United States District Court, D. Massachusetts
NORMA I. RIOS, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION
FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION TO
AFFIRM THE DECISION OF THE COMMISSIONER (DKT. NOS. 17 &
KATHERINE A. ROBERTSON United States Magistrate Judge.
the court is an action for judicial review of a final
decision by the Acting Commissioner of the Social Security
Administration ("Commissioner") regarding an
individual's entitlement to Social Security Disability
Insurance Benefits ("DIB") and Supplemental
Security Income ("SSI") pursuant to 42 U.S.C.
§§ 405(g) and 1381(c)(3). Plaintiff Norma I. Rios
("Plaintiff") asserts that the Commissioner's
decision denying her such benefits -- memorialized in an
April 25, 2014 decision of an administrative law judge
("ALJ") -- is not supported by substantial evidence
and was made in error. Specifically, Plaintiff alleges that
the ALJ committed three errors by failing to: (1) find that
fibromyalgia was a severe impairment at step two of the
five-step sequential evaluation process; (2) consider
Plaintiff's obesity's impact on her musculoskeletal
system at step three; and (3) support her Residual Functional
Capacity ("RFC") assessment with substantial
evidence. Plaintiff has filed a motion to reverse or remand
(Dkt. No. 17) and the Commissioner, in turn, has moved to
affirm (Dkt. No. 21).
parties have consented to this court's jurisdiction.
See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For
the following reasons, the court will ALLOW the
Commissioner's motion to affirm and DENY Plaintiff's
motion to reverse and remand.
completed high school and took college courses in industrial
engineering, data entry, and medical billing in Puerto Rico
before coming to Massachusetts on June 16 or 18, 2012
(Administrative Record ("A.R.") at 42, 51). In
Puerto Rico, she worked full-time for about seven years as a
medical secretary until her health prevented her from
performing the job (id. at 44, 52, 625). She stopped
working on June 14, 2012, a few days before she came to the
United States, when she was 48 years old (id. at 42,
250, 623). In her applications for DIB and SSI, Plaintiff
alleged that she was disabled due to lumbosacral and
cervical-dorsal radiculopathy, lumbosacral and
cervical-dorsal "neural foraminal [stenosis]" and
"central stenosis/HNP cord compression"
(id. at 250).
applied for DIB and SSI on June 21, 2012 alleging an onset of
disability on June 14, 2012 (id. at 210, 215). The
applications were denied initially and upon reconsideration
(id. at 121-24, 128-30, 133-35). Following a hearing
on January 22, 2014, the ALJ issued her decision on April 25,
2014 finding Plaintiff was not disabled (id. at 21,
30). The Appeals Council denied review (id. at 1-5).
This appeal followed.
Standard of Review
District Court may enter a judgment affirming, modifying, or
reversing the final decision of the Commissioner, with or
without remanding for a rehearing. See 42 U.S.C.
§§ 405(g), 1383(c)(3). Judicial review "is
limited 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). The court reviews questions of
law de novo, but must defer to the ALJ's findings of fact
if they are supported by substantial evidence. See
id. (citing Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999)). Substantial evidence exists "'if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support [the]
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)).
"Complainants face a difficult battle in challenging the
Commissioner's determination because, under the
substantial evidence standard, the [c]ourt must uphold the
Commissioner's determination, 'even if the record
arguably could justify a different conclusion, so long as it
is supported by substantial evidence.'" Amaral
v. Comm'r of Soc. Sec., 797 F.Supp.2d 154, 159 (D.
Mass. 2010) (quoting Rodriguez Pagan v. Sec'y of
Health & Human Servs., 819 F.2d 1, 3 (1st Cir.
1987)). In applying the substantial evidence standard, the
court must be mindful that it is the province of the ALJ, and
not the courts, to determine issues of credibility, resolve
conflicts in the evidence, and draw conclusions from such
evidence. See Irlanda Ortiz, 955 F.2d at 769. That
said, the Commissioner may not ignore evidence, misapply the
law, or judge matters entrusted to experts. See
Nguyen, 172 F.3d at 35. "If the ALJ has made a
legal or factual error, the court should reverse or remand
such a decision to consider new material evidence or to apply
the correct legal standard." Boulia v. Colvin,
Case No. 15-cv-30103-KAR, 2016 WL 3882870, at *1 (D. Mass.
July 13, 2016) (citing Manso-Pizarro v. Sec'y of
Health & Human Servs., 76 F.3d 15, 16 (1st Cir.
1996); 42 U.S.C. § 405(g)).
Standard for Entitlement to Social Security Disability
Insurance Benefits and Supplemental Security Income.
order to qualify for DIB, a claimant must demonstrate that
she was disabled within the meaning of the Social Security
Act (the "Act") prior to the expiration of her
insured status. See 42 U.S.C. § 423(a)(1)(A),
(D). SSI benefits, on the other hand, require a showing of
both disability and financial need. See 42 U.S.C.
§ 1381a. Plaintiff's need, for purposes of SSI, and
insured status, for purposes of DIB, is not challenged.
defines disability, in part, 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). An individual
is considered disabled under the Act
only if [her] physical or mental impairment or impairments
are of such severity that [s]he is not only unable to do
[her] previous work but cannot, considering [her] age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy, regardless of whether such work exists in the
immediate area in which [s]he lives, or whether a specific
job vacancy exists for [her], or whether [s]he would be hired
if [s]he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). See
generally Bowen v. Yuckert, 482 U.S. 137, 146- 49
Commissioner evaluates a claimant's impairment under a
five-step sequential evaluation process set forth in
regulations promulgated under the Act. See 20 C.F.R.
§§ 404.1520(a), 416.920(a). The hearing officer
must determine: (1) whether the claimant is engaged in
substantial gainful activity; (2) whether the claimant
suffers from a severe impairment; (3) whether the impairment
meets or equals a listed impairment contained in Appendix 1
to the regulations; (4) whether the impairment prevents the
claimant from performing previous relevant work; and (5)
whether the impairment prevents the claimant from doing any
work considering the claimant's age, education, and work
experience. See id; see also Goodermote v.
Sec'y of Health & Human Servs., 690 F.2d 5, 6-7
(1st Cir. 1982) (describing the five-step process). If the
hearing officer determines at any step of the evaluation that
the claimant is or is not disabled, the analysis does not
continue to the next step. See 20 C.F.R.
§§ 404.1520, 416.920.
proceeding to steps four and five, the Commissioner must make
an assessment of the claimant's RFC, which the
Commissioner uses at step four to determine whether the
claimant can do past relevant work and at step five to
determine if the claimant can do other work. See id.
"The RFC is an administrative assessment of the extent
to which an individual's medically determinable
impairment(s), including any related symptoms, such as pain,
may cause physical or mental limitations or restrictions that
may affect his or her capacity to do work-related physical
and mental activities." Social Security Ruling
("SSR") 96-8p, 1996 WL 374187, at *2 (July 2,
1996). Put another way, "[a]n individual's RFC is
defined as 'the most you can still do despite your
limitations.'" Dias v. Colvin, 52 F.Supp.3d
270, 278 (D. Mass. 2014) (quoting 20 C.F.R. §
claimant has the burden of proof through step four of the
analysis. At step five, the Commissioner has the burden of
showing the existence of jobs in the national economy that
the claimant can perform notwithstanding impairment(s).
See Goodermote, 690 F.2d at 7.
presented the ALJ and the court with medical records that
spanned the period from 2005 through 2013. Because Plaintiff
alleged onset of disability mainly due to neck and back pain
on June 14, 2012, the date she stopped working as a medical
secretary, details of the relevant records before and after
this date will be discussed.
Medical Records: 2008 through June 13, 2012
October 29, 2008 radiology report of Plaintiff's cervical
spine (neck) showed: "straightening of the cervical
spine lordosis likely secondary to muscle spasm";
"degenerative disease and spondylosis at ¶
5/C6"; and "hypertrophy of the luschka joint at
¶ 5/C6, resulting in mild bilateral foraminal
stenosis" (A.R. at 452). A CT scan and nerve conduction
test were performed on November 7, 2008 (id. at 338,
453). The CT scan revealed "a very small centrally
herniated disc at ¶ 4/C5, C5/C6 and C6/C7" and
"partial left neural foraminal stenosis at ¶
5/C6" (id. at 453). There was "no definite
evidence of canal stenosis" and "mild left neural
foraminal stenosis" (id.). The nerve conduction
test showed left ulnar neuropathy across the elbow and
"left C6 radiculopathy with evidence of acute
denervation in the biceps and brachioradialis muscle"
(id. at 338).
November 11, 2008, Plaintiff went to the hospital complaining
of pain in her neck that began two to three weeks earlier and
pain radiating into her left arm (A.R. at 319). Her neck was
tender to palpation at ¶ 4-C6 and her range of motion
was limited (id. at 320). An MRI that was conducted
the next day showed intervertebral disc desiccation with
intervertebral disc bulges at ¶ 4-C5 and C5-C6, and left
lateral intervertebral disc herniation at ¶ 5-C6 level
"producing compression of exiting nerve roots"
(id. at 345). No myelomalacic changes were evident
January 2010, radiology studies were conducted of
Plaintiff's neck, lumbar spine (back), right wrist, and
right hand (id. at 354-57). A minimal rotoscoliotic
deviation was present on her neck, thoracic spine, and
lumbosacral spine (id. at 354-56). Straightening of
the lordosis, which suggested muscle spasm, and anterolateral
osteophytic formations were present at the C5 and C6 levels
of her cervical spine with "slight relative
narrowing" at the C5-C6 level (id. at 356). The
radiographs of her lumbosacral spine showed "some
relative straightening of the lordosis, which could represent
postural effect versus muscle spasm" (id. at
354). "Small anterolateral osteophytic formations"
were observed at multiple levels of her lumbosacral spine
along with grade 1 retrolisthesis at ¶ 4-L5 and
"very slight spondylolisthesis" at ¶ 3-L4
levels (id. at 354). "AP, lateral and carpal
tunnel projections of the right wrist show[ed] no gross bony
or joint abnormalities" (id. at 357). There was
"[n]o acute bony or joint pathology" observed in
her right hand (id. at 504). A December 2010 nerve
conduction study of Plaintiff's upper extremities
revealed a right median focal entrapment neuropathy at the
wrist, and a left ulnar focal entrapment neuropathy at the
elbow "(Cubital Tunnel Syndrome)" (id. at
349). The electromyographic study was "compatible"
with a right C6 radiculitis and a left C6 radiculopathy
January 2011, Dr. Luis J. Deliz Varela assessed Plaintiff
with pain in the low back, thoracic spine, and neck, along
with neuralgia neuritis, unspecified radiculitis, generalized
osteoarthrosis, and "[m]orbid obesity"
(id. at 351). Electroacupuncture and diet and
exercise to promote weight loss were included in Dr. Deliz
Varela's recommendations for treatment (id.).
radiology studies were conducted on Plaintiff's neck and
back in March 2011 (id. at 362-63). The MRI of her
neck showed "evidence of generalized osteophyte
formations, disc desiccation and narrowing of the
intervertebral discs spaces" and "congenital
narrowing of the canal with short pedicles and scanty
epidural fat" (id. at 362). The neck studies
also showed mild central canal stenosis secondary to a mild
posterior disc bulge at the C2-C3 level and moderate central
canal stenosis secondary to a posterior disc bulge at the
C3-C4 level (id.). "The C3-C4, C4-C5 and C5-C6
levels show large posterior disc bulges, cord compression,
canal stenoses and bilateral neural foramina stenoses"
(id.). The MRI of Plaintiff's lumbosacral spine
showed grade 1 anterolisthesis of L4 on L5 and disc
desiccation at this level, generalized osteophyte formations,
and "generalized hypertrophy of the apophyseal
joints" (id. at 363). The central and lateral
canal stenosis at the L4-L5 level was severe (id.).
At the L3-L4 level, the MRI showed mild central and moderate
lateral canal stenosis secondary to a posterior disc bulge
and hypertrophic apophyseal joints (id.).
April 2011, Roberto Leon Perez, M.D. examined Plaintiff due
to complaints of bilateral hand swelling (id. at
469). Dr. Perez reported that: Plaintiff's gait and
station were normal; her upper extremities' ranges of
motion were intact; and she had fairly good range of motion
in her back without spasm, but she experienced pain on
flexion and hyperextension (id.). There was no
evidence of "focal weakness, loss of sensation or
incoordination" (id.). Dr. Perez diagnosed
Plaintiff with bilateral and ulnar nerve entrapment at the
elbow and recommended a neurosurgical evaluation
(id.). In August 2011, Hector Cortes Santos, M.D.
evaluated the electromyography of Plaintiff's back as
demonstrating evidence of a chronic left L5 radiculopathy
(id. at 370).
2012, approximately one month before Plaintiff left Puerto
Rico, she reported to the Caribbean Medical and
Rehabilitation Corp. that her symptoms had not changed
(id. at 365). According to Plaintiff, her pain
ranged from two to nine on a scale of ten and limited her
range of motion in her neck and back (id.).
Medical Records: June 14, 2012 to January 22, 2014
first visited Northgate Medical P.C. in Springfield
("Northgate") on July 12, 2012 (id. at
543). She returned on August 2, 2012 to follow up for the
pain in her neck and lumbar spine (id. at 542). She
weighed 178 with a ...