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Fortin v. Colvin

United States District Court, D. Massachusetts

March 31, 2017

JOSEPH ALBERT FORTIN, 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. Nos. 17 & 22)

          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") 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.

         Specifically, 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).

         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 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).

         The ALJ 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 followed.

         II. Factual Background

         Plaintiff 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).

         A. Medical Records

         1. Physical condition

         In 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.

         a. Diabetes

         Plaintiff 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. at 959).

         Records 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.).

         b. Back

         On May 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.).[1]

         Finn-Rizzo 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).

         Upon 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.).[2] 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.).

         The 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).

         B. RFC Assessments

         1. Carol N. Abalihi, M.D., PA

         Dr. 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.

         Dr. 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.).

         Dr. 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.).

         Based on her examination, Dr. Abalihi offered the following opinion:

. . . [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).

         2. State agency reviewers

         Manda 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).

         C. The ...


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