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Arrington v. Colvin

United States District Court, D. Massachusetts

November 3, 2016

MICHAEL D. ARRINGTON, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS REGARDING DENIAL OF SOCIAL SECURITY DISABILITY INSURANCE BENEFITS

          Judith Gail Dein United States Magistrate Judge.

         I. INTRODUCTION

         The plaintiff, Michael D. Arrington (“Arrington”), has brought this action pro se pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3), in order to challenge the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his claim for Social Security Disability Insurance (“SSDI”) benefits. The matter is before the court on the “Plaintiff's Motion for Order Reversing or Remanding the Decision of the Commissioner” (Docket No. 24), by which the plaintiff is seeking an order reversing the Commissioner's decision and awarding him benefits or, in the alternative, remanding the matter to the Social Security Administration for further administrative proceedings. It is also before the court on the “Defendant's Motion for Order Affirming the Decision of the Commissioner” (Docket No. 31), by which the Commissioner is seeking an order affirming her decision that the plaintiff was not disabled during the relevant time period of March 11, 2007 through June 30, 2007, and was therefore not entitled to SSDI benefits. At issue is whether the Administrative Law Judge (“ALJ”), in reaching his decision that Arrington was not disabled, erred by failing to consider medical evidence created after the date when the plaintiff was last insured, and by failing to analyze whether the plaintiff's physical impairments met or medically equaled certain of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Social Security regulations. Also at issue is whether the ALJ committed reversible error in connection with his assessments of Arrington's credibility and residual functional capacity, and in connection with his determination that Arrington was capable of performing jobs that existed in significant numbers in the national and regional economies. In addition, Arrington challenges the Social Security Appeals Council's denial of his request for review of the ALJ's decision on the grounds that the Appeals Council failed to credit newly submitted medical evidence, and provided nothing more than “a boilerplate justification” for its decision.

         On appeal, “the court's function is a narrow one limited to determining whether there is substantial evidence to support the [Commissioner's] findings and whether the decision conformed to statutory requirements.” Geoffroy v. Sec'y of Health & Human Servs., 663 F.2d 315, 319 (1st Cir. 1981). The decision must be affirmed, “even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence.” Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987). After a thorough review of the Appeals Council's decision, the ALJ's decision and the underlying record in this case, this court finds that the Commissioner's denial of Arrington's claim was supported by substantial evidence and must be upheld. Therefore, and for all the reasons detailed below, the plaintiff's motion to reverse or remand is DENIED and the Commissioner's motion to affirm is ALLOWED.

         II. STATEMENT OF FACTS[1]

         Arrington was born on February 4, 1960, and was 50 years old at the time he applied for SSDI. (Tr. 312). He left high school after the eleventh grade, but was able to earn a GED and to complete a couple of semesters at a junior college. (Tr. 54). During the time period from October 1980 to February 1985, Arrington served in the United States Coast Guard. (Tr. 312, 1146). He subsequently held a variety of jobs, including jobs as a security guard for various companies, a loss prevention specialist in a retail store, and a package delivery driver for United Parcel Service. (Tr. 55-63, 378). Arrington has not engaged in any significant work activity since October 2002. (Tr. 377). He claims that he has been disabled from working since March 10, 2007 as a result of degenerative disc disease in his back and arthritis in his left leg and knee. (Tr. 373, 377).

         The record indicates that Arrington has been suffering from knee pain since 1988, when he twisted his left knee while working. (Tr. 1146). Although Arrington underwent arthroscopic knee surgery following the 1988 incident, he sustained additional workplace injuries to his left knee in 1994 and 1995. (Id.). As a result of those incidents, Arrington underwent a second arthroscopic surgery and then a left ACL reconstruction. (Id.; Tr. 1464).

         Arrington did well for a couple of years following his ACL reconstruction surgery. (Tr. 1464). However, he subsequently developed chronic pain in his left knee, as well as feelings of weakness and occasional buckling of the knee. (See Tr. 517, 526, 1455, 1464). Beginning in 2007, Arrington was treated with visco supplementation injections on numerous occasions, but was unable to obtain long-term relief from his knee pain and underwent another arthroscopic surgery in 2010. (See, e.g., Tr.555-56, 586-88, 621-23, 692-94, 1146, 1464). The medical records show that this surgery was not helpful, and that he was given medication and a knee brace to address his continuing complaints of pain. (Tr. 1464).

         The plaintiff also has a history of chronic back pain, and testing has revealed moderate degenerative disc disease in the lumbar spine. (Tr. 544, 742, 1540). According to the medical records, Arrington has received medication to treat sciatica stemming from his back condition. (Tr. 1540). However, his complaints have been focused primarily on his left knee condition.

         Despite Arrington's complaints of ongoing pain, none of the treating, examining or consulting physicians have ever indicated that the plaintiff's physical impairments render him incapable of carrying out full time employment. On the contrary, one of Arrington's orthopedic surgeons, Gary J. Kelman, M.D., repeatedly authorized the plaintiff to return to “sedentary work[2] alternating with ambulatory status 1:1; no climbing, squatting, kneeling, bending, or stooping.” (See, e.g. Tr. 529, 540, 547, 556, 593, 1068). Similarly, in 2003, an independent medical examiner found that Arrington remained capable of performing sedentary work, and in 2010, two separate State agency consultants determined that Arrington had the residual functional capacity (“RFC”) to carry out sedentary work or a limited range of light work.[3] (See Tr. 724-31, 873, 918-25). Arrington disagrees with these assessments, and contends that he has been disabled from working since 2007.

         Procedural History

         Arrington first sought Social Security benefits on December 31, 1997, when he filed an application for Social Security Income benefits claiming a disability onset date of October 30, 1997. (Dec. 1; Tr. 14). The application was denied on March 17, 1998, and Arrington did not appeal. (Id.). However, in January 2004, the plaintiff filed new applications for SSDI and Supplemental Security Income (“SSI”) benefits. (Id.). In his applications, Arrington alleged that he had been disabled from working since October 6, 2002 due to problems with his left knee and left leg. See Arrington v. Soc. Sec. Admin., 358 Fed.Appx. 89, 91 (11th Cir. 2009). The applications were denied initially and on reconsideration. Id. Arrington then requested and was granted a hearing before an ALJ, which took place on November 28, 2006 in Miami, Florida. (Tr. 131). On March 10, 2007, the ALJ issued a written decision denying Arrington's claims for benefits. (Tr. 131-38). Therein, the ALJ found that Arrington had not been under a disability, within the meaning of the Social Security Act, from October 6, 2002 through the date of her decision. (Tr. 131-38).

         Arrington requested a review of the Florida ALJ's decision by the Social Security Appeals Council, and on March 13, 2008, the Appeals Council notified the plaintiff that his request had been denied. (Tr. 139-41). He then filed a civil action in the U.S. District Court for the District of Florida. Arrington, 358 Fed.Appx. at 92. In a decision on the parties' cross-motions for summary judgment in that case, the District Court found that the ALJ's denial of Arrington's claims for SSDI and SSI was supported by substantial evidence. Id. Therefore, it entered final judgment in favor of the Commissioner. Id.

         Arrington appealed the adverse ruling to the Eleventh Circuit Court of Appeals. See Id. at 91. On December 22, 2009, the Eleventh Circuit affirmed the District Court's decision. Id. at 96. Thus, the Appeals Court determined that the ALJ's findings were supported by substantial evidence, and that Arrington was not under a disability from October 6, 2002 through the date of the ALJ's decision on March 10, 2007. See id. Arrington does not dispute that the Eleventh Circuit's decision precludes him from claiming disability at any time prior to March 11, 2007.

         The plaintiff filed another application for SSDI benefits in June 2010, claiming that he had been unable to work since March 10, 2007 due to his knee and back conditions. (Tr. 312-15, 377). This application forms the basis of the claim that is presently before this court on appeal.[4] To qualify for SSDI benefits, an individual must become disabled during the period under which he is insured by the program. See 20 C.F.R. 404.131; Fischer v. Colvin, 831 F.3d 31, 32 (1st Cir. 2016) (explaining that in order “to be eligible for benefits, [SSDI claimant] had to demonstrate that her disability existed prior to her [date last insured]”). Because Arrington was last insured on June 30, 2007, he had to establish that he was disabled during the time period between March 11, 2007 and June 30, 2007. (See Dec. 3; Tr. 16, 111).

         The plaintiff's application was denied initially on August 18, 2010, and upon reconsideration on October 28, 2010. (Tr. 106-07, 143-49). Subsequently, Arrington requested a hearing before an ALJ. (Tr. 150-51). The request was granted and the hearing took place on February 6, 2012 in Miami, Florida where the plaintiff was residing at the time. (Tr. 30-40; 173-77). On February 21, 2012, the ALJ issued a decision in which he found that the plaintiff was not disabled during the relevant time period. (Tr. 250-59). Accordingly, the ALJ denied Arrington's 2010 claim for SSDI. (Tr. 259). The plaintiff immediately filed a request for review by the Social Security Appeals Council. (Tr. 233-35). This time, the Appeals Council granted Arrington's request for review, and determined that the ALJ had committed errors of law. (Tr. 124-27). Thus, on September 7, 2013, the Appeals Council vacated the ALJ's decision and remanded the matter back to the ALJ for a new hearing on Arrington's SSDI claim. (Id.).

         On December 26, 2013, Arrington moved from Florida to Boston. (Tr. 219). Consequently, the new hearing took place in Massachusetts on June 10, 2014. (Tr. 41-105). Arrington, who declined representation by an attorney or professional Social Security representative, appeared and testified at the hearing. (Tr. 50, 53-99, 102-05). The ALJ also elicited testimony from a vocational expert (“VE”), who described the plaintiff's vocational background based on his past work experience and responded to hypothetical questions, which were aimed at determining whether jobs exist in the national and regional economies for an individual with the same age, educational background, work experience and RFC as the plaintiff. (Tr. 99-02). On July 22, 2014, the ALJ issued a decision denying Arrington's claim for benefits. (Tr. 11-28).

         Arrington filed a request for review of the ALJ's July 22, 2014 decision by the Social Security Appeals Council. (Tr. 9-10). In connection with his request for review, Arrington submitted a “Statement in Support of Appeal Council Review” setting forth his challenges to the ALJ's decision, as well as a letter from Patrick Barry, M.D. dated February 6, 1989, and a document dated May 22, 2014 from the Department of Veterans Affairs. (See Tr. 2, 4, 29, 490-504). On December 19, 2014, the Appeals Council notified the plaintiff that it had considered his arguments and the materials he had submitted, but that they did not provide a basis for changing the ALJ's decision. (Tr. 1-2). Accordingly, the Appeals Council denied Arrington's request for review. (Tr. 1). As described below, Arrington challenges the adequacy of the Appeals Council's decision, and argues that it should have provided a more detailed justification for its determination. However, this court finds that the Appeals Council had no such obligation, and that the plaintiff's challenge to the Appeals Council's decision lacks merit.

         Because the Appeals Council “found no reason under [its] rules to review the [ALJ's] decision[, ]” the ALJ's July 22, 2014 decision constituted the final decision of the Commissioner with respect to Arrington's claim. (Tr. 1). Accordingly, Arrington has exhausted all of his administrative remedies, and the matter is ripe for review pursuant to 42 U.S.C. § 405(g).

         The ALJ's Decision

         A claimant is not entitled to SSDI benefits unless he is “disabled” within the meaning of the Social Security Act, which defines “disability” 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). In the instant case, the ALJ concluded that Arrington “was not under a disability, as defined in the Social Security Act, at any time from March 11, 2007, the earliest allowable onset date, through June 30, 2007, the date last insured.” (Dec. Finding #11; Tr. 28 (citation omitted)). There is no dispute that the ALJ, in reaching his decision that Arrington was not disabled, performed the five-step sequential evaluation required by 20 C.F.R. § 404.1520. The procedure resulted in the following analysis, which is detailed further in the ALJ's “Findings of Fact and Conclusions of Law.” (See Dec. 5-15; Tr. 18-28).

         The first inquiry in the five-step evaluation process is whether the claimant is “engaged in substantial gainful work activity[.]” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). If so, the claimant is automatically considered not disabled and the application for benefits is denied. See id. In this case, the ALJ found that Arrington did not engage in such activity during the relevant time period. (Dec. Finding #2; Tr. 18). Therefore, he proceeded to the second step in the sequential analysis.

         The second inquiry is whether the claimant has a “severe impairment, ” meaning an “impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]” 20 C.F.R. § 404.1520(c). If not, the claimant is deemed not to be disabled and the application for benefits is denied. See Seavey, 276 F.3d at 5. Here, the ALJ determined that Arrington suffered from the following severe impairments during the period from March 11, 2007 through June 30, 2007:

left knee pain status post arthroscopy (1988), status post arthroscopy with resection of partial ACL tear and partial medial meniscectomy (1994), and status post arthroscopy with bone graft reconstruction of ACL (1995); low back pain due to mild spondylosis with moderate degenerative disc disease at ¶ 5-S1 (per MRI in May 2006).

(Dec. Finding #3; Tr. 18 (citation omitted)). While the ALJ acknowledged Arrington's allegation that he had also been suffering from a mental impairment since 2007, the ALJ found that there was no objective evidence to support such a claim. (Dec. 6; Tr. 19). Accordingly, the ALJ found that the plaintiff had not established the presence of a severe mental impairment on or before the date last insured. (See Dec. 5-6; Tr. 18-19).

         Because the ALJ determined that Arrington had impairments that were severe, he proceeded to step three in the sequential analysis. The third inquiry is whether the claimant has an impairment equivalent to a specific list of impairments contained in Appendix 1 of the Social Security regulations. See Seavey, 276 F.3d at 5; 20 C.F.R. § 404.1520(d). At this step, the ALJ concluded that Arrington's impairments, either alone or in combination, did not meet or medically equal any of the listed impairments. The parties dispute whether this finding was supported by substantial evidence.

         In connection with his finding at step three, the ALJ considered whether Arrington's impairments met or equaled Listing 1.02 regarding major dysfunction of a joint, or Listing 1.04 concerning spinal impairments. (Dec. 6; Tr. 19). The ALJ explained that none of the treating or examining physicians had presented findings that were equivalent in severity to these or any other listed impairment. (Id.). He further stated that he had considered the opinions of the State agency consultants who had evaluated this issue at the initial and reconsideration levels of the administrative review process and had determined that Arrington's impairments did not meet or medically equal any of the listed impairments. (Id.). As described below, this court finds that there is substantial support for the ALJ's decision on this issue.

         After finding that Arrington's impairments did not meet or medically equal any of the listed impairments, the ALJ proceeded to step four in his analysis. The fourth inquiry asks whether “the applicant's ‘residual functional capacity' is such that he or she can still perform past relevant work[.]” Seavey, 276 F.3d at 5. Thus, in order to answer this question, the ALJ must first determine the claimant's RFC. In the instant case, the ALJ assessed Arrington's RFC as follows:

After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to lift and/or carry 20 pounds occasionally and 10 pounds frequently. He was able to stand and/or walk for 2 hours over an 8-hour workday. He was able to sit for 6 hours over an 8-hour workday. He could occasionally climb, balance, stoop, kneel, crouch or crawl. He needed to avoid concentrated exposure to extreme cold, humidity, vibration and hazards.

(Dec. Finding #5; Tr. 19). Arrington argues that this finding was erroneous because the ALJ did not properly evaluate the credibility of Arrington's statements regarding the nature and extent of his pain and other symptoms, and because the ALJ adopted the opinion of a State agency consultant who did not have an opportunity to review the full medical record instead of adopting the opinions of Arrington's treating physicians. As explained in detail below, this court finds that the ALJ's decision on these matters was appropriate and does not warrant reversal or a remand to the Social Security Administration.

         In reaching his conclusion regarding Arrington's RFC, the ALJ followed well-established procedures. Thus, the ALJ first considered the plaintiff's symptoms and the extent to which those symptoms were consistent with the objective medical evidence and other evidence of record. (Dec. 6-12; Tr. 19-25). Because the ALJ determined that Arrington's medically deter-minable impairments could reasonably be expected to cause the plaintiff's alleged symptoms, he went on to determine whether the plaintiff's subjective statements about his pain and other symptoms were credible in light of the record as a whole. (Dec. 12-13; Tr. 25-26). Accordingly, the ALJ considered the plaintiff's testimony at the hearing, the objective medical evidence and the available opinion evidence. (See Dec. 12-13; Tr. 25-26). The ALJ concluded that in this case, “the claimant's statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely credible[, ]” to the extent Arrington testified to greater limitations than those determined by the ALJ in his assessment of the plaintiff's RFC. (Dec. 12; Tr. 25).

         After explaining the basis for his RFC determination, including the basis for his assessment of Arrington's credibility, the ALJ concluded that Arrington was unable to perform his past relevant work as a loss prevention security guard or a driver for United Parcel Service. (Dec. 13; Tr. 26). Consequently, he reached the fifth and last step in the sequential analysis.

         The fifth inquiry is whether, given the claimant's RFC, education, work experience and age, the claimant is capable of performing other work. See Seavey, 276 F.3d at 5; 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. At step five, the Commissioner has the burden “of coming forward with evidence of specific jobs in the national economy that the applicant can still perform.” Seavey, 276 F.3d at 5. Here, the ALJ relied on the VE's testimony to conclude that Arrington was capable of performing jobs that exist in significant numbers in the national economy, including the unskilled, sedentary jobs of a surveillance system monitor, a food order clerk and a circuit board inspector. (Dec. 14-15; Tr. 27-28). Therefore, the ALJ found that Arrington was not disabled under the Social Security Act on or before his date last insured. (Dec. 15; Tr. 28). Arrington challenges the ALJ's reliance on the VE's testimony, as well as his conclusion that the plaintiff could perform other work. For the reasons discussed below, this court finds that Arrington's challenge to the ALJ's finding at step five of the disability analysis is insufficient to warrant relief in his favor, and that the Commissioner's decision to deny his claim for SSDI benefits must be affirmed.

         Additional factual details relevant to this court's analysis are described below where appropriate.

         III. ANALYSIS

         A. Standard of Review

         In this action, Arrington is seeking judicial review of the Commissioner's “final decision” pursuant to the Social Security Act § 205(g), 42 U.S.C. § 405(g) (the “Act”). The Act provides in relevant part as follows:

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action …. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ….

42 U.S.C. § 405(g) (emphasis added). The Supreme Court has defined “substantial evidence” to mean “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)); accord Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991).

         As the First Circuit has explained:

In reviewing the record for substantial evidence, we are to keep in mind that “issues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the [Commissioner].” The [Commissioner] may (and, under [her] regulations, must) take medical evidence. But the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [her], not for the doctors or for the courts. We must uphold the [Commissioner's] findings in this case if a reasonable mind, reviewing the record as a whole, could accept it as adequate to support [her] conclusion.

Lizotte v. Sec'y of Health & Human Servs., 654 F.2d 127, 128 (1st Cir. 1981) (quoting Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). Therefore, “the court's function is a narrow one limited to determining whether there is substantial evidence to support the [Commissioner's] findings and whether the decision conformed to statutory requirements.” Geoffroy, 663 F.2d at 319. The Commissioner's decision must be affirmed, “even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence.” Rodriguez Pagan, 819 F.2d at 3.

         “Even in the presence of substantial evidence, however, the Court may review conclu-sions of law, and invalidate findings of fact that are ‘derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.'” Musto v. Halter, 135 F.Supp.2d 220, 225 (D. Mass. 2001) (quoting Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam)) (internal citations omitted). “Thus, if the ALJ made a legal or factual error, the court may reverse or remand such decision to consider new, material evidence or to apply the correct legal standard.” Ross v. Astrue, C.A. No. 09-11392-DJC, 2011 WL 2110217, at *2 (D. Mass. May 26, 2011) (internal citation omitted).

         B. Plaintiff's Challenge to the Appeals Council's Decision

         Arrington first takes issue with the Appeals Council's December 19, 2014 decision to deny his request for review of the ALJ's decision denying his claim for SSDI benefits. (Pl. Mem. (Docket No. 25) at 7-11). Specifically, Arrington contends that the Appeals Council erred by offering nothing more “than a boilerplate justification” for its decision despite acknowledging that it was considering additional evidence. (See id. at 8, 10-11). He further argues that the Appeals Council's failure to find a basis for changing the ALJ's decision in the newly submitted material, as well as its failure to find fault with the ALJ's handling of medical evidence generated after the date last insured, amounted to an egregious error or a mistake of law. (Id. at 9-10, 15). This court finds that the plaintiff' challenge to the Appeals Council's decision is without merit.

         Appeals Council's Failure to Provide a Detailed ...


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