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Tsouvalas v. Berryhill

United States District Court, D. Massachusetts

July 14, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of the Social Security Administration



         Plaintiff Gregg Tsouvalas appeals from a final decision by the Acting Commissioner of Social Security (“the Commissioner”) upholding an administrative law judge's (“ALJ”) determination that plaintiff did not qualify for disability insurance benefits (“DIB”). Plaintiff contends that the ALJ erred by failing to adequately consider certain evidence of his impairments.

         I. Background

         Plaintiff filed an application for DIB on December 11, 2012, alleging disability beginning on March 1, 2008. His claim was first denied on May 1, 2013, and again upon reconsideration on September 30, 2013. He thereupon filed a request for a hearing before an ALJ. A hearing, at which plaintiff and a vocational expert (“VE”) testified, was held on December 15, 2014. On the day of the hearing, plaintiff and his counsel submitted a request to amend plaintiff's onset date to August 22, 2012. The ALJ acknowledged the request at the hearing and entered it into evidence.

         A. Applicable Statutes and Regulations

         To receive Social Security DIB, a claimant must be unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The impairment must be “of such severity that [the claimant] 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.” Id. § 423(d)(2)(A); see also 20 C.F.R. § 404.1505(a).

         The ALJ analyzes whether a claimant is disabled using an established “five-step sequential evaluation process.” See 20 C.F.R. § 404.1520(a)(4)(i)-(v). Under this framework, the ALJ first determines whether the claimant is currently engaging in substantial gainful work activity. If not, then at step two, the ALJ decides whether the claimant has a “severe” medical impairment or combination of impairments, which means the impairment or combination of impairments “significantly limits [the claimant's] physical or mental ability to do basic work activities, ” id. § 404.1520(c). If the claimant has a severe impairment or combination of impairments, then the ALJ considers, third, whether such meet or equal an entry in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, together with the duration requirement. If so, then the claimant is considered disabled. If not, the ALJ must determine the claimant's residual functional capacity (“RFC”), which is “the most [the claimant] can still do despite [his] limitations, ” Id. § 404.1545(a)(1). The ALJ then moves to step four and determines whether the claimant's RFC allows him to perform his past relevant work. If the claimant has the RFC to perform his past relevant work, then he is not disabled. If the claimant does not, the ALJ decides, at step five, whether the claimant can do other work in light of his RFC, age, education, and work experience. If the claimant can, he is not considered disabled; otherwise, he is. “Once the applicant has met his or her burden at Step 4 to show that he or she is unable to do past work due to the significant limitation, the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the applicant can still perform.” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001); see also 20 C.F.R. §§ 404.1512(f), 404.1560(c)(2).

         B. The Initial Rejection and the ALJ's Decision

         In a February 20, 2015, written decision, structured around the five-step sequential evaluation process, the ALJ found plaintiff not disabled under the Social Security Act through September 30, 2012, the date last insured (“DLI”).[2] At the first step, the ALJ found that plaintiff had not engaged in substantial gainful activity from his amended alleged onset date of August 22, 2012, through his DLI. Next, at step two, he determined that plaintiff had the following severe impairments through his DLI: abdominal hernia status post surgical repair, chronic obstructive pulmonary disease, bronchitis, asthma, and obesity.[3] At step three, the ALJ held that plaintiff “did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Docket # 10-2, at 18.

         Before moving to step four, the ALJ determined plaintiff's RFC:

After careful consideration of the entire record, the undersigned finds that through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b), except that he was limited to climbing, balancing, stooping, kneeling, crouching, and crawling no more than occasionally, and he could never climb ladders, ropes, and scaffolds. The claimant needed to avoid concentrated exposure to extreme cold as well as to fumes, odors, dusts, gases, and poorly ventilated areas, as well as to workplace hazards such as dangerous machinery (excluding motor vehicles) or unprotected heights. Finally, due to limitations in pace and persistence, the claimant could work in a low-stress job, with only occasional decision-making and occasional changes in a work setting, and could not do production rate or pace work.

Id. The ALJ explained that on August 22, 2012, plaintiff's amended alleged onset date, plaintiff underwent elective incisional hernia repair surgery. While the surgery itself was successful, the ALJ wrote, “there was a complication upon extubation, and [plaintiff] went into acute respiratory distress.” Id. at 19; see also Docket # 10-7, at 6. Plaintiff required re-intubation and was hospitalized until September 4, 2012, at which time he was discharged against medical advice. Docket # 10-2, at 19; Docket # 10-7, at 6; Docket # 10-8, at 62-63. The ALJ included that plaintiff's “doctors later reported that [his] difficulty with extubation may have been related to drug use and alcohol withdrawal.” Docket # 10-2, at 19. Further, the ALJ noted that although plaintiff was hospitalized for pneumonia in November 2012, “this hospitalization took place after [plaintiff's DLI], and there is no indication in the record that this condition was so severe as to be disabling for a period of 12 months.” Id. at 20. After citing several factors he considered, the ALJ found:

Despite the claimant's allegations of total disability during the relevant period, the evidence indicates that the claimant had one major health crisis during this time, likely complicated by drug and alcohol abuse, from which he appeared to recover in 11 days. The remainder of the health problems he alleged at the hearing were not diagnosed or addressed until well after his date last insured. This suggests that the claimant's symptoms did not limit his activities to the extent alleged from August 22, 2012 through September 30, 2012. . . . Thus, while the undersigned finds that the claimant had impairments that more than minimally impacted his ability to engage in work related activities during that time, the undersigned is not persuaded that the degree of impairment rendered him disabled.

Id. The ALJ accorded the Disability Determination Services medical advisors' opinions, which supported the ALJ's RFC determination, “great weight, as they are well-supported by the medical evidence of record.” Id. at 21; he gave the opinions from plaintiff's doctors “little weight, ” as “these assessments were completed well after [plaintiff's DLI], ...

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