United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION
FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION FOR
ORDER AFFIRMING THE DECISION OF THE COMMISSIONER (Dkt. Nos.
13 & 17)
KATHERINE A. ROBERTSON United States Magistrate Judge
September 29, 2015, plaintiff James Michael Hurlburt
(“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 a July 24, 2014 decision by an administrative
law judge (“ALJ”) - is in error. Specifically,
Plaintiff alleges that the ALJ erred by not finding that his
mental impairments of depression and anxiety were severe.
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. 17). The parties have
consented to this court's jurisdiction (Dkt. No. 12).
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.
applied for SSI and SSDI on October 3, 2011, alleging a June
6, 2007 onset of disability due to a left shoulder injury and
emphysema (Administrative Record (“A.R.”) at
191-207, 215-224). Plaintiff's applications were denied
initially and on reconsideration (id. at 119-24,
129-35). Plaintiff requested a hearing before an ALJ, and one
was held on April 11, 2014, at which time Plaintiff claimed
disability due to a left shoulder injury, diabetes,
emphysema, depression, and anxiety (id. at 30-65).
Following the hearing, the ALJ issued a decision on July 24,
2014, finding that Plaintiff was not disabled and denying
Plaintiff's claims (id. at 10-27). The Appeals
Council denied review on July 29, 2015, and the ALJ's
decision became the final decision of the Commissioner
(id. at 1-7). 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. §§ 423(d)(1)(A), 1382c(a)(3)(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.
§§ 423(d)(2)(A), 1382c(a)(3)(B).
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. §§ 404.1520, 416.920. 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. §§ 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, No.
11-11156-TSH, 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.
§§ 405(g), 1383(c)(3). 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)). “While ‘substantial
evidence' is ‘more than a scintilla, ' it
certainly does not approach the preponderance-of-the-evidence
standard normally found in civil cases.” Bath Iron
Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56
(1st Cir. 2003) (citing Sprague v. Dir. Office of
Workers' Comp. Programs, U.S. Dep't of Labor,
688 F.2d 862, 865 (1st Cir. 1982)). 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.
Irlanda Ortiz, 955 F.2d at 769. 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 53 years old at the time of the ALJ's decision (A.R.
at 21, 191, 198). He has a high school education and
previously worked as an electrician and sheet metal mechanic
(id. at 219-220). Plaintiff was working as an
electrician in February 2007, when he injured his left
shoulder on the job (id. at 37-38). He continued to
work in a light duty capacity for four months after
sustaining the injury, until approximately June 2007, when he
had his first shoulder surgery (id. at 38, 55).
References to Mental Health in Physician Notes
March 10, 2008, Plaintiff was seen by Sharon L. Jarmolowicz,
P.A., at Concentra Medical Centers (“CMC”) for
pain in his right lower back (id. at 412-415).
Jarmolowicz noted that Plaintiff was already being treated at
CMC for a left shoulder injury sustained on February 8, 2007,
for which he had undergone two surgeries (id.).
During the visit, Plaintiff denied any “abnormal