January 2012, but first needed clearance from his cardiologist (id.). Although physical therapy had been recommended, Plaintiff had not yet scheduled a session (id.).

On January 26, 2012, Dr. Brecht recorded that Plaintiff experienced tenderness over the two distal locking screws and the single proximal screw in his left leg (id. at 400). Surgery to remove the locking screws was scheduled for March 7, 2012 (id. at 401, 403). Plaintiff complained that Dr. Sakurai would not ...

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