United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani United States District Court
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.
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].
Standard of Review
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)).
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).
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)).
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].
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].