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Holmes v. Colvin

United States District Court, D. Massachusetts

December 22, 2016

JEFFREY P. HOLMES, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff 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.[1] 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.

         II. Factual Background

         Holmes 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, 513.

         Previously, 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.

         On 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.

         III. Procedural History

         After 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.

         IV. Legal Standard

         A. Entitlement to Disability Benefits and Social Security Income

         To 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.

         The SSA 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 approved. Id.

         B. Standard of Review

         This 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).

         The 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. § 405(g).

         V. Discussion

         A. Before the ALJ

         1. Medical History

         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.

         At that 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 motion. Id.

         Based 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.

         Holmes 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.

         At 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. Id.

         On May 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 employed. Id.

         Holmes 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.

         During 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.

         At the 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. Id.

         On May 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On June 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 deformity. Id.

         On June 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 independently ...


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