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Gross v. Colvin

United States District Court, D. Massachusetts

September 29, 2016

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


          Indira Talwani United States District Court

         Plaintiff John Francis Gross (“Gross”) seeks judicial review of the final decision by Commissioner of Social Security Carolyn Colvin (“Commissioner”) denying his claim for disability insurance benefits. Following such review, the case is remanded to the Commissioner for further proceedings consistent with this Memorandum and Order.

         I. Procedural History

         On April 30, 2012, Gross applied for disability insurance benefits. Soc. Sec. Admin. Record, Transcript (“TR”), 155 [#13]. Gross reported that he suffered from bulging discs in his lower back, depression, anxiety, insomnia, and chronic lower back pain. TR 159 [#13]. He stated that his conditions became severe enough to keep him from working on September 24, 2011. Id. Gross' claim was denied on October 22, 2012, and again after reconsideration on March 28, 2013. TR 68-69, 80-81 [#13]. A hearing on the matter was held on February 20, 2014, and the Administrative Law Judge (“ALJ”) denied Gross' claim for benefits on March 31, 2014. TR 30, 9 [#13]. The Appeals Council declined Gross' request for review of the ALJ decision on May 14, 2015. TR 1-6 [#13].

         II. Standard of Review

         The Social Security Administration is authorized to pay disability insurance benefits to persons who have a disability. “A person qualifies as disabled, and thereby eligible for such benefits, ‘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.'” Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423 (d)(2)(A)).

         The Social Security Administration has promulgated regulations that establish a five-step sequential evaluation process to determine disability. See 20 C.F.R. § 404.1520(a)(4)(2016). At step one, the agency considers work activity, and whether the claimant is doing substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). At step two, the agency looks at the medical severity of the impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At step three, the agency looks at whether the impairment meets or equals the list of impairments presumed severe enough to render one disabled. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. §404 Subpt. P, App. 1. At step four, the agency looks at whether the claimant can do previous work. 20 C.F.R. § 404.1520(a)(4)(iv). The burden of proof is on the claimant for steps one through four. At the fifth step, the agency considers vocational factors (age, education, and past work experience) to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(v); see also Barnhart, 540 U.S. at 24-25. It is the burden of the government to prove that there are sufficient jobs in the economy that the claimant can perform. Tavarez v. Commisioner of Social Security, 138 Fed.Appx. 327, 329 (1st Cir. 2005) (per curiam).

         An individual may obtain judicial review of any decision of the Commissioner, and the court has the power to affirm, modify, or reverse the decision, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). A denial of benefits must be upheld, however, “unless the [Commissioner] has committed a legal or factual error in evaluating a particular claim.” Manso-Pizarro v. Sec'y Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quotation marks and citation omitted). In reviewing such denial, the Commissioner's findings of fact are conclusive if they are supported by substantial evidence, 42 U.S.C. § 405(g), and must be upheld “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.” Irlanda Ortiz v. Sec'y Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriquez v. Sec'y Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).

         III. Facts

         During the hearing on Gross' application, the ALJ made findings as to each of the five necessary determinations. At step one, the ALJ found that Gross had not been engaged in substantial gainful activity during the relevant time period. TR 15 [#13]. Under step two, the ALJ found that Gross suffered from degenerative disc disease which qualified as a severe impairment. TR 15 [#13]; 20 C.F.R. §404, Subpt. P. App. 1, §1.00(A) (2016). The ALJ rejected Gross' other claims of depression, anxiety and insomnia, finding that they do not cause “more than a minimal limitation in the claimant's ability to perform basic mental work activities and are therefore non-severe.” TR 17 [#13]. At step three, the ALJ found that Gross' impairment did not meet or medically equal the severity of one of the listed impediments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. TR 18 [#13]. At step four the ALJ was called upon to determine Gross' residual functioning capacity (“RFC”). Id. The ALJ found:

The claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) except he can stand or walk for no more than 2 hours in total over the course of an 8-hour workday. He can never climb ladders, but can occasionally climb ramps or stairs, balance, stoop, kneel, crouch or crawl.

TR 18 [#13]. In assessing Gross' abilities, the ALJ considered the opinions of Dr. Jao and Dr. Holmes, state agency medical consultants. Dr. Jao opined that Gross was able to lift and/or carry 50 pounds occasionally and 25 pounds frequently; stand and/or walk for 6 hours and sit for 6 hours in an 8-hour workday; frequently climb, balance, kneel and crawl, and occasionally stoop or crouch. TR 10, 66 [#13]. Dr. Holmes opined that Gross could lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for 6 hours and sit for 6 hours in an 8hour workday; and occasionally climb, balance, stoop, kneel, crouch or crawl. TR 20, 78-79 [#13]. The ALJ accorded lesser weight to Dr. Jao's opinion due to other objective medical evidence submitted in the case. TR 19-21 [#13]. The ALJ also gave weight to Gross' statements of his own limitations. TR 20 [#13]. Based on the testimony and evidence, the ALJ found that Gross would be unable to perform any past relevant work. TR 21 [#13].

         Finally, at step five the ALJ sought to determine if, based upon Gross' age, education, work experience, and residual functional capacity, there were jobs that exist in significant numbers that Gross could perform. TR 21 [#13]. Under this step, the ALJ made several determinations. First, she found that Gross was 50 years old at the date of the alleged disability onset and therefore defined as an individual closely approaching advanced age. TR 21 [#13]; 20 C.F.R. 404.1563. Additionally, she found that Gross had a high school education and could communicate in English. TR 21 [#13]. The ALJ also found that the question of transferrable job skills was irrelevant, as Gross would be classified as “not disabled, ” regardless of this question. TR 21 [#13]. The ALJ also used the testimony of vocational expert Dr. Robert Lasky. TR 21, 48-58 [#13]. The ALJ asked Dr. Lasky to identify “light jobs” that one would be able to perform given the additional restrictions assigned to Gross, most notably the restriction that he may only stand or walk for two hours in an eight hour work day. TR 22, 51 [#13]. Dr. Lasky identified three such jobs: an inspector, a photocopy machine operator, and a mail clerk. TR 22, 51-52 [#13]. During examination from Gross' attorney, Dr. Lasky stated that “there would be variability” as to the number of employers who would offer these positions to candidates who are limited to only two hours of standing a day. TR 22, 53 [#13]. Dr. Lasky also testified that it would not be uncommon for these types of positions to have additional responsibilities, beyond their job description. TR 55, 26 [#13]. Considering each of these factors, the ALJ determined that “there are jobs that exist in significant numbers in the national economy that the claimant can perform.” TR 21 [#13].

         IV. ...

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