United States District Court, D. Massachusetts
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 &
KATHERINE A. ROBERTSON United States Magistrate Judge.
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.
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.
Standard for Entitlement to Social Security Disability
order to qualify for SSI and SSDI, a claimant must
demonstrate that he is disabled within the meaning of the
Social Security Act. 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).
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.
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.
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.
Standard of Review
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.
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).
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