United States District Court, D. Massachusetts
H. Hennessy UNITED STATES MAGISTRATE JUDGE
plaintiff, Shannon Hatch (“Hatch”), seeks
reversal of the decision by the defendant, the Commissioner
of the Social Security Administration (“the
Commissioner”), denying her Disability Insurance
Benefits (“DIB”) and Supplemental Security Income
(“SSI”), or, in the alternative, remand to the
Administrative Law Judge (“ALJ”). (Docket #28).
The Commissioner seeks an order affirming her decision.
reasons that follow, Hatch’s Motion to Reverse or
Remand (Docket #28) is DENIED and Defendant’s Motion
for Order Affirming the Decision of the Commissioner (Docket
#29) is ALLOWED.
15, 2009, Hatch, then a Certified Nursing Assistant
(“CNA”), filed an application for DIB and SSI.
(Tr. 62-63). She alleged onset of disability due to a back
injury suffered while transferring a patient on July 27,
2008, and re-aggravated on August 18, 2008. (Tr. 62-63,
163-76). The application was denied both initially and upon
reconsideration. (Tr. 62-69, 75-80). On July 26, 2011, Hatch
amended her claim, requesting a closed period for DIB and SSI
beginning on July 27, 2008, and ending on March 5, 2011. (Tr.
152-53). Following a July 28, 2011, hearing (Tr. 28-61), the
ALJ on September 19, 2011 rendered a decision that Hatch had
not been disabled from July 27, 2008 through the date of the
decision, including the closed period requested by Hatch.
October 18, 2011, the Appeals Council denied Hatch’s
request for administrative review, making the ALJ’s
decision final and ripe for judicial review. (Tr. 1-6).
Having timely pursued and exhausted her administrative
remedies before the Commissioner, Hatch filed a complaint
with this Court on December 13, 2012, pursuant to 42 U.S.C.
§ 405(g). (See Docket #1). Hatch then filed a
Motion to Reverse or Remand, and the Commissioner filed its
cross-motion. See Docket #15-16. Both motions have
been re-filed after initially being dismissed without
prejudice in the absence of the Administrative Record.
(See Docket #25-30).
was twenty-eight years old at the time of the alleged
disability onset, and thirty-one as of March 6, 2011, the end
date of her requested closed period of disability. (Tr. 191).
Hatch earned her G.E.D. in 2003 and has completed some
post-secondary education in an R.N. program. (Tr. 191). She
was unmarried and lived with her significant other and two
children. (Tr. 191). Hatch was certified as a Nurse’s
Aide and also held a certificate and state license in
hairdressing. (Tr. 191).
work history is as follows: she worked as a shift supervisor
at Dunkin’ Donuts locations in Ashburnham, MA and
Orange, MA from March of 2005 through March of 2006, and at
Farren Care Center in Montague, MA. (Tr. 191). Between December
2006 and the alleged disability onset date of July 27, 2008,
Hatch worked as a CNA at Quabbin Valley Health Care, earning
approximately $459.90 per week. (Tr. 191). Following her
injury, Hatch returned to work on light duty from August 1,
2008, through August 18, 2008, on which date she
re-aggravated her injury while assisting a patient to the
bathroom. (Tr. 191). Hatch remained out of work from August
18, 2008, until September of 2010 when she began working
full-time as a case aide at United Arc in Greenfield,
(Tr. 39-40). Hatch eventually moved to part-time relief work
at United Arc in January of 2011, and left her position the
following month. (Tr. 42-43). On March 6, 2011, the end date
of her requested period of disability, Hatch obtained a
cashier position with Cumberland Farms. (Tr. 43).
noted, Hatch traces her alleged disability to July 27, 2008,
when she stated she injured her back. (Tr. 318, 410, 423,
482). On initial examination on July 29, 2008, Elliot
Nottleson, Physician’s Assistant at Winchendon Health
Center, noted that Hatch’s back showed tenderness in
the lower thoracic and upper lumbar posterior processes, as
well as in the paraspinous muscles on each side of that
region. (Tr. 318). Nottleson’s impression was that
Hatch had muscle spasms and a ligament sprain in the lumbar
region; he recommended she refrain from working until the
following Monday, August 4, 2008, at which point she returned
to work with exertional restrictions. (Tr. 319). On August
11, 2008, Nottleson noted that Hatch’s back pain was
improving despite some residual tenderness, and that she was
able to move more comfortably at home. (Tr. 320). Nottleson
modified her work restrictions to the following limitations:
lift 26 to 40 pounds, carry 26 to 40 pounds, push/pull 41 to
75 pounds, and avoid extremes of neck movements. (Tr. 320).
X-rays of Hatch’s back taken on August 12, 2008, were
negative for pathology and otherwise normal aside from a mild
left lumbar curvature. (Tr. 313).
reinjured her back at work on or around August 18, 2008,
while assisting a patient who had fallen. (Tr. 321). Several
days later she returned to Nottleson, complaining of pain
radiating down her left side into her left leg. (Tr. 321).
Nottleson noted tenderness in the posterior processes, lumbar
spine, and left paraspinal muscles, and he suggested Hatch
stay out of work “for the time being.” (Tr. 321).
Nottleson referred Hatch to physical therapy at Athol
Memorial Hospital, from which Hatch was discharged on October
24, 2008 for failing to appear for visits. (Tr. 277).
of Hatch’s lumbar spine taken in September of 2008 was
normal and showed no evidence of disc bulge, protrusion, or
herniation. (Tr. 280). On September 26, 2008, Hatch’s
treating physician, Dr. David N. Havlin, found diffuse
tenderness over Hatch’s lower lumbar spine and
diagnosed her with low back pain and left medial thigh
paresthesias. (Tr. 324). Significantly, Dr. Havlin did not
believe the left medial thigh paresthesias was related to
Hatch’s back injury. (Tr. 324). Dr. Havlin recommend
Hatch remain out of work until October 20, 2008, and
prescribed Vicodin and Flexeril. (Tr. 324). Beginning on
November 8, 2008, Hatch underwent physical therapy at Heywood
Rehabilitation Center, during which she again failed to
appear for approximately four appointments. (Tr. 281-87).
Upon discharge on December 19, 2008, the physical therapist
noted that Hatch was making poor gains in terms of pain and
failed to appear for her last appointment prior to discharge.
follow-up examination on December 3, 2008, Dr. Havlin noted
that Hatch had remained out of work and complained of
continued pain in her back radiating to her left leg. (Tr.
331). Dr. Havlin recommended she remain out of work until
January 12, 2009. (Tr. 332). A subsequent MRI of
Hatch’s spine taken in December 27, 2008 was also
entirely normal, with no evidence of disc degeneration or
herniation, and no findings of any other injury or
malformation. (Tr. 289).
January 15, 2009, Hatch saw Dr. Richard Warnock for an
independent medical evaluation requested by the
(Tr. 410-15). Dr. Warnock determined that Hatch’s low
back pain was causally related to her work injury; however he
found her symptoms to be “way out of proportion to the
objective findings available” and suspected “some
symptom magnification.” (Tr. 412). Dr. Warnock did
“not have any orthopedic basis to explain
[Hatch’s] ongoing complaints” and found that
Hatch could return to work immediately without restrictions.
taken on March 18, 2009 showed a “very small”
left lateral protrusion at ¶ 4-5 with
“minimal” mass effect on the thecal sac and
“very mild” retrodisplacement at the left L5
nerve root. (Tr. 288, 300). Dr. Havlin opined that these
findings were related to the July 28, 2008, injury and the
re-aggravation on August 18, 2008. (Tr. 292). He cited
Hatch’s complaints of ongoing left-sided pain since the
initial injury and concluded the most recent MRI, which
conflicted with the two prior MRI’s, represented a
progression of Hatch’s initial back injury. (Tr. 292).
In an April 11, 2009 letter to Hatch’s attorney, Dr.
Havlin opined that although the conditions revealed in the
most recent MRI could affect Hatch later in life, Hatch did
not require surgery at that time. (Tr. 293). Dr. Havlin did
not believe, however, that Hatch could return to a CNA
position at that time, and recommended that she remain out of
work. (Tr. 293).
20, 2009, Dr. Hsin Hsieh, an orthopedic surgeon, performed an
independent medical examination requested by Hatch’s
worker’s compensation insurer. (Tr. 423-427). Dr. Hsieh
observed that Hatch had “some degree of
radiculitis” of the L5 nerve on her left side and noted
that it was “interesting” that radiculitis was
then being noticed for the first time. (Tr. 426). Dr. Hsieh
suggested that Hatch be evaluated by a spine surgeon to
determine if surgical intervention was necessary. (Tr. 426).
26, 2009, Dr. Jason Eck, an orthopedic spine surgeon,
evaluated Hatch, who complained of significant pain in her
lower back as well as her left thigh. (Tr. 339). Dr. Eck
observed that Hatch was “healthy appearing” and
in “no acute distress.” (Tr. 339). Hatch walked
with a normal gait and although Dr. Eck noticed some diffuse
tenderness in the middle of her lower back, her strength was
recorded at 5/5 throughout her lower extremities “with
the exception of 4/5 strength in her left
EHL.” (Tr. 339). Dr. Eck stated that the recent
MRI findings at the L4-L5 level could explain the back pain
and lateral leg pain, but that he was “not convinced of
the medial thigh pain.” (Tr. 340). Dr. Eck diagnosed
degenerative disc disease with a small disk herniation and
annular tear at the L4-L5 level. (Tr. 339). He recommended
that Hatch undergo a discogram and return for further
evaluation. (Tr. 340).
of 2009, Hatch filled out a Function Report in connection
with her application for benefits. (Tr. 231-240). Hatch
reported that she was able to drive, transport her children
and run errands, cook while sitting down, and wash dishes and
do laundry with breaks. (Tr. 231-235). Additionally, Hatch
reported that she was able to care for her children and pets
with some assistance, and that she was able to perform
self-care, although she noted some difficulty with tasks
involving bending. (Tr. 231, 233).
November 16, 2009, Hatch was evaluated by Dr. Louis Jenis, an
orthopedic surgeon. (Tr. 482). She complained of constant and
dull low back pain which increased with sitting on the left
side, prolonged standing, or walking. (Tr. 482). Dr. Jenis
found Hatch’s cervical, thoracic, and lumbar alignment
to be without any deformity. (Tr. 482). He noted that Hatch
had a limited range of back and bilateral hip motion due to
the pain, but also that Hatch had full cervical and shoulder
range of motion. (Tr. 482-483). Dr. Jenis reviewed the March
18, 2009, MRI and found “very minimal disc bulging at
the L4-L5 level without any significant disk dehydration
noted” and no evidence of nerve root impingement or
spondylolisthesis. (Tr. 483). He diagnosed chronic low back
pain secondary to chronic muscle strain and left piriformis
syndrome with chronic sciatica. (Tr. 483). Dr. Jenis believed
that the pain symptoms were related to a “soft tissue
type of injury” and recommended continued non-operative
care with a referral to physiatry. (Tr. 483).
their request, Dr. Havlin reported to the Massachusetts
Rehabilitation Commission (“MRC”) on January 24,
2010, that Hatch had persistent low back pain with left-sided
sciatica. (Tr. 528). Dr. Havlin opined that, over time, Hatch
had shown signs of disc degeneration, citing as evidence the
March 18, 2009 MRI. (Tr. 529). He described Hatch’s
pain as constant, dull, and localized to her left lower
lumbosacral area, which radiates into her left buttock,
posterior thigh, and lateral calf. (Tr. 529). During her most
recent visit on December 18, 2009, Dr. Havlin found
Hatch’s motor strength and range of motion in her back
to be normal, although there was discomfort and some
tenderness over the left sacroiliac joint. (Tr. 529-530). Dr.
Havlin noted that Hatch showed signs of chronic lumbar strain
and left piriformis syndrome, and opined that Hatch was
significantly disabled due to her inability to perform any
lifting, pushing, squatting, or bending. (Tr. 531). Dr.
Havlin again reported to the MRC in May of 2010 and opined
that Hatch was disabled due to her injury. (Tr. 563). He
explained that Hatch had been approved for physical therapy
by Worker’s Compensation. (Tr. 563).
Havlin’s notes from June 1, 2010, indicate that Hatch
returned to work temporarily as a medical billing
clerk and that Hatch’s attorney advised
her not to earn over $900 per week so as not to jeopardize
her disability claim. (Tr. 570). He added that Hatch intended
to find other work as Patient Care Assistant if possible.
(Tr. 570). Notes dated October 19, 2010, state that
Hatch’s back pain had not improved; however she was
working at a group home in Greenfield, MA at the time and
attending a full-time LPN program. (Tr. 566). Dr.
Havlin’s notes also provide that Hatch had been unable
to make her physical therapy appointments due to work and
school obligations. (Tr. 566). He diagnosed Hatch with
piriformis syndrome and lumbar strain, qualifying that he was
unsure if Hatch truly suffered from the former. (Tr. 566).
Consultative Psychological Examination
October 1, 2010, Dr. Kathryn McNally, a consultative
psychologist, performed a psychological examination of Hatch.
(Tr. 390-393). Hatch reported a history of childhood trauma
as well as depressive symptoms related the pain and physical
limitations caused by her back injury. (Tr. 391). Dr. McNally
noted that Hatch was taking a significant number of
painkillers which may have been masking or exacerbating
depression. (Tr. 391). She diagnosed Adjustment Disorder with
mixed emotional features. (Tr. 391). Dr. McNally assigned a
GAF score of 65 and found that Hatch’s psychological
symptoms did not interfere with daily
functioning. (Tr. 392). Further, Hatch’s
concentration and attention, understanding and memory, social
functioning, and adaptation to work all were normal. (Tr.
State Agency Opinions
September 1, 2009, medical consultant Shankar Narayan
reviewed Hatch’s records on behalf of the Social
Security Administration and provided a physical Residual
Function Capacity (“RFC”) assessment. (Tr.
378-385). Narayan found that Hatch could lift up to twenty
pounds occasionally and ten pounds frequently, could stand
for at least two hours per work day, could sit for about six
hours per work day, and had no further limitations in her
push/pull capacity. (Tr. 379). Narayan also found that Hatch
could balance, stoop, and kneel frequently; and crouch,
crawl, and climb ramps, stairs, ladders, ropes, and scaffolds
occasionally. (Tr. 380). Narayan noted that Hatch had no
manipulative, visual, or communicative limitations. (Tr.
381-382). She suggested that Hatch avoid concentrated
exposure to extreme cold or hazards such as machinery or
heights, but imposed no other environmental limitations. (Tr.
383). Narayan ultimately determined, without exposition, that
Hatch’s statement of impairment was “partially
credible.” (Tr. 380).
March 18, 2010 Dr. Leslie Caraceni, who specializes in Family
Medicine, reviewed Hatch’s records and provided a
second RFC assessment in which she reached largely similar
findings as Narayan. (Tr. 553-560). Of note: whereas Narayan
found that Hatch could lift up to twenty pounds occasionally
and ten pounds frequently, Dr. Caraceni found that Hatch
could lift up to ten pounds occasionally and under ten pounds
frequently. (Tr. 379, 554). Dr. Caraceni also found (unlike
Narayan) that Hatch could balance and kneel occasionally
rather than frequently, and could not crouch, crawl, stoop,
or climb ladders, ropes, and scaffolds. (Tr. 555). She added
that Hatch should avoid concentrated exposure to hazards such
as machinery or heights, but imposed no limitation regarding
exposure to extreme cold. (Tr. 557). All other findings were
consistent with the RFC provided by Narayan. (Tr. 378-385,
553-560). Dr. Caraceni opined that the severity of
Hatch’s symptoms and their limiting effect were
credible. (Tr. 558).
October 14, 2009, Douglas Siegel, Ph. D., a state agency
psychological consultant, performed a mental RFC assessment.
(Tr. 428-441). He opined that Hatch had affective disorders
but that they were not severe. (Tr. 428). Dr. Siegel
indicated that Hatch had mild restrictions of daily living
activities, mild difficulties in maintaining social
functioning, mild difficulties in maintaining concentration,
focus, and/or pace, and that she suffered no episodes of
decompression. (Tr. 438). He concluded that while
Hatch’s mental impairment allegations were credible,
since any such impairment did not significantly impact her
everyday functioning, Hatch did not suffer from a severe
mental impairment. (Tr. 440).
28, 2011, Hatch (represented by an attorney) and a vocational
expert gave testimony at a hearing held before ALJ Penny
Loucas. (Tr. 28-61). The ALJ began by asking Hatch if she
underwent the discogram recommended by Dr. Eck on May 26,
2009, to which Hatch testified that she had not. (Tr. 33). As
Hatch did not undergo a discogram, the subsequent diagnosis
of piriformis ...