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Reyes v. Berryhill

United States District Court, D. Massachusetts

July 26, 2017

MARCOS REYES, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner, Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff Marcos Reyes (“Reyes”) filed claims for supplemental security income (“SSI”), R. 386, [2] and disability insurance benefits (“SSDI”) with the Social Security Administration (“SSA”) on March 2, 2012, R. 395. Pursuant to the Social Security Act, 42 U.S.C. § 405(g), Reyes brings this action for judicial review of the final decision of the Commissioner of the SSA (“Commissioner”), D. 1, issued by Administrative Law Judge (“ALJ”) Sean Teehan on November 26, 2014, R. 21. Before the Court is Reyes's motion to reverse the ALJ's decision, D. 11, and the Commissioner's motion to affirm the decision, D. 17. For reasons discussed below, the Court DENIES Reyes's motion to reverse and GRANTS the Commissioner's motion to affirm.

         II. Factual Background

         Marcos Reyes was born on October 7, 1957 and filed for SSI on March 2, 2012. R. 386. In his disability application, Reyes alleged that PTSD, depression, anxiety, arthritis, obesity and back and leg pain limited his ability to work. R. 452. He initially reported the onset date as October 23, 2003, id., but later amended it to March 2, 2012, R. 438.

         III. Procedural Background

         Reyes filed an application for SSI benefits on March 2, 2012. R. 386. The SSA denied his application on July 13, 2012. R. 247. After Reyes submitted a “Request for Reconsideration, ” the SSA again denied Reyes's application on September 24, 2012. R. 250. On October 17, 2012, Reyes requested a hearing before an ALJ, R. 253, which was held on February 26, 2013. R. 224. In a decision dated March 28, 2013, the ALJ denied Reyes's claim. R. 233. On May 24, 2013, the Appeals Council remanded the case back to the ALJ. R. 237-40. After a hearing on October 28, 2014, the ALJ found Reyes not disabled on November 26, 2014. R. 7-21. The Appeals Council denied Reyes's request for review on January 6, 2016, rendering the ALJ's November 26, 2014 decision the Commissioner's final decision. R. 1-5.

         IV. Discussion

         A. Legal Standards

         1. Entitlement to SSI

         Entitlement to SSI turns on whether the claimant has a disability, which the Social Security Act defines as the “inability 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 has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. § 416.905(a). This impairment must be severe, rendering the claimant unable to do his or her previous work or any other gainful activity for which the claimant is qualified and which exists in the national economy. 20 C.F.R. § 416.905(a).

         SSA regulations require a five-step process when determining whether a claimant has a disability. Id. § 416.920. The Commissioner may find a claimant disabled or not disabled at any step, and the case will not proceed further. Id. § 416.920(a)(4). First, if the claimant is engaged in substantial gainful activity, the Commissioner will find the claimant not disabled. Id. § 416.920(a)(4)(i). Second, the claimant is not disabled if he or she has not had a severe impairment or combination of impairments during the relevant time period. Id. § 416.920(a)(4)(ii). Third, the claimant is found disabled if the severe impairment meets or equals an impairment listed in SSA regulations. Id. § 416.920(a)(4)(iii). Fourth, the Commissioner determines the individual's residual functional capacity (“RFC”). Id. § 416.920(a)(4)(iv). The claimant is not disabled if the RFC is such that the claimant can still perform past relevant work. Id. Fifth, if the RFC, considered in conjunction with the claimant's education, work experience and age, renders the claimant unable to do any other work in the national economy, the claimant is considered disabled. Id. § 416.920(a)(4)(v).

         2. Standard of Review

         The Court may affirm, modify or reverse the decision of the Commissioner with or without remanding the case for a rehearing. 42 U.S.C. § 405(g). The Court should uphold the Commissioner's decision unless a legal or factual error was made in evaluating a particular claim. Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (citing Sullivan v. Hudson, 490 U.S. 877, 855 (1989)). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro, 76 F.3d at 16. Substantial evidence exists when there is “more than a mere scintilla” supporting the conclusion, such that a reasonable mind would find the relevant evidence adequate, Richardson v. Perales, 402 U.S. 389, 401 (1971), but not when determined by “ignoring evidence, misapplying the law, or judging matters entrusted to experts, ” Nguyen v. Chater, 172 F.3d 31, 34 (1st Cir. 1999) (citing Da Rosa v. Sec'y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir. 1986)).

         Issues of credibility and inferences drawn from the record are committed to the Commissioner, who ultimately resolves conflicts in the evidence and determines the disability status of the claimant. Lizotte v. Sec'y of Health & Human Servs., 654 F.2d 127, 128 (1st Cir. 1981). As such, the Court must affirm the Commissioner's decision “even if the record arguably could justify a different conclusion” if it is supported by substantial evidence. Evangelista v. Sec'y of Health & Human Servs., 826 F.2d 136, 144 (1st Cir. 1987) (citing Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987)). That is, the Court must uphold the Commissioner's decision “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the] conclusion, ” even if the record could support multiple conclusions. Dedis v. Chater, 956 F.Supp. 45, 49 (D. Mass. 1997) (quoting Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)).

         B. Before the ALJ

         1. Medical History

         a. Physical Impairments

         i. Back and Knee Pain

         Reyes's medical records reveal he was first diagnosed with chronic back pain on February 29, 2012 at McInnis Health Group (“McInnis”). R. 855-57. Reyes stated he took Tylenol for pain, R. 856, and the only treatment plan instead was to return to the clinic as needed. R. 857.

         Reyes began seeing Anne Fitzgerald, N.P. (“Fitzgerald”) on April 3, 2012 at McInnis. R. 837. During this visit, Reyes complained of lower back pain, leg pain and depression. R. 838. Reyes told Fitzgerald he sustained a work-related accident in 2006 and has experienced back, hip and thigh pain since then. Id. On April 19, 2012, Fitzgerald noted that Reyes's pain was “[w]ell controlled with Tylenol” and she “[s]trongly encourage[d] heat, exercise for mobility, and weight loss.” R. 827. During a visit on May 1, 2012, Fitzgerald noted Reyes “want[ed] something stronger” than Tylenol and had begun using a cane, although he did not bring it that day. R. 815. Fitzgerald then prescribed Reyes Nabumetone and added bilateral knee pain to his diagnosed problems. R. 818-19.

         Reyes saw Dr. Tony Tannoury, M.D. (“Dr. Tannoury”) from the Department of Orthopaedic Surgery at Boston Medical Center on November 15, 2012. R. 990. Reyes complained of lower back pain and bilateral lower extremity pain and Dr. Tannoury noted Reyes took Tylenol and Naprosyn for pain relief. Id. Dr. Tannoury also reported that Reyes walked with the aid of a cane, had an antalgic gait and experienced a decreased range of motion “with pain at the extremes of range of motion” during a hip exam. Id. X-rays revealed “L4-L5 spondylolisthesis, grade 2, as well as hip arthritis.” Id. Dr. Tannoury recommended physical therapy and a follow-up in three months. R. 991.

         On January 31, 2013, Fitzgerald observed there were no marked changes in Reyes's back pain and encouraged gentle exercise. R. 1020, 1024. On April 30, 2013, Fitzgerald noted that Reyes had not yet begun physical therapy as recommended by Dr. Tannoury. R. 1198. There was then a nine-month gap in Reyes's visits and he returned to see Fitzgerald in February 2014. R. 1298. Fitzgerald reported no marked changes in Reyes's pain pattern and advised him to resume taking Nabumetone for severe pain. R. 1303. Reyes continued to see Fitzgerald, who consistently noted no marked changes in his back pain and encouraged Reyes to take Nubumetone as needed and engage in more movement or join a gym. See, e.g., R. 1198-1201, R. 1258-59, R. 1289.

         ii. Obesity

         Fitzgerald noted Reyes's obesity during their first visit on April 3, 2012. R. 837-38. She encouraged Reyes to eat smaller portions and walk. R. 841. Fitzgerald explained to Reyes on April 19, 2012 that his multiple health problems were related to obesity and she strongly encouraged him to exercise. R. 827. On May 15, 2012, Fitzgerald noted Reyes had gained twenty pounds in approximately six weeks, R. 803-04, and she again explained the associated health risks, R. 807. Fitzgerald repeatedly emphasized the need to lose weight and exercise throughout Reyes's treatment. See, e.g., R. 1021, 1201, 1259, 1300.

         b. Mental Impairments

         Reyes began psychiatric treatment at Boston Medical Center on April 13, 2012 with Dr. Leah Bauer, M.D. (“Dr. Bauer”). R. 829. Reyes said he felt depressed and anxious about readjusting to society after his release from incarceration and people discovering his sex offender status. Id. Dr. Bauer commented Reyes was “future oriented and motivated to seek out services and opportunities for services and employment.” Id. Dr. Bauer also noted that Reyes participated in a weekly sex offender therapy group held by Suffolk Superior Court. Id.

         Shortly thereafter, Reyes began treatment with Dr. Alex Keuroghlian, M.D. (“Dr. Keuroghlian”). On July 18, 2012, Dr. Keuroghlian diagnosed Reyes with anxiety and an adjustment disorder. R. 778. Dr. Keuroghlian determined Reyes's problem had worsened on August 1, 2012, diagnosing him with major depressive disorder and prescribing Zoloft. R. 770-71. Reyes's mood and ability to focus and retain information improved after he began taking the medication. R. 1036.

         Reyes then saw Dr. Michael Nevarez, M.D. (“Dr. Nevarez”) on May 1, 2013. R. 1191. Dr. Nevarez reported Reyes had not taken Zoloft for several months and advised him to re-start at 100 mg daily. R. 1191-92. Reyes again stopped taking Zoloft and complained of anxiety and depression. R. 1292. In February 2014, Dr. Derri Shtasel, M.D. (“Dr. Shtasel”), who had supervised some of Reyes's psychiatric treatment in 2012, see, e.g., R. ...


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