United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
Marcos Reyes (“Reyes”) filed claims for
supplemental security income (“SSI”), R. 386,
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
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.
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.
Entitlement to SSI
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).
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.
Standard of Review
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)).
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)).
Before the ALJ
Back and Knee Pain
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.
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.
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.
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.
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.
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.
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.
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. ...