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Hebert v. Colvin

United States District Court, D. Massachusetts

March 17, 2017

MARQUES ISIAHA HEBERT, Plaintiff,
v.
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. 13 & 23)

          KATHERINE A. ROBERTSON United States Magistrate Judge.

         I. Introduction

         On November 10, 2015, plaintiff Marques Isiaha Hebert (“Plaintiff”) filed a complaint pursuant to 42 U.S.C. § 405(g) against the Acting Commissioner of the Social Security Administration (“Commissioner”), appealing the denial of his claims for Supplemental Security Income (“SSI”) and Social Security Disability Insurance (“SSDI”). Plaintiff asserts that the Commissioner's decision denying him such benefits - memorialized in an August 26, 2013 decision by an administrative law judge (“ALJ”) - is in error. Specifically, Plaintiff alleges that the ALJ's conclusion as to Plaintiff's Residual Functional Capacity (“RFC”) is not supported by substantial evidence and that the ALJ erred by not adopting a treating source's opinion when assessing the Plaintiff's RFC. Plaintiff has moved for judgment on the pleadings requesting that the Commissioner's decision be reversed, or, in the alternative, remanded for further proceedings (Dkt. No. 13). The Commissioner has moved for an order affirming the decision of the Commissioner (Dkt. No. 23). The parties have consented to this court's jurisdiction (Dkt. No. 16). See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the following reasons, the court will deny Plaintiff's motion and allow the Commissioner's motion.

         II. Procedural Background

         On January 25, 2008, Plaintiff filed applications for SSI and SSDI, alleging an October 1, 2005 onset of disability (Administrative Record (“A.R.”) at 7, 533-540). Plaintiff's applications were denied initially and on reconsideration (id. at 61-64). Plaintiff requested a hearing before an ALJ, and one was held on January 22, 2010 (id. at 77-83, 436-72). Following the hearing, the ALJ issued a decision on May 28, 2010, finding that Plaintiff was not disabled and denying Plaintiff's claims (id. at 4-19). The Decision Review Board selected the decision for review, but did not complete its review within the allotted time, and the ALJ's decision became the final decision of the Commissioner (id. at 1-3). Plaintiff then sought judicial review, and, on June 3, 2011, another session of this court issued an order reversing the ALJ's decision, remanding the case for further administrative proceedings, and entering judgment for Plaintiff (id. at 473-477). Following a new hearing in front of the same ALJ on June 21, 2013, the ALJ issued a new decision on August 26, 2013, again finding that Plaintiff was not disabled and denying Plaintiff's claims (id. at 390-408, 409-435). The Appeals Council denied review on September 10, 2015, and the ALJ's decision became the final decision of the Commissioner (id. at 379-383). This appeal followed.

         III. Legal Standards

         A. Standard for Entitlement to Social Security Disability Insurance

         In order to qualify for SSI and SSDI, a claimant must demonstrate that he is disabled within the meaning of the Social Security Act.[1] A claimant is disabled for purposes of SSI and SSDI if he “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 months.” 42 U.S.C. § 1382c(a)(3)(A); 42 U.S.C. § 423(d)(1)(A). A claimant is unable to engage in any substantial gainful activity when he “is not only unable 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.” 42 U.S.C. § 1382c(a)(3)(B); 42 U.S.C. § 423(d)(2)(A).

         The Commissioner evaluates a claimant's impairment under a five-step sequential evaluation process set forth in the regulations promulgated under each statute. See 20 C.F.R. § 416.920; 20 C.F.R. § 404.1520. 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. 20 C.F.R. § 416.920; 20 C.F.R. § 404.1520.

         Before proceeding to steps four and five, the Commissioner must make an assessment of the claimant's “residual functional capacity” (“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 adjust to other work. See id. “RFC is what an individual can still do despite his or her limitations. 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 374184, at *2 (July 2, 1996). The RFC assessment addresses both the remaining exertional and nonexertional capacities of the claimant. Id. at *5.

Exertional capacity addresses an individual's limitations and restrictions of physical strength and defines the individual's remaining abilities to perform each of seven strength demands: Sitting, standing, walking, lifting, carrying, pushing, and pulling. ….
Nonexertional capacity considers all work-related limitations and restrictions that do not depend on an individual's physical strength, i.e. all physical limitations and restrictions that are not reflected in the seven strength demands, and mental limitations and restrictions. It assesses an individual's abilities to perform physical activities such as postural (e.g., stooping, climbing), manipulative (e.g., reaching, handling), visual (seeing), communicative (hearing, speaking), and mental (e.g., understanding and remembering instructions and responding appropriately to supervision). In addition to these activities, it also considers the ability to tolerate various environmental factors (e.g., tolerance of temperature extremes).

Id. at *5-6.

         The claimant has the burden of proof through step four of the analysis, Goodermote, 690 F.2d at 7, including the burden to demonstrate RFC. Flaherty v. Astrue, 2013 WL 4784419, at *9 (D. Mass. Sept. 5, 2013) (citing Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). At step five, the Commissioner has the burden of showing the existence of other jobs in the national economy that the claimant can nonetheless perform. Goodermote, 690 F.2d at 7.

         B. Standard of Review

         The District Court may enter a judgment affirming, modifying, or reversing the final decision of the Commissioner, with or without remanding for rehearing. See 42 U.S.C. § 1383(c)(3); 42 U.S.C. § 405(g). 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. 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)). 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. Id. So long as the substantial evidence standard is met, the ALJ's factual findings are conclusive even if the record “arguably could support a different conclusion.” Id. at 770. That said, the Commissioner may not ignore evidence, misapply the law, or judge matters entrusted to experts. Nguyen, 172 F.3d at 35.

         IV. Discussion

         A. The Evidence

         1. Plaintiff's Application

         Plaintiff was 20 years old as of his alleged onset date, and he claimed in his applications that he was disabled as a result of having a “[t]racheotomy-airway not big enough to sustain life” (A.R. at 153). At the two hearings on his application, Plaintiff claimed disability due to his tracheotomy, as well as asthma, learning disabilities, and left eye vision impairment (id. at 409-35; 436-72).

         2. Medical Records

         Plaintiff has had subglottic stenosis, a narrowing of the lower portion of his larynx, since birth and had a tracheotomy for the first twenty years of his life (id. at 203-09). In August 2005, at age 20 and two months before his alleged onset of disability, Plaintiff underwent laryngeal tracheal reconstruction with decannulation, or removal of the tracheotomy tube, at Boston Children's Hospital (“BCH”), due to improved respiratory status (id.). Plaintiff was seen pre-procedure, on January 3, 2005, at Sumner Pediatrics and was found to have no allergic/immunologic, eye, ear, nose, throat, cardiovascular, respiratory, gastrointestinal, genitourinary, musculoskeletal, neurologic, hematologic, endocrine, or psychiatric problems (id. at 598-600). Plaintiff presented for his first post-operative visit at BCH's otolaryngology clinic on December 14, 2005, at which time he was “doing well” and reportedly working at a job as a mail handler “with no difficulty” (id.). He was, however, experiencing inspiratory and expiratory stridor, or wheezing (id.). Approximately one week later, on December 20, 2005, Plaintiff presented at the clinic with continued stridor and dyspnea, or shortness of breath, and he was scheduled to undergo a diagnostic laryngoscopy at BCH two days later (id.). During the ...


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