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Kent v. Berryhill

United States District Court, D. Massachusetts

March 15, 2017

BRIAN G. KENT, Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Respondent.


          Indira Talwani, United States District Judge

         Petitioner Brian G. Kent seeks judicial review of a final decision by the Acting Commissioner of Social Security (“Commissioner”),[1] denying his applications for Supplemental Security Income (“SSI”) and Social Security Disability Insurance (“SSDI”). The Commissioner has filed a cross-motion to affirm. In light of an error made at Step 4 of the sequential evaluation process, the Commissioner’s Motion to Affirm the Commissioner’s Decision [#29] is DENIED. Kent’s Motion for Order Reversing the Commissioner’s Decision [#24] is ALLOWED as to a remand, and the case is hereby REMANDED for further proceedings consistent with this order.

         I. Background

         Kent injured his back as a child and sustained further injuries in an automobile accident years ago. For more than a decade, he has suffered from joint arthritis and chronic pain, and he reports difficulty coping with these conditions and the limitations they impose on his life. Kent, whose educational background is in computer-aided design and manufacturing technologies, has held many jobs throughout his life, including work as a sales associate at an electronics store, a software tester, a campground caretaker, a driver, and a technical consultant. However, he contends that, as a result of chronic pain, he has worked only intermittently since 2008 and has not been able to work at all since 2010.

         Kent applied for SSDI in July 20, 2012, and filed his SSI application on August 7, 2012. Citing an onset date of March 1, 2008, he alleged disability due to chronic lower back trauma and joint arthritis. Kent further reported symptoms of depression, difficulty concentrating, and memory problems triggered by chronic pain. His applications were denied both initially and upon reconsideration. A hearing was held before an Administrative Law Judge (“ALJ”) on December 19, 2013.[2] In a written decision issued on January 31, 2014, the ALJ found that Kent is not disabled under the Social Security Act and thus is ineligible for SSI and SSDI benefits. On March 29, 2015, the Appeals Council denied Kent’s request for review, effectively adopting the decision of the ALJ as the final decision of the Commissioner. Kent filed the instant action on June 3, 2015.

         A. Medical Evidence

         1. Lower Back Trauma, Joint Arthritis, and Obesity

         Medical records provided to the Social Security Administration (“SSA”) divulge a history of lower back pain spanning many years and a course of treatment for pain in his back, shoulders, and joints. Radiological imaging reports reflect degenerative disc disease at the L4-L5 and L5-S1 levels. Based on an MRI performed in 2012, Kent was diagnosed with dextroconvex lumbar scoliosis, moderate lumbar spondylosis with small posterior L2-3 through L5-S1 intervertebral disc protrusions, and moderate L2-3 through L5-S1 articular facet joint degenerative hypertrophy with mild to moderate narrowing of lumbar neural foramina. Treatment has included physical therapy and periodic use of anti-inflammatory medication. Past epidural injections did not afford “significant relief.” Although Kent had shoulder surgery in 2000, there have been no surgical interventions in recent years.

         Records from Kent’s treating physicians report normal strength, sensation, and reflexes, and moderate loss of range of motion. Most records describe Kent as having a normal gait, although an orthopedic physician noted “an antalgic gait” at a June 2013 office visit. Notes from physical examinations in July 2012 and September 2013 do not indicate joint tenderness, although an orthopedic physician wrote in November 2012 that an “[e]xamination of the right shoulder reveals very mild Neer and Hawkins impingement findings, tenderness over the AC joint, and pain with cross-body testing.”

         Kent’s medical records note exogenous obesity, with a body-mass index of approximately forty. He does not have cardiovascular disease or experience shortness of breath-both commonly associated with obesity. See Titles II & XVI: Evaluation of Obesity, SSR 02-1P (S.S.A. Sept. 12, 2002). However, medical records indicate borderline hypertension, elevated cholesterol, hyperglycemia, and elevated blood pressure.

         The medical records provided to the SSA do not contain notations that Kent is unable to work, nor do they include recommendations for disability benefits.[3] However, starting in 2012, various medical records refer to him in passing as “disabled” or as having a “disability.” For instance, Kent’s orthopedic physician noted in August 2012 that he “currently has severe back pain and degenerative disc disease and he has a disability.”

         2. Mental Health

         Documentary evidence of Kent’s mental health is comprised of treatment records from his primary care physicians, a December 2012 report of a psychological evaluation conducted in conjunction with a MassHealth application, and a consultative evaluation report from a psychologist retained by the SSA. Records from Kent’s primary care office visits in 2013 describe normal mood and mental functioning. Specifically, physical examination records from March, July, and September 2013 noted that Kent “denie[d] sleep problems, mood swings, depressed mood, confusion, suicidal thoughts, memory loss, increased irritability/anger, anxiety/panic attacks, difficulty concentrating, hallucinations, excessive energy, [and] decreased energy.”

         The psychologist who evaluated Kent in December 2012 in connection with his MassHealth application noted that

[h]e seems to be depressed, but it is sort of an interesting type of existential angst or depression and not really [one] that has specific symptoms, other than the fact that clearly he says that he does not have motivation, no energy[,] and that he is sad . . . . He does not endorse any particular type of anxiety syndrome[.]

         He noted that Kent had difficulty reading and “subtract[ing] serial 7s correctly.” The psychologist provided an Axis I diagnosis of moderate depression and noted on Axis IV that Kent had a “[q]uite significant character disorder” and “[s]ome depression secondary really to the character disorder and to his physical problems.” He assigned him a Global Assessment of Functioning (“GAF”) score of forty-eight. The psychologist who examined Kent one week later at the behest of the SSA reached a different conclusion-diagnosing him with recurrent and moderate Major Depressive Disorder and Generalized Anxiety Disorder and reporting a GAF score of sixty-five.

         B. Kent’s Testimony

         Kent, who was fifty-three years old at the time of the hearing before the ALJ, testified that he experiences chronic pain in his lower back and osteoarthritis in his ankles, knees, hands, and shoulders. He reported that the pain has become “progressively worse” with age. On a scale from one to ten, with ten being the worst, Kent stated that his pain ranges from a four to an eight, with infrequent acute pain. He testified that “[s]ometimes the pain interferes with [his] concentration and [his] focus” and that frequent movement causes fatigue. He explained that he has difficulty standing still for more than ten to fifteen minutes or walking for more than fifteen to thirty minutes. He testified that he would be unable to “get through an eight-hour workday by alternating [between] sitting and standing.”

         Kent treats his pain with anti-inflammatories and physical therapy and is not undergoing mental health treatment or taking psychiatric medications. He takes a prescription medication for high cholesterol. Kent testified that he drives, often joins a friend for walks, does laundry at a laundromat, manages his finances, uses a computer, performs maintenance work on his van, and periodically attends public community events, although he occasionally experiences difficulty engaging in some of these activities.

         II. Standard of Review

         Federal courts play a limited role in reviewing a Social Security claim. Although courts consider questions of law de novo, Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001), the factual findings made by the Commissioner are “conclusive” when “supported by substantial evidence,” 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.” Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). Upon review, “issues of credibility and the drawing of permissible inference[s] from evidentiary facts” lie squarely within the domain of the ALJ, as the Commissioner’s designee. Id. at 222 (quoting Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965) (internal brackets omitted); see also Seavey, 276 F.3d at 10. Similarly, “the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [the ALJ], not for the doctors or for the courts.” Rodriguez, 647 F.2d at 222. “The ALJ is not required to mention every piece of evidence but must provide an ‘accurate and logical bridge’ between the evidence and his conclusions.” Knox v. Astrue, 327 F. App’x 652, 656 (7th Cir. 2009) (quoting Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008)). Consequently, this court may disturb the Commissioner’s final decision only if it was “derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).

         III. Discussion

         A claimant is disabled for the purposes of SSI and SSDI if he or she is unable “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 [twelve (12)] months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also id. §§ 423(a)(1), 1381a, 1382. More precisely, the claimant qualifies as disabled

if his physical or mental impairment or impairments are of such severity that he is not only able 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

Id. § 423(d)(2)(A), 1382c(a)(3)(B). The ALJ, as the Commissioner’s designee, must follow a five-step sequential evaluation process in determining whether the claimant is disabled. 20 C.F.R. ...

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