United States District Court, D. Massachusetts
JEFFREY P. HOLMES, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration Defendant.
MEMORANDUM AND ORDER
J. Casper United States District Judge
Jeffrey P. Holmes (“Holmes”) brings this action
pursuant to the Social Security Act, 42 U.S.C. § 405(g),
seeking judicial review of the final decision of Carolyn
Colvin, Acting Commissioner of the Social Security
Administration (“the Commissioner”), issued by
Administrative Law Judge (“ALJ”) Sean Teehan on
August 24, 2014 denying his claim for Social Security
disability insurance benefits (“SSDI”) with the
Social Security Administration (“SSA”). D. 1; D.
13; R. 11, 37, 423. Holmes filed a motion to reverse the
ALJ's decision, D. 13, and the Commissioner filed a cross
motion to affirm the ALJ's decision, D. 21. For the
reasons stated below, the Court DENIES Holmes's motion to
reverse and ALLOWS the Commissioner's motion to affirm.
was 57 years old when he first applied for disability
benefits in 2010. R. 423. He completed high school in 1970
and underwent training for refrigerator repair. R. 96-97,
Holmes worked as a receptionist, office support worker and
mail clerk. R. 103, 178. His duties entailed reception work,
answering the phone, servicing the copy machines and
distributing mail. R. 103. The copy machine and mail duties
involved climbing stairs, kneeling, walking up a steep hill
and standing on a concrete floor, all of which caused him
severe pain. Id.
January 15, 2010, Holmes filed an application for SSDI
benefits, claiming that, as of March 15, 2009, he was unable
to work due to club feet. R. 11, 271. Holmes later clarified
the reasons for his inability to work to include lower back
pain, poor vision, foot deformities and club feet. D. 13; D.
22; R. 252-60, 274-75. Holmes then amended his disability
onset date to January 1, 2011. R. 11, 326.
initial review of Holmes's SSDI application, the SSA
denied his claim on May 12, 2010. R. 11, 271-73. Holmes
requested reconsideration of his claim on May 25, 2010, R.
274, and on November 29, 2010, the SSA again found Holmes to
be ineligible for benefits, R. 275. On January 13, 2011,
Holmes requested a hearing before an ALJ, R. 278, which was
held on June 21, 2012, R. 11, 252. In a decision dated June
29, 2012, the ALJ determined that Holmes was not disabled
within the definition of the Social Security Act and denied
his claim. R. 11, 260. Holmes appealed the ALJ's
decision. D. 1. On October 11, 2013, the Appeals Council
vacated and remanded the case to the ALJ because of new
evidence regarding Holmes's insurance status and because
the ALJ had assigned great weight to the consultative
examiner's and state agency's opinions that had been
obtained prior to Holmes's amended onset date. R. 266-69.
The Appeals Council determined that these sources were not
able to consider pertinent evidence for the relevant period
when rendering their opinions. R. 267-69. On July 10, 2014,
the same ALJ conducted a second hearing, R. 11-37, 268, and
issued a written decision on August 25, 2014 that Holmes was
not disabled, D. 1; R. 1-4, 11-37. The Appeals Council denied
Holmes's second request for review on December 18, 2015.
D. 1; R. 1-4. Holmes then filed a timely suit in this Court.
D. 1; D. 13; D. 22.
Entitlement to Disability Benefits and Social Security
obtain SSDI benefits, a claimant must prove that he has a
“disability, ” defined by the Social Security Act
as an “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.
§§ 416(i)(1), 423(d)(1)(A); see 20 C.F.R.
§ 404.1505. The impairment must be sufficiently severe,
preventing the claimant from engaging in any of his previous
work or any other gainful activity that exists in the
national economy. See 42 U.S.C. § 423(d)(2)(A);
20 C.F.R. § 404.1505.
follows a five-step sequential analysis to determine whether
an individual is disabled and thus whether the application
for benefits should be approved. 20 C.F.R. §
404.1520(a); see Seavey v. Barnhart, 276 F.3d 1, 5
(1st Cir. 2001). First, the claimant cannot be engaged in
substantial gainful work activity or the application will be
denied. 20 C.F.R. § 404.1520(a). Second, without a
severe medically determinable impairment or combination of
impairments, within the relevant time period, the claimant
cannot be disabled and the application is denied.
Id. Third, if the impairment meets or equals the
conditions of one of the “listed” enumerated
impairments in the Social Security regulations, the claimant
is disabled and the application is approved. Id.
Fourth, where the impairment does not meet the conditions of
one of the listed impairments the SSA determines the
claimant's residual functional capacity
(“RFC”). Id. If the claimant's RFC
allows him to still perform his past relevant work he is not
disabled and the application is denied. Id. Fifth,
if the claimant, given his calculated RFC, education, work
experience and age, is unable to do any other work within the
national economy he is disabled and the application is
Standard of Review
Court may enter “a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g). Judicial review is
limited, however, “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). Even where the
record “arguably could justify a different conclusion,
” the Court must accept the Commissioner's findings
of fact if they are “supported by substantial
evidence.” See Whitzell v. Astrue, 792
F.Supp.2d 143, 148 (D. Mass. 2011) (quoting Rodriguez
Pagan v. Sec'y of Health & Human Servs., 819
F.2d 1, 3 (1st Cir. 1987)) (internal quotation marks
omitted); see also 42 U.S.C. § 405(g).
Substantial evidence exists “if a reasonable mind,
reviewing the evidence in the record as a whole, could accept
it as adequate to support [the Commissioner's]
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)) (internal
quotation mark omitted).
Commissioner's factual findings, however, “are not
conclusive when derived by ignoring evidence, misapplying the
law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)
(citations omitted). Thus, if the claimant demonstrates that
the ALJ made a legal or factual error, Manso-Pizarro v.
Sec'y of Health & Human Servs., 76 F.3d 15, 16
(1st Cir. 1996), “the court may reverse or remand such
decision to consider new, material evidence or to apply the
correct legal standard, ” Martinez-Lopez v.
Colvin, 54 F.Supp.3d 122, 129 (D. Mass. 2014) (citation
and internal quotation mark omitted); see 42 U.S.C.
Before the ALJ
considered extensive evidence regarding Holmes's medical
history, including treatment records, assessments and
diagnoses and testimony from Holmes and his physician
regarding his foot deformities and back pain. R. 11-37,
639-872. a. Foot Deformities Holmes was born with club feet
requiring him to wear corrective casts from birth until
approximately age four. R. 17, 639. Despite never receiving
corrective surgery, Holmes did not see a podiatrist until
2011, at the age of 58. R. 18, 689-90. During his initial
January 12, 2011 visit with the podiatrist, Dr. Heffernan,
Holmes complained of painful collapsed flat feet that caused
discomfort especially with any significant standing or
walking activities. R. 18, 689-90. Holmes had been wearing
mid-rise leather walking shoes or boots and had found some
mild benefit with wearing cushioned, over-the-counter arch
supports, but he had not used any custom orthotic devices or
bracing as an adult. R. 18, 689.
first visit, Dr. Heffernan observed Holmes's walking and
saw no significant “antalgic gait” but noted
“significant collapse of the medial longitudinal
arches.” R. 18-19, 689-90. Dr. Heffernan also observed,
among other things, that Holmes had extremely tight gastroc
and soleus muscles with ankle joint dorsiflexion limited to
only two to three degrees with the knees extended. R. 19,
689. He further observed limited subtalar joint range of
upon his examination and observations of Holmes, Dr.
Heffernan recommended higher quality over-the-counter
orthotic devices, custom orthotic devices and more supportive
ankle-foot orthotics (“AFOs”) in place of the
cushioned footwear Holmes had been using. Id. Dr.
Heffernan discussed surgical intervention and the benefits of
performing daily static stretching for tight muscles and
ordered x-rays. Id.
returned for a second visit to Dr. Heffernan on February 22,
2011 after having purchased over-the-counter orthotic
devices. R. 19, 699. Dr. Heffernan deemed these insufficient
to counter the significant foot collapse. Id. Dr.
Heffernan again advised Holmes of the need for more
supportive AFOs and offered to determine if they were covered
by his insurance plan. R. 19-20, 699.
Holmes's visit on March 16, 2011, Dr. Heffernan noted
that Holmes had been fitted for AFO braces, but insurance
issues had prevented Holmes from getting them at that time.
R. 20, 703. The doctor recommended temporary New Balance
orthotics until Holmes could get the AFO devices.
6, 2011, Kent VanHeukelom, a certified orthoptist indicated
that he had fitted Holmes with bilateral custom molded ankle
foot braces which should prevent his deformity from worsening
if worn every day when walking or standing. R. 20, 684. At
his next visit with Dr. Heffernan on May 17, 2011, Holmes
reported that he found the AFO braces uncomfortable and
ill-fitting. R. 20, 706-07. Dr. Heffernan observed Holmes
walk with a slight antalgic gait when wearing the AFO braces.
Id. Dr. Heffernan advised Holmes to seek a
modification of the braces from the manufacturer.
Id. A May 23, 2011 follow-up letter by Dr. Heffernan
stated that Holmes had significant collapse of both feet in
stance and with all weight-bearing/walking activities making
it impossible to perform work activities involving standing,
walking or lifting without pain. R. 20, 677. The letter
further stated that Holmes's use of appropriate footwear,
orthotic devices and custom AFOs over the past four months
had not provided significant improvement in weight bearing
discomfort/pain and left Holmes with a disability lasting
longer than one year without the ability to be gainfully
returned with properly fitted orthotic devices for his next
visit to Dr. Heffernan on June 15, 2011. R. 20, 710. At a
visit on July 27, 2011, Holmes reported that, while wearing
his orthotic brace devices on a regular basis, he had no
significant problems and experienced less pain but still had
some difficulty with increasing his stamina for walking. R.
20, 713. Dr. Heffernan also treated callus formation along
the bottom side of Holmes's great toes by shaving the
pinch calluses smooth. Id.
a visit on October 3, 2011, Holmes reported that he had
recently developed pain at the left arch area from when he
had attempted a brief walk without the AFO braces. R. 21,
716. Dr. Heffernan observed that Holmes had a “slight
slow gait” with the AFO braces and advised Holmes to
wear them with supportive shoes for all weight-bearing
activities. Id. Dr. Heffernan made a similar
observation and recommendation at a subsequent visit on
December 1, 2011. R. 21, 719.
April 4, 2012 visit, Dr. Heffernan observed that Holmes had
no significant distress with walking. R. 23, 806-07. Dr.
Heffernan further noted that Holmes continued to walk with a
rather slow gait with use of the customized AFOs,
experiencing mild pain with deep palpitation over the medial
arch areas over the posterior tibial tendons at the navicular
tuberosity insertion sites. Id. Holmes's muscle
tightness and ankle dorsiflexion remained the same as prior
visits. Id. Dr. Heffernan wrote that some mild wear
and tear at the distal sole of Holmes's shoes indicated
that the AFOs were likely helping Holmes to maintain a more
proper position of the feet during weight bearing and gait.
24, 2012, Holmes told Dr. Heffernan that any attempts at
brief weight bearing without the AFO braces caused more
severe pain and an inability to walk. R. 23, 808. Dr.
Heffernan observed that Holmes had a very slow gait with the
use of the AFOs as well as all the previously identified with
the same level of severity. Id.
August 8, 2012, Holmes complained of pain with ambulation
with any extensive walking without the AFO braces and an
inability to walk any long distance comfortably, even with
the braces. R. 24, 810. Dr. Heffernan noted that Holmes did
not present with any acute distress, but walked with a slow
gait. Id. On February 13, 2013, Holmes's
symptoms remained the same except that Dr. Heffernan noted
that Holmes was “generally doing quite well with
ambulation.” R. 24, 811.
October 31, 2013, Holmes complained of worsening problems
regarding endurance and his ability to walk, stating that he
could barely walk two blocks without having to stop and sit
down. R. 25, 813. Holmes described significant tightness,
cramping and pain sensations in his calf muscle areas during
and after walking activities. Id. Dr. Heffernan
noted that Holmes seemed to have more significant pain
standing in bare feet in relaxed position and also had more
antalgic pain walking with the AFO braces in the hallway.
Id. Further x-rays were taken to evaluate any
increased degenerative changes compared to the prior x-rays
from 2011. Id.
December 2, 2013, Holmes complained of increasing difficulty
in his ability to walk and having no endurance with walking
or standing activities. R. 25, 815. Holmes continued to
describe significant tightness in the calf muscle areas at
both legs with cramping and pain sensations during and after
walking activities. Id. Dr. Heffernan noted that
Holmes was in no acute distress, but did have noticeable
significant pain with weight bearing in a relaxed stance and
while walking even when wearing the custom AFO devices.
Id. Dr. Heffernan compared Holmes's recent
October 31, 2013 x-rays with x-rays from January 2011 which
revealed slightly increased joint space narrowing at the
right first metatarsophalangeal joint with increased
sclerosis at the base of the proximal phalanx of the right
great toe, significant metatarsus adductus at the right foot
with lowering of the calcaneal inclination and significant
pea planus deformities bilaterally. R. 25-26, 815. Dr.
Heffernan noted that the x-rays of the left foot revealed
significant pea planus and collapse of the medial
longitudinal arch and midfoot articulations. Id. Dr.
Heffernan discussed a possible referral for a surgical
consultation regarding reconstructive foot surgery with
Holmes, but Holmes preferred not to consider any surgical
procedures at that time. R. 26, 815.
March 3, 2014, Holmes reported increased difficulty in
walking any significant distances and problems with endurance
with standing and walking activities. R. 27, 817. Dr.
Heffernan found that ankle joint dorsiflexion at this point
was limited to one to two degrees at the right ankle and
negative one degree at the left ankle with subtalar joints
maintained in neutral position. Id. Dr. Heffernan
was unable to get the left ankle joint to neutral position
with the left knee extended and was just barely able to
achieve some dorsiflexion at the left ankle with the knee at
ninety degrees of flexion. Id.
9, 2014, Kent VanHeukelom, the orthoptist, wrote that he had
seen Holmes on April 28, 2014 to increase the medial arch
correction in both of his custom AFO braces. R. 29, 842. A
second adjustment was made on May 19, 2014. Id.
VanHeukelom reported that if Holmes wore both AFOs daily, all
day, that they would hopefully slow the progression of his
16, 2014, Dr. Heffernan reported that Holmes had an
“extreme limitation of the ability to walk, with
impairments that seriously interfere with his ability to