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. Nos. 17 &
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") pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). Plaintiff Joseph Albert
Fortin ("Plaintiff") asserts that the
Commissioner's decision denying him such benefits --
memorialized in an October 31, 2014 decision of an
administrative law judge ("ALJ") -- is not
supported by substantial evidence.
Plaintiff alleges that the ALJ erred by failing to: (1) find
that his diabetes mellitus II ("DM") was a severe
impairment; (2) fully credit his hearing testimony regarding
the severity of his back pain; and (3) include his alleged
mental impairments in his residual functional capacity
("RFC") determination. Plaintiff has moved for
judgment on the pleadings (Dkt. No. 17), while the
Commissioner has moved to affirm (Dkt. No. 22).
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 on July 16, 2010 alleging an onset of
disability on July 3, 2010 (Administrative Record
("A.R.") at 223, 228, 408, 410). In his application
for DIB, Plaintiff alleged that he was disabled due to
essential hypertension and DM (id. at 223, 224). The
application was denied initially and upon reconsideration
(id. at 223, 224, 228). Following a hearing on
August 16, 2012, the ALJ issued his decision on October 3,
2012 finding Plaintiff was not disabled (id. at 190,
233). On December 4, 2013, the Appeals Council remanded the
case to the ALJ to address three issues (id. at
240-42). The Appeals Council directed the ALJ to offer
Plaintiff an opportunity for a second hearing, and to
"take any further action needed to update and complete
the administrative record and issue a new decision"
(id. at 242).
conducted a second hearing on July 21, 2014 and issued his
decision on October 31, 2014 finding Plaintiff was not
disabled (id. at 149, 156). The Appeals Counsel
denied review (id. at 1-6), and this appeal
has associates degrees in biomedical and industrial
electronics (id. at 195). He was employed full-time
by the Department of Defense in Texas as an instructor of
basic electronics and electronics for the Patriot Missile
System (id. at 198-99). His job involved teaching
classes and writing lesson plans (id. at 199-200).
He stopped working in 2009 when he was 60 years old
(id. at 223, 224, 410, 413, 415, 625, 690).
support of the disabling conditions listed in Plaintiff's
application for DIB benefits, he presented the ALJ with
extensive medical evidence spanning the period from 1998 to
2014. Because Plaintiff challenges the ALJ's decision
regarding his DM, back, and alleged mental impairment, the
court focuses on Plaintiff's medical history that is
related to those conditions.
was diagnosed with DM in about 2003 (A.R. at 707, 1013).
Although Plaintiff's DM was "not optimally
controlled" in August 2008, and although Scott K.
Silvia, M.D. noted that Plaintiff's diabetes required
better control on October 2, 2009, it was "well
controlled" by medication on May 20, 2009, on February
26, March 22, and December 8, 2010, on January 10, 2011, on
May 12, August 7, and November 13, 2012, and on July 29, 2013
(id. at 682, 683-84, 690-91, 782, 807, 841, 850,
877, 879, 914-15, 948, 986). On May 16, 2014, Plaintiff
reported to Nurse Practitioner William Sullivan of the
Veterans' Administration Medical Center
("VAMC") in Leeds, Massachusetts that his daily
glucose readings approached his target levels (id.
from 2008, 2009, 2010, and 2012 show that Plaintiff's
diabetic foot examinations were normal (id. at
625-26, 815, 849, 907-08). In August 2013, Plaintiff's
dorsalis pedis, posterior tibial pulses, and the sensation in
his feet were slightly diminished (id. at 983). A
podiatrist's examination in December 2013 revealed that
Plaintiff's gross sensation, light touch, and protective
sensations were intact, his bilateral muscle strength was
assessed at 5 out of 5, the range of motion of his transverse
and sagittal ankle and sutalar joints was within normal
limits, and no gross abnormalities or digital deformities
were observed (id. at 1013). The podiatrist debrided
Plaintiff's toenails (id.).
12, 2012, Denise Finn-Rizzo, FNP-SC of Orchard Medical
Associates, L.L.C., examined Plaintiff who complained of back
and right posterior leg pain, and numbness in the back of his
right upper thigh that increased with standing or walking for
long periods of time (id. at 877). Plaintiff denied
joint pain or stiffness, and reported that sitting was
"OK, " the pain increased when he carried heavy
items, and his right leg buckled "at times"
(id. at 878). Finn-Rizzo observed "some
tenderness to palpation" over Plaintiff's upper
lumbar spine and right mid-paralumbar areas, no sacroiliac
("SI") tenderness, and limited range of motion in
all planes (id. at 879). A May 15, 2012 x-ray showed
"[s]evere facet arthropathy . . . extending from the
L2-L3 through the L5-S-1 levels" and "[l]arge
anterior osteophytes" around the disc spaces
(id. at 896). The disc spaces were maintained and
the SI joints were normal (id.). There was no
evidence of spondylolysis or spondylolisthesis
(id.). Mario Gross, M.D.'s overall impression
was that "severe facet arthropathy" was likely
producing spinal stenosis (id.).
referred Plaintiff to Pioneer Spine and Sports Physicians,
P.C. ("Pioneer") where Sandra Rae, NP and Michael
J. Woods, D.O. examined Plaintiff on June 18, 2012
(id. at 868-71). Plaintiff described numbness in his
right leg, occasionally his left, and bilateral buttock pain
(id. at 868). According to Plaintiff, standing or
walking for more than thirty minutes increased his pain
(id.). The pain subsided, however, when he sat or
rested (id.). The transition from sitting in a chair
to standing was less painful than rising from a flexed
position (id.). Plaintiff reported that he exercised
a few times a week (id. at 869).
examination, Plaintiff's spine displayed full range of
motion without discomfort, his heel and toe walk was normal,
his reverse straight leg raise ("SLR") was positive
bilaterally, and his SLR was negative bilaterally
(id.). His hips, thighs, and feet were
unremarkable (id. at 869-70). After the physical
examination and review of Plaintiff's x-rays, the
examiners concluded that Plaintiff's symptoms were facet
pain and spinal stenosis (id. at 870). Although
physical therapy was recommended, Plaintiff wished to
postpone it due to required insurance co-payments
(id.). Treatment by injections and swimming for
exercise were also discussed (id.). According to the
report, Plaintiff "plan[ned] to continue use of
ibuprofen and naproxen for pain relief" (id.).
VAMC record of August 6, 2012 indicates that Plaintiff had
"long standing back pain with numbness to [his] right
ext[remities]" (id. at 917). At that time,
Plaintiff reported that meloxicam provided relief
(id.). He gave the same assessment of meloxicam to
VAMC examiners on February 15, 2013 and May 16, 2014
(id. at 959, 991). In May 2014, Plaintiff indicated
that he took daily walks, "got back to the gym, "
and planned to swim (id. at 963-64). 2. Mental
condition In September and October 2009, Dr. Silvia diagnosed
Plaintiff with acute adjustment disorder with insomnia and
depression along with DM and obesity, gave him a sample of
medication, and ordered laboratory tests (id. at
691, 693). On May 20, 2010, Plaintiff reported to Esteban
Quirarte, M.D. of the Veterans' Administration Health
Care Services ("VAHCS") in El Paso, Texas that he
was experiencing stress due to his recent job loss
(id. at 625). However, on June 12, 2012, the Pioneer
examiners reported that Plaintiff denied being depressed and
noted that his mood was "consistently euthymic"
during the examination (id. at 869-70). Screenings
for depression were negative at the VAMC on August 6, 2012
and May 6, 2014 (id. at 907-08, 961).
Carol N. Abalihi, M.D., PA
Abalihi examined Plaintiff in El Paso, Texas on September 27,
2010 (id. at 707). Dr. Abalihi obtained
Plaintiff's medical history and conducted a complete
physical examination (id. at 707-09). A summary of
the portions of her report that are relevant to this
court's analysis follows.
Abalihi observed that Plaintiff was "very obese, "
his gait was normal, he did not use an assistive device for
ambulation, and did not experience difficulty getting on and
off the examination table (id. at 708). Her
examination of his musculoskeletal system showed the absence
of joint effusion, peripheral edema, varicosities, and joint
and spine tenderness (id.). His pulses were 2
bilaterally (id.). All Plaintiff's joints,
including his spine, demonstrated full range of motion
(id.). He demonstrated 5/5 muscle strength in all
muscle groups, including his grip (id.).
Abalihi's neurological examination revealed that
Plaintiff's speech and affect were normal and his memory
was intact, as were his pin-prick and light touch sensations
(id.). He was able to walk on his heels and toes,
tandem-walk, squat, and hop without difficulty
(id.). His SLRs were to 70 degrees bilaterally
(id.). Deep tendon reflexes were 2 bilaterally and
plantar reflex was flexor (id.).
on her examination, Dr. Abalihi offered the following
. . . [Plaintiff] should be limited to lifting/carrying 20
[pounds] occasionally and 10 [pounds] frequently and
standing/walking to 4 hours in an eight-hour workday. He
needs a more objective assessment of his hearing. He has no
significant limitations to sitting, reaching, handling
objects or hearing.
(id. at 709).
State agency reviewers
Waldrep, M.D., a nonexamining medical consultant, assessed
Plaintiff's RFC on October 20, 2010 (id. at 710,
717). She opined that Plaintiff could: (1) lift 20 pounds
occasionally and 10 pounds frequently; (2) stand and/or walk
and sit, with normal breaks, for about six hours in an eight
hour workday; and (3) push and/or pull without limitation
(id. at 711). She further determined that Plaintiff
did not have postural, manipulative, visual, communicative,
or environmental limitations (id. at 712-15). Dr.
Waldrep noted the absence of end organ damage due to diabetes
(id. at 715). She further observed that Plaintiff
"allege[d] pain in [his] joints[, ] etc. on the ADL
form[, ] but denie[d] it at the physical exam" and
opined that his "alleged limitations [were] not wholly
supported by the evidence" (id. at 715). On May
31, 2011, Robin Rosenstock, M.D. agreed with Dr.
Waldrep's assessment (id. at 860).