United States District Court, D. Massachusetts
VIRGEN M. AYALA, Plaintiff,
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. 15 &
KATHERINE A. ROBERTSON United States Magistrate Judge.
January 13, 2016, plaintiff Virgen M. Ayala
(“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 her claims for Supplemental Security
Income (“SSI”) and Social Security Disability
Insurance (“SSDI”). Plaintiff asserts that the
Commissioner's decision denying her such benefits -
memorialized in an April 15, 2015 decision by an
administrative law judge (“ALJ”) - is in error.
Specifically, Plaintiff alleges that the ALJ erred by not
assessing the severity of her tendonitis of the elbow and not
finding it to be severe and by not granting a treating
physician's assistant's opinion controlling weight
when assessing her 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. 15). 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. 14). 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
applied for SSI and SSDI with a protective filing date of
July 11, 2013, alleging a March 1, 2010 onset of disability
due to asthma, bacterial infection, hip pain, tendonitis, and
high blood pressure (Administrative Record
(“A.R.”) at 17, 227-38, 247, 262).
Plaintiff's applications were denied initially and on
reconsideration (id. at 136-49, 155-60). Plaintiff
requested a hearing before an ALJ, and one was held on March
31, 2015, at which time Plaintiff claimed disability due to
arthritis and osteoarthritis in her back, hands, neck, and
leg, tendonitis of the elbow and arms, tinnitus, bilateral
sensory hearing loss, and asthma (id. at 72-99,
161-62). Following the hearing, the ALJ issued a decision on
April 15, 2015, finding that Plaintiff was not disabled and
denying Plaintiff's claims (id. at 11-28). The
Appeals Council denied review on November 19, 2015, and the
ALJ's decision became the final decision of the
Commissioner (id. at 1-10). This appeal followed.
Standard for Entitlement to Social Security Disability
order to qualify for SSI and SSDI, a claimant must
demonstrate that she is disabled within the meaning of the
Social Security Act. A claimant is disabled for purposes of SSI
and SSDI if she “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 she “is not only unable to do his
previous work, but cannot, considering h[er] 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
[s]he lives, or whether a specific job vacancy exists for
h[er], or whether [s]he would be hired if [s]he applied for
work.” 42 U.S.C. § 1382c(a)(3)(B); 42 U.S.C.
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).
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.
March 27, 2009, Plaintiff went to Mercy Medical Center
emergency room complaining of radiating left elbow pain with
movement, but no pain at rest (id. at 439). She
reported that the pain had been intermittent over the
previous two months (id.). On examination,
Plaintiff's epicondyles were tender to palpation with
pain on flexion and extension, but her strength was full and
her handgrip was strong (id. at 439). An x-ray of
her elbow was negative for fracture (id. at 440).
The treating physician's assistant suspected
epicondylitis, prescribed Percocet and ibuprofen, and advised
Plaintiff to follow-up with her primary care provider
April 30, 2009, Plaintiff's primary care provider
referred Plaintiff to Donald Griger, M.D., at the Arthritis
Treatment Center based on Plaintiff's report of
experiencing left “tennis elbow” pain for three
months that was not helped by nonsteroidal anti-inflammatory
drugs (NSAIDs) (id. at 382-83). Dr. Griger saw
Plaintiff on May 6, 2009, at which time Plaintiff stated that
her left elbow pain radiated up and down her arm, was mild
while at rest and worsened with activity, and benefitted to
some degree from medication (id. at 366-67). Dr.
Griger's physical examination of Plaintiff was normal,
and he diagnosed Plaintiff with left lateral epicondylitis
and left upper and lower arm pain and recommended physical
therapy, exercise, and a splint (id.).
22, 2009, J. Lewin, a physical therapist at the Arthritis
Treatment Center, evaluated Plaintiff (id. at
377-78). Lewin's physical examination of Plaintiff's
left arm revealed tenderness in the left lateral elbow,
reduced strength but normal range of motion, and spasm upon
palpation (id.). Lewin's plan of care included
iontophoresis and exercise, with short-term goals of
education and elbow stretching and long-term goals of
increasing strength and activities of daily living
(id.). Plaintiff participated in eight sessions of
physical therapy between May 26, ...