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Torres-Martinez v. Colvin

United States District Court, D. Massachusetts

March 21, 2017

BRENDA NOEMI TORRES-MARTINEZ, 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. 18 & 26)

          KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE.

         Before 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).

         The 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.

         I. Procedural Background

         Plaintiff 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.

         II. Factual Background

         Plaintiff 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).

         A. Medical Records

         Plaintiff's 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.

         B. The ALJ Hearings

         1. The 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).

         The ALJ 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 extremes.

         (id. 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 176).

         The ALJ 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).

         2. The 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).

         Plaintiff 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, ...


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