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.
18 & 26)
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 Brenda Noemi
Torres-Martinez ("Plaintiff") asserts that the
Commissioner's decision denying her such benefits
--memorialized in a June 27, 2014 decision of an
administrative law judge ("ALJ") -- is not
supported by substantial evidence. Specifically, Plaintiff
alleges that the ALJ erred by failing to assign controlling
weight to a physician's assistant's opinion of her
left shoulder impairment. Plaintiff has moved for judgment on
the pleadings (Dkt. No. 18), while the Commissioner has moved
to affirm (Dkt. No. 26).
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 for judgment on the pleadings.
applied for DIB and SSI on June 23, 2009 alleging an onset of
disability on April 1, 2008 (Administrative Record
("A.R.") at 214). In her applications for DIB and
SSI, Plaintiff alleged that she was disabled due to
discogenic and degenerative back disorders (id. at
207, 393). The applications were denied initially and upon
reconsideration (id.). Following a hearing on June
10, 2011, the ALJ issued his decision on April 27, 2012
finding Plaintiff was not disabled (id. at 142,
223). On April 30, 2013, the Appeals Council remanded the
case to the ALJ for his consideration of Plaintiff's
physical impairments based on "[n]ew and material
evidence" showing Plaintiff underwent arthroscopic
repair of her left shoulder on December 12, 2012
(id. at 184, 230). The ALJ conducted a second
hearing on January 17, 2014 and issued his decision on June
27, 2014 finding Plaintiff was not disabled (id. at
135, 182). The Appeals Counsel denied review (id. at
1-7), and this appeal followed.
completed the twelfth grade (id. at 147). She was
employed full-time by Costco Wholesale ("Costco")
for about twelve years as a cashier and shelf stocker
(id. at 148, 386-87). In addition, she worked as an
aide at a school (id. at 149). She stopped working
on April 1, 2008 when she was 40 years old because she was
injured while working at Costco and Costco was not able to
accommodate the lifting restrictions recommended by her
physician (id. at 149-51, 348, 386).
only challenge to the ALJ's decision is based on his
failure to give controlling weight to the opinion of
Physician's Assistant ("PA") Mark Dutille of
New England Orthopedic Surgeons ("NEOS") regarding
Plaintiff's limitations after arthroscopic surgery on her
left shoulder on December 12, 2012 (Dkt. No. 19 at 12-19).
Consequently, details of the pertinent medical records,
particularly those of NEOS, will be included in the
discussion of Plaintiff's objections.
The ALJ Hearings
June 10, 2011 Hearing Plaintiff and independent vocational
expert ("VE") James Parker testified before the ALJ
at the first hearing on June 10, 2011 (A.R. at 142).
Plaintiff testified that she underwent surgery on her right
shoulder in June or July 2006 (id. at 154). Her
shoulder was painful after the surgery and medication did not
provide relief for her post-surgical pain (id. at
154, 157-58). Because she used her left arm to compensate for
the pain in her right arm, she experienced pins and needles,
numbness, and tingling in her left arm and hand, which made
it difficult to pick up and hold objects with her left hand,
although she was right-handed (id. at 154-56). She
also had trouble reaching overhead and getting dressed
(id. at 159). However, she drove, cooked, cleaned,
shopped, and attended church services three times a week
(id. at 163-65).
first posed the following scenario to the VE for his opinion
on whether a hypothetical person could perform
Plaintiff's past work as a cashier or any job that
existed in the national economy:
[An individual who is] limit[ed] . . . to light work
requiring no more than an occasional need to bend, twist,
crouch, crawl or kneel. The individual's right dominant
upper extremity should be limited to no more than occasional
overhead reaching, while the left non-dominant upper
extremity would be limited to frequent, but less than
constant[, ] overhead reaching. Also, due to an overuse
problem, the left non-dominant hand will be limited to
frequent, but less than constant[, ] fine handling.
This individual should not be exposed to concentrated doses
of dusts, fumes, strong odors, temperature or humidity
at 169-70). In the second hypothetical, the ALJ added the
individual's ability to sit for approximately one-third
of the day, as needed (id. at 170). The VE indicated
that an individual with those limitations would be able
perform Plaintiff's past work as a sedentary cashier, and
would also be capable of working as a recreation (health
club) attendant and a companion (id. at 172-74,
222). However, if unskilled work was added to the light work
hypothetical, only the recreation attendant position would be
available (id. at 175). If an option to sit or stand
at will was substituted for the option to sit for one-third
of the day, the following unskilled jobs would be available
in the national and regional economy: sedentary cashier; mall
information clerk; answering service operator; and production
sorter (id. at 172-75). No jobs would be available
for an individual who, three times per month, was late to
work, or had to leave early, or was absent (id. at
ordered Plaintiff's examination by orthopedic and
psychological consultants and made his disability
determination after receiving their reports (id. at
176-77). The ALJ found that Plaintiff could perform her past
relevant work as a cashier and, consequently, was not
disabled (id. at 222).
January 17, 2014 Hearing
Plaintiff and VE Larry Takki testified at the second hearing
on January 17, 2014 (id. at 117, 182). According to
Plaintiff, pain in her upper and lower back, neck, shoulders,
and arms, and numbness in her right leg and toes made
activities challenging (id. at 188-89). After the
June 2011 hearing, she underwent surgery on her left
shoulder, which was successful (id. at 190- 91).
Although she fell twice after the procedure, she attended
physical therapy and her shoulder was "feeling
fine" but her neck began to hurt (id. at 191,
197). She described the constant pain in her neck as
throbbing and like pins and needles (id. at 189). It
traveled to her shoulders and her upper back and, sometimes,
to both hands (id. at 190). Her left hand was
"constantly getting numb" (id.). She slept
only three to four hours at night because the pain interfered
with her sleep (id. at 195). Cold exacerbated her
discomfort (id. at 193). Plaintiff refused cortisone
shots because pain medication did not provide relief
(id. at 190, 192, 197). Her physician indicated that
her neck did not require surgery (id. at 190).
testified that she could sit for "maybe minutes, "
but could walk about two blocks (id. at 192-93). She
was able to clean, vacuum, cook, ...