United States District Court, D. Massachusetts
PAUL J. JONES, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
J. CASPER UNITED STATES DISTRICT JUDGE.
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. 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,
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.
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.
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.
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. 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.
Entitlement to SSDI and SSI
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.
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. §
Standard of Review
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).
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.
Before the ALJ
Medical History Presented to the ALJ
considering Jones's application, the ALJ examined
extensive evidence regarding Jones's medical history,
including treatment records, assessments and diagnoses. R.
Shoulder and Back Pain
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.
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.
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.
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.
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.
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.”
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
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.
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.
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.
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.
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