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Jones v. Berryhill

United States District Court, D. Massachusetts

August 29, 2017

PAUL J. JONES, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         I. Introduction

         Plaintiff Paul J. Jones (“Jones”) filed applications for disability insurance benefits (“SSDI”) and supplemental security income (“SSI”) with the Social Security Administration (“SSA”) on August 21, 2012. R. 201, 208.[1] Pursuant to the procedures set forth in the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), Jones brings this action for judicial review of the final decision of Defendant Nancy A. Berryhill, [2] Acting Commissioner of the SSA (“the Commissioner”), issued by an Administrative Law Judge (“ALJ”) denying Jones's applications for SSDI and SSI benefits on December 5, 2014. R. 16. Jones filed two separate motions to reverse and remand the ALJ's decision denying SSDI and SSI benefits. D. 26; D. 28. Thereafter, the Commissioner moved to affirm the ALJ's decision. D. 30. For the reasons discussed below, the Court DENIES Jones's motions to reverse and remand, D. 26; D. 28, and GRANTS the Commissioner's motion to affirm, D. 30.

         II. Factual Background

         Jones has previously worked as a dietary aide, stock clerk, truck driver and in construction. R. 83, 97, 230, 235. Jones alleged that as of December 31, 2010, he was unable to work due to bilateral shoulder pain and arthritis in his right knee. R. 77, 201, 208.

         III. Procedural History

         On August 21, 2012, Jones filed pro se applications for SSDI and SSI benefits, asserting that he had been disabled since December 31, 2010. R. 201, 208. After an initial review, the SSA denied his claims on December 26, 2012. R. 114. Jones obtained counsel on February 24, 2013, R. 120, and requested reconsideration of his claims on February 26, 2013, R. 121, but the SSA again found Jones ineligible for benefits, R. 123. On August 21, 2013, Jones requested a hearing before an ALJ. R. 129. The hearing was originally scheduled for June 18, 2014, R. 138, but at Jones's counsel's request, it was rescheduled for November 4, 2014, R. 168-69. At the hearing before the ALJ, Jones and Ralph Richardson, a vocational expert (“VE”), testified. R. 19, 51-66. Jones's counsel also submitted a letter from Boston Medical Center (“BMC”), dated April 11, 2013, and a letter from the University of Massachusetts Disability Evaluation Services, dated January 2, 2014, to the ALJ at this hearing. R. 50-51.

         In a decision dated December 5, 2014, the ALJ determined that Jones was not disabled and denied his claims. R. 16. Jones requested review of the ALJ's decision on February 5, 2015. R. 7-8. The Appeals Council granted Jones a twenty-five day extension to submit additional evidence on February 20, 2015. R. 9. Jones's counsel claims that he submitted additional records from BMC to the Appeals Council on March 18, 2015, April 24, 2015, December 14, 2015 and January 20, 2016.[3] D. 29 at 1. After reviewing the administrative record and additional evidence submitted by Jones, the Appeals Council denied Jones's request for review on March 30, 2016, thereby making the ALJ's decision the final decision of the Commissioner. R. 1.

         IV. Discussion

         A. Legal Standards

         1. Entitlement to SSDI and SSI

         A claimant must qualify as having a “disability” to be entitled to SSDI and SSI benefits. 42 U.S.C. § 416(i)(1). A “disability” is defined by the Social Security Act as an “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.” Id. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. § 404.1505(a). To qualify as a disabling impairment, the physical or mental impairment must be sufficiently severe, such that it renders the claimant unable to engage in any previous work or other “substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a).

         The Commissioner follows a five-step sequential analysis to determine whether a claimant is disabled and thus whether the application for Social Security benefits should be approved. 20 C.F.R. § 416.920(a); see Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). The determination may be concluded at any step of the analysis. 20 C.F.R. § 416.920(a)(4). First, if the claimant is engaged in substantial gainful work activity, the application is denied. Id. § 416.920(a)(4)(i). Second, if the claimant does not have, or has not had, within the relevant time period, a severe medically determinable impairment or combination of impairments, the application is denied. Id. § 416.920(a)(4)(ii). Third, if the impairment meets the conditions of one of the listed impairments in the Social Security regulations, the application is approved. Id. § 416.920(a)(4)(iii). Fourth, where the impairment does not meet the conditions of one of the listed impairments, the Commissioner determines the claimant's residual functional capacity (“RFC”). Id. § 416.920(a)(4)(iv). If the claimant's RFC is such that he can still perform his past relevant work, the application is denied. Id. Fifth, if the claimant, given his RFC, education, work experience and age, is unable to do any other work within the national economy, he is disabled and the application is approved. Id. § 416.920(a)(4)(v).

         2. Standard of Review

         This Court may affirm, modify or reverse a decision of the Commissioner. See 42 U.S.C. § 405(g). Such judicial review, however, “is limited to determining whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (citing Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per curiam)). The ALJ's findings of fact are conclusive and must be upheld by the reviewing court when supported by substantial evidence “even if the record arguably could justify a different conclusion.” Whitzell v. Astrue, 792 F.Supp.2d 143, 148 (D. Mass. 2011) (quoting Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987)) (internal quotation mark omitted). Substantial evidence is “more than a mere scintilla, ” Richardson v. Perales, 402 U.S. 389, 401 (1971), and exists “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the Commissioner's] conclusion, ” Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The Court need not conclude that the ALJ's decision was based upon substantial evidence when reached through “ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen, 172 F.3d at 35. If the ALJ made a legal or factual error, this Court may reverse or remand such decision with instructions to consider new material evidence or apply the correct legal standard. See 42 U.S.C. § 405(g); Nguyen, 172 F.3d at 36; Manso-Pizarro, 76 F.3d at 19.

         B. Before the ALJ

         1. Medical History Presented to the ALJ

         When considering Jones's application, the ALJ examined extensive evidence regarding Jones's medical history, including treatment records, assessments and diagnoses. R. 68-485.

         a. Shoulder and Back Pain

         Jones's medical records reveal that he had been suffering from shoulder pain since 1995 when he fell off a ramp and onto his back, shoulder and head while at work. See, e.g., R. 308.

         In July 2010, Steven Abreu, M.D., recorded Jones's complaints regarding upper back pain after he lifted heavy weights while at work. R. 319-21. Jones experienced no numbness, weakness or paresthesia and had “5/5 strength” in his right upper extremity, but he had pain in his right trapezius. Id. Dr. Abreu then prescribed Ibuprofen and ice for Jones's back pain and recommended that he avoid heavy lifting. Id.

         In February 2012, Jones reported to Dr. Abreu that he had pain in his left shoulder from wrestling. R. 349. Dr. Abreu noted that Jones was not in acute distress, had “pain [in his] posterior shoulder with abduction” and had “5/5 deltoid strength.” R. 350. Dr. Abreu diagnosed Jones with a rotator cuff strain in his left shoulder and recommended that he take Advil and apply heat to the area. Id. In March 2012, Jones denied having back and joint pain during an office visit with Dr. Abreu. R. 322.

         In June 2012, Dr. Abreu recorded that Jones had been suffering from bilateral shoulder pain when he reached backwards for the past month. R. 340. Dr. Abreu noted that Jones was not in acute distress and had normal mobility of his bilateral shoulders, no deformities and 5/5 deltoid strength. R. 341. Dr. Abreu recommended that Jones go to the gym and increase his upper body exercises. Id.

         In August 2012, Jones informed Jennifer Smith, R.N., that he had been having discomfort and pain in his right shoulder for the past year. R. 342-43. Jones reported that it started when he tried lifting a heavy truck's door and that he was having difficulty lifting his right shoulder. Id. Smith diagnosed Jones with “tendonitis/bursitis and [a] probable rotator cuff tear.” R. 346. Jennifer Uyeda, M.D., reviewed an MRI of Jones's right shoulder on August 11, 2012, which revealed “[s]evere enlargement and nodular contour of the supraspinatus tendon which may represent evolving hydroxyapatite disposition (calcific tendinosis)” and “severe focal tendinosis and degeneration.” R. 304. Dr. Uyeda also noted that there was a “[l]ow grade interstitial tear of the infraspinatus tendon with extension into the myotendinous junction” and “[t]endinosis of the long head of the biceps tendon.” Id.

         In a letter dated August 20, 2012, Joel Caslowitz, M.D., wrote that Jones had “severe bilateral shoulder pain, and a recent MRI showed considerable damage, likely requiring surgery.” R. 299. He further stated that Jones was “unable to lift anything because of this [medical condition] and is, therefore, unable to work.” Id.

         On August 24, 2012, Robert Nicoletta, M.D., an orthopedic surgeon at BMC, evaluated Jones's bilateral shoulder pain-which was greater in his right shoulder than his left-and his one-year history of anterior, superior and lateral pain in both shoulders. R. 302. A MRI of Jones's right shoulder showed evidence of “subacromial bursitis, impingement, and acromioclavicular arthrosis, without evidence of full thickness rotator cuff tear.” Id. Radiographs and the MRI demonstrated evidence of “tendinosis supraspinatus without full thickness tear” and “[i]ncreasing subacromial swelling and bursitis.” Id. A physical examination of Jones's right and left shoulders demonstrated “pain on palpation at the acromioclavicular joint” and pain in his right shoulder's anterolateral acromion and anterior subacromial space. Id. Dr. Nicoletta also noted that Jones experienced pain “off the anterolateral acromion” and “[n]o weakness with rotator cuff testing” in his left shoulder. Id. Jones continued to have active and passive range of motion in both shoulders. Id. Dr. Nicoletta diagnosed Jones with chronic bilateral shoulder acromioclavicular arthrosis and impingement tendinitis, noted that Jones had no treatment to date and recommended physical therapy. Id.

         Jones began physical therapy for bilateral shoulder impingement on September 11, 2012 at BMC's Physical Therapy Department. R. 308. Jones was admitted to physical therapy twice a week for eight weeks, but did not attend two of his therapy appointments. R. 310-11.

         In December 2012, John Manuelian, M.D., a medical consultant for Disability Determination Services, reviewed Jones's medical records. R. 68-87. He determined that Jones had bilateral shoulder pain that was “consistent with chronic bilateral A-C arthrosis with impingement tendinitis.” R. 72. He noted that surgical intervention was possible, but Jones had been advised to have physical therapy. Id. Dr. Manuelian concluded that Jones had only limited ability to push, pull and reach with his upper extremities, but had unlimited ability for “gross manipulation, ” “fine manipulation” and “feeling.” R. 72-73. Dr. Manuelian also reported that Jones's medical condition limited him to work at the light exertion level. R. 75.

         In February and April 2013, Jones told Raphael Kieval, M.D., a rheumatologist at BMC, that he was suffering from severe pain in his shoulders, chronic back pain and pain in other areas. R. 355, 371. A physical examination revealed “impingement of the right shoulder” which limited Jones's range of motion in his shoulder, but Jones maintained full range of motion without feeling pain in his hips, knees, ankles and feet. R. 371. Dr. Kieval diagnosed Jones with tendinitis and bursitis in Jones's right shoulder as well as calcific tendonitis based on an MRI. R. 371-72. Dr. Kieval provided an injection to the shoulder and a prescription for Meloxicam, aspirin and physical therapy. R. 355, 372, 378.

         Jones also met with Dr. Caslowitz several times in February, March and April 2013 to address the severe pain in his shoulders, which prevented him from working and was not alleviated by Percocet. R. 301, 359-61, 374-75, 379. Dr. Caslowitz noted that Jones had limited motion in his right shoulder but was not under acute distress, and he prescribed Oxycodone. R. 360-61, 374-75, 379-80. A physical examination with Dr. Caslowitz also revealed that Jones was morbidly obese, his motor skills were intact and his posture and gait were normal. R. 374-75, 379.

         In July 2013, Subbiah Doraiswami, M.D., a medical consultant to Disability Determination Services, found results similar to those of Dr. Manuelian. See R. 88-99. Specifically, Dr. Doraiswami concluded that Jones's muscle, ligament and fascia disorders were severe, but that Jones's sprains and strains were not severe. Id. at 93. Regarding Jones's “manipulative limitations, ” Dr. Doraiswami noted that “there should be improvement to a degree [such] that aggressive and repetitive movements may be implemented occasionally” if Jones undertook physical therapy and “surgery if ...

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