United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION
TO AFFIRM THE DECISION OF THE COMMISSIONER (DOCKET ENTRY #
22); PLAINTTIFF'S MOTION TO REVERSE OR REMAND THE
DECISION OF THE COMMISSIONER (DOCKET ENTRY # 17)
MARIANNE B. BOWLER, United States Magistrate Judge
before this court are cross motions by the parties, plaintiff
Robert Glass (“plaintiff”) and defendant Carolyn
W. Colvin (“Commissioner”), Acting Commissioner
of the Social Security Administration. (Docket Entry # 22).
Plaintiff seeks to reverse or remand the Commissioner's
final decision denying him disability benefits. (Docket Entry
# 17). The Commissioner moves for an order to affirm the
final decision pursuant to 42 U.S.C. § 405(g). (Docket
Entry # 22). After conducting a hearing on January 19, 2017,
this court took the motions (Docket Entry ## 17 & 22)
16, 2012, plaintiff filed a Title XVI application for
supplemental security income (“SSI”) alleging
that his disability began on August 1, 2010 due to lumbar
spinal injury, cervical spinal injury, bone spurs and sleep
apnea. (Docket Entry # 11, Tr. 180). He identified additional
conditions in an adult disability report two months later
including plantar fasciitis, arthritis, sleep apnea,
depression, anxiety, sciatic nerve pain and right arm
tendonitis. (Docket Entry # 11, Tr. 230).
December 17, 2012, the Social Security Administration
(“SSA”) denied plaintiff's claim. (Docket
Entry # 11, Tr. 76-91, 115-117). The claim was denied again
on reconsideration on October 15, 2013. (Docket Entry # 11,
Tr. 89, 110). On December 9, 2013, plaintiff filed a request
for a hearing. (Docket Entry # 11, Tr. 121-123). In his brief
to the ALJ, plaintiff identified various impairments
including plantar fasciitis. (Docket Entry # 11, Tr. 172). A
hearing was held on November 19, 2014 before an
Administrative Law Judge (“ALJ”). (Docket Entry #
11, Tr. 34). The ALJ denied plaintiff's claim on January
13, 2015. (Docket Entry # 11, Tr. 11-33).
April 1, 2016, the appeals council denied plaintiff's
request for review thereby affirming the ALJ's decision
as the final decision. (Docket Entry # 11, Tr. 1-6).
Plaintiff filed this action against the Commissioner pursuant
to 42 U.S.C. § 1383(c)(3).
Plaintiff's Background and Medical History
was 47 years old on the date the application was filed.
(Docket Entry # 11, Tr. 26). He had at least a high school
education. (Docket Entry # 11, Tr. 26). On October 14, 2009,
Stanley Leitzes, M.D. (“Dr. Leitzes”) provided
plaintiff with an injection of Depo-Medrol for plantar
fasciitis. (Docket Entry # 11, Tr. 312). Dr. Leitzes'
notes state that plaintiff sought “some alteration of
his work day being on his feet” and that Dr. Leitzes
“will alter that from an 8 to a 6 hour work day at this
time and ascertain if that will help.” (Docket Entry #
II, Tr. 313). On December 21, 2009, plaintiff reported that
his plantar fasciitis continued to cause “discomfort
during the day.” (Docket Entry # 11, Tr. 310). On August 5,
2010, Arthur Carriere, M.D. (“Dr. Carriere”)
administered a steroid injection into plaintiff's left
heel and suggested another injection on October 5, 2010.
(Docket Entry # 11, Tr. 412-414).
February 15, 2011, an MRI revealed disc osteophyte complexes
at ¶ 3-4, C4-5, and C5-6, with neural foraminal stenosis
at each level, and cervical kyphosis at ¶ 6-7 with a
large anterior osteophyte. (Docket Entry # 11, Tr. 404-405).
Plaintiff completed a depression assessment on March 10, 2011
and reported having little interest or pleasure in doing
things, feeling down, depression, sleeping issues, fatigue,
an inability to concentrate and a feeling that he was a
failure “nearly every day.” (Docket Entry # 11,
March 22, 2011, Dr. Carriere injected plaintiff's left
foot with Depo-Medrol and Xylocaine. (Docket Entry # 11, Tr.
315). Dr. Carriere's notes reflect that plaintiff had a
“good response” to the prior “cortisone
injection.” (Docket Entry # 11, Tr. 315).
August 4, 2011, plaintiff underwent a physical examination
with Lucia Dias-Hoff, M.D. (“Dr. Dias-Hoff”) on
behalf of the University of Massachusetts Disability
Evaluation Services (“UMDES”). (Docket Entry #
11, Tr. 320). During that exam, he reported pain in his neck,
back and left foot. (Docket Entry # 11, Tr. 320).
Additionally, plaintiff disclosed that when his neck is
“very painful[, ] he has to lie down” and pain
bilaterally radiates down his arms. (Docket Entry # 11, Tr.
320). Dr. Dias-Hoff noted plaintiff had decreased range of
motion in the cervical spine, tenderness in the left heel and
atrophy in the left leg and noted that “[h]e seemed to
have low back pain when sitting on the exam table.”
(Docket Entry # 11, Tr. 321).
September 1, 2011, plaintiff received facet injections in his
neck with steroids and sterile water at ¶ 3-4, C4-5 and
C5-6. (Docket Entry # 11, Tr. 486). On October 27, 2011,
plaintiff reported neck pain radiating through his left arm,
foot pain and difficulty sleeping to Janet Encarnacion, M.D.
(“Dr. Encarnacion”), his primary care doctor.
(Docket Entry # 11, Tr. 391). On November 21, 2011, plaintiff
underwent medial branch block injections of Depo-Medrol and
1/2% bupivacaine at ¶ 3, C4, C5 and C6. (Docket Entry #
11, Tr. 484). On January 5, 2012, plaintiff still complained
of neck pain and stated that he was experiencing numbness in
his hands during a visit with Dr. Encarnacion. (Docket Entry
# 11, Tr. 386).
February 1, 2012, Mark Chernin, M.D. (“Dr.
Chernin”) administered injections to plaintiff's
neck at ¶ 3-4, C4-5 and C5-6. (Docket Entry # 11, Tr.
480). On May 29, 2012, plaintiff reported that his neck pain
persisted and he was given cervical epidural steroid
injections on May 29, 2012. (Docket Entry # 11, Tr. 478).
16, 2012, during a visit to Scott Aronson, D.P.M. (“Dr.
Aronson”), a podiatrist, plaintiff complained of left
heel pain that he reported had been present for years.
(Docket Entry # 11, Tr. 234, 334). He claimed his pain was an
eight on a ten-point scale, that he stood at work and that he
had received cortisone injections, the most recent being six
months prior. (Docket Entry # 11, Tr. 334). Upon examination,
Dr. Aronson assessed plaintiff as experiencing plantar
faciitis in the left foot. (Docket Entry # 11, Tr. 334). Dr.
Aronson identified a number of treatment options and
recommended that plaintiff wear soft, over-the-counter
“insoles, heel cups and cushions for use in [a]
supportive shoe.” (Docket Entry # 11, Tr. 335). Dr.
Aronson also discussed the option of custom molded foot
orthotics and provided plaintiff with written instructions
regarding plantar faciitis including stretching exercises for
his calf muscle and hamstring twice a day. (Docket Entry #
11, Tr. 335). In addition, Dr. Aronson prescribed a night
splint for plaintiff's left foot to use on a daily basis.
He also “[d]iscussed the fact that conservative care
options usually decrease symptoms 80-90% in 6 months.”
(Docket Entry # 11, Tr. 335).
October 2, 2012, during another a visit to Dr. Aronson,
plaintiff again reported left heel plain and described the
pain as an eight on a ten-point scale. (Docket Entry # 11,
Tr. 336). Plaintiff reported that a July 16, 2012 injection
“helped a little” and that he had “not had
time to get a night splint.” (Docket Entry # 11, Tr.
336). Plaintiff requested “a cortisone injection”
and Dr. Aronson administered an injection of Lidocaine and
Depo-Medrol. (Docket Entry # 11, Tr. 336). Dr. Aronson's
notes show “no improvement” of the plantar
fasciitis. (Docket Entry # 11, Tr. 336). He
“recommended continued use of current treatment and
at-home instructions for the next 3 months time at which
point this condition should fully subside.” (Docket
Entry # 11, Tr. 336).
October 16 and November 7, 2012, plaintiff underwent cervical
epidural steroid injections by Ashraf Farid, M.D. (“Dr.
Farid”) at Brockton Hospital. (Docket Entry # 11, Tr.
473, 476). On November 15, 2012, state agency physician
Theresa Kriston, M.D. (“Dr. Kriston”) reviewed
the record including plaintiff's complaints of plantar
fasciitis. (Docket Entry # 11, Tr. 84-86). She concluded that
plaintiff was capable of occasionally lifting and/or carrying
up to 20 pounds; frequently lifting and/or carrying up to ten
pounds; standing for four hours in a workday; sitting for
about six hours in a work day; changing position every five
minutes; and occasionally pushing and pulling due to left
“plantar fasciitis/heel pain.” (Docket Entry #
11, Tr. 84-86). State agency physician Phyllis Sandell, M.D.
(“Dr. Sandell”) reiterated these findings in
April 3, 2013. (Docket Entry # 11, Tr. 104-106).
December 6, 2012, plaintiff underwent a consultative
examination with John Hennessy, Ph.D. (“Dr.
Hennessy”) and reported depression secondary to his
medical conditions. (Docket Entry # 11, Tr. 341-345). During
that visit, plaintiff reported poor concentration, difficulty
sleeping, low energy and decreased motivation. (Docket Entry
# 11, Tr. 341-45). Additionally, Dr. Hennessy noted that
plaintiff's “coping ability indicates he gets
easily overwhelmed.” (Docket Entry # 11, Tr. 344).
January 24, 2013, Dr. Encarnacion expressed difficulty
treating plaintiff's plantar fasciitis because plaintiff
was unable to afford splints not covered by insurance.
(Docket Entry # 11, Tr. 358). She described plaintiff's
foot pain as “stable.” (Docket Entry # 11, Tr.
358). During a February 14, 2013 medication check with Dr.
Encarnacion, she urged plaintiff to see a psychiatric
counselor “for depression/anxiety.” (Docket Entry
# 11, Tr. 357). Dr. Encarnacion's notes reflect that
plaintiff was “currently undergoing treatment by
podiatry” for his plantar fasciitis. (Docket Entry #
11, Tr. 356). On March 14, 2013, plaintiff reported right
elbow and forearm pain, which reached ten on a ten-point
scale with movement. (Docket Entry # 11, Tr. 354). At that
appointment, the physician assistant assessed that plaintiff
suffered from right lateral epicondylitis. (Docket Entry #
11, Tr. 355).
March 2013, plaintiff's urine test was positive for
cocaine. (Docket Entry # 11, Tr. 456). In April 2013,
plaintiff went on vacation to Colorado. (Docket Entry # 11,
Tr. 461). On May 28, 2013, plaintiff saw Molly Ciri, Ph.D.
(“Dr. Ciri”). (Docket Entry # 11, Tr. 437). Dr.
Ciri's notes reflect that plaintiff's “[a]ffect
[was] marked by significant anxiety and depression” and
he was diagnosed with a: (1) “Mood Disorder Due to
Head, Neck and Back Injury with a Major Depressive Like
Episode”; (2) “Generalized Anxiety
Disorder”; and (3) “Panic Disorder with
Agoraphobia.” (Docket Entry # 11, Tr. 439). Dr. Ciri
determined that plaintiff had a GAF score of 45. (Docket
Entry # 11, Tr. 439). Dr. Ciri's notes state that:
Robert Glass is a 48-year-old man who is presenting evidence
of memory loss and difficulties with remembering and
maintaining previous acquired skills . . . Robert was unable
to remember three words, spell the word “world”
backwards, or count by Serial Threes . . . He is presenting
with significant depression and anxiety as well as with
apparent memory deficits. It is apparent that he would have
difficulties carrying out physical tasks that require him to
sit, stand, [or] walk . . . His ability to remember and carry
out instructions appears to be compromised by memory
deficits. Robert's ability to respond appropriately to
supervision, coworkers, and work pressures in a work setting
is negatively impacted by his current emotional status.
(Docket Entry # 11, Tr. 440).
2013, plaintiff went on vacation to Las Vegas. (Docket Entry
# 11, Tr. 456). At a July 30, 2013 visit with Dr. Farid,
plaintiff again complained of left foot pain. Plaintiff
reported that the pain medications “help[ed] relieve
his pain” and improved his mobility and activity level.
Dr Farid's impression was that plaintiff had
“cervical facet joint pain” and “left foot
plantar fasciitis.” (Docket Entry # 11, Tr. 456).
a subsequent medication management visit at a pain management
clinic at Brockton Hospital with Schahid A. Rawoof, M.D.
(“Dr. Rawoof”), Dr. Rawoof noted three
“documented episodes of inappropriate urine
specimens” and plaintiff's “repeated
inability to bring his medications for [a] pill count.”
(Docket Entry # 11, Tr. 457). Dr. Rawoof's outpatient
report listed plaintiff's “pain-related
considerations, ” including plantar fasciitis. (Docket
Entry # 11, Tr. 457).
August 9, 2013, plaintiff reported that the pain in his heel
was increasing. (Docket Entry # 11, Tr. 453). Dr. Rawoof
opined that “ongoing functional benefit with opioids
though efficacy appears to be waning, likely due to
tolerance.” (Docket Entry # 11, Tr. 453). At that
appointment, plaintiff identified “rest” and
“lying down” as ameliorative activities and
alternative medications, such as Methadone, Morphine Sulfate
and Fentanyl, were discussed. (Docket Entry # 11, Tr.
453-454). Dr. Rawoof reported he would consider this in the
fall as plaintiff was currently doing a lot of driving.
(Docket Entry # 11, Tr. 453). Plaintiff reported that he had
been helping a friend with some painting and, on occasion,
“takes more medication than prescribed” which is
“generally associated with overactivity . . ..”
(Docket Entry # 11, Tr. 453).
3, 2014, Dr. Encarnacion noted that plaintiff “has
chronic back pain with degenerative disk disease, chronic
pain from lateral epicondylitis and plantar fasciitis.”
(Docket Entry # 11, Tr. 498). The main reason for the visit
was “to fill out disability forms.” (Docket Entry
# 11, Tr. 498). At that appointment, plaintiff reported
depression and anxiety were preventing him from working.
(Docket Entry # 11, Tr. 498).
October 16, 2014, for purposes of the Emergency Aid to
Elderly, Disabled, and Children Program, UMDES found that
plaintiff was suffering from a disability that was expected
to last through September 16, 2015. (Docket Entry # 11, Tr.
511). On October 22, 2014, during a visit to May Louie, M.D.
plaintiff reported “constant paresthesia in all ten
fingers” and an EMG revealed “moderate left
median mononeuropathy at/or distal to the wrist.”
(Docket Entry # 11, Tr. 503).
November 17, 2014, during a visit to Dr. Encarnacion,
plaintiff complained of back, neck and right knee pain.
(Docket Entry # 11, Tr. 512). Dr. Encarnacion's notes
from that appointment reflect that plaintiff was suffering
from tenderness in the cervical region and decreased range of
motion. (Docket Entry # 11, Tr. 513). On November 24, 2014,
neck X-rays reported by Raghu Amaravadi, M.D. noted
“degenerative disc space narrowing at ¶ 6-7 with
anterior osteophyte present . . . [and] neural foraminal
stenosis at ¶ 3-4 and C4-5 resulting from facet
arthropathy.” (Docket Entry # 11, Tr. 517). The
radiology report additionally states, “There is no
evidence of fracture or subluxation.” (Docket Entry #
11, Tr. 517).
the hearing before the ALJ on November 19, 2014, plaintiff
and a vocational expert testified. Plaintiff testified that
his left foot had plantar fasciitis, that his foot hurt from
his heel to his knee and, in response to the ALJ's
question, that plaintiff wore a boot and did stretches for
it. (Docket Entry # 11, Tr. 44-45). Plaintiff stated that his
girlfriend went shopping for groceries for him and did the
laundry, the housework and the cooking. (Docket Entry # 11,
Tr. 49-50). His girlfriend also did the driving, according to
plaintiff's testimony. (Docket Entry # 11, Tr. 51).
Responding to a question by his attorney about the injections
in his heel for plantar fasciitis, plaintiff testified that
the injections made the heel hurt. (Docket Entry # 22, p.
vocational expert detailed plaintiff's past work history
as a carpenter (DOT 860.381-022), a “medium skilled
occupation” that had a specific vocational preparation
(“SVP”) of seven; a siding installer (DOT
863.684-014), a medium semiskilled position with an SVP of
four; and a hotel maintenance worker (DOT 323.687-018), a
position requiring “heavy, unskilled” work.
(Docket Entry # 11, Tr. 62-63). The vocational expert stated
that plaintiff lacked transferable skills because any skills
acquired during these occupations “would all be
occupationally specific.” (Docket Entry # 11, Tr. 63).
Based on limitations suggested by the ALJ, the vocational
expert stated that plaintiff was incapable of performing his
past relevant work. (Docket Entry # 11, Tr. 65).
vocational expert also testified that plaintiff could perform
other work as a “shipping checker, ” which she
described as a sedentary and unskilled work with an SVP of
two. (Docket Entry # 11, Tr. 66). She described the shipping
checker job as writing and keyboarding. (Docket Entry # 11,
Tr. 69). The Dictionary of Occupational Titles
(“DOT”) section applicable to a shipping checker
defines the occupation as entailing light work with an SVP of
three. See DOT 222.687-030, 1991 WL 671797 (1991).
The DOT cited by the vocational expert is for an
“addresser, ” which consists of light work such
as sorting mail and addressing envelopes, packages and other
items by hand or a typewriter. See DOT 209.587-010,
1991 WL 671797 (1991). Thus, although referring to the
occupation as a “shipping checker, ” the
vocational expert described a job consistent with an
addresser. The ALJ cited the correct DOT in his opinion and
correctly classified the occupation as sedentary and
unskilled with an SVP of two, albeit referring to “the
job as a shipping checker.” (Docket Entry # 11, Tr. 27).
Handling and ...