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Scott v. Berryhill

United States District Court, D. Massachusetts

September 18, 2017

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


          KATHERINE A. ROBERTSON United States Magistrate Judge.

         I. Introduction

         Pursuant to 42 U.S.C. § 405(g), Plaintiff David Alan Scott (“Plaintiff”) appeals the decision of the Acting Commissioner of the Social Security Administration (“Commissioner”), denying his claims for Supplemental Security Income (“SSI”) and Social Security Disability Insurance (“SSDI”). Plaintiff asserts that the Commissioner’s decision denying him such benefits – memorialized in a March 1, 2016 decision by an administrative law judge (“ALJ”) – is in error. Specifically, Plaintiff alleges that the ALJ erred in his credibility determination regarding Plaintiff’s allegations of back and neck pain and by not assigning controlling weight to an opinion of Plaintiff’s treating therapist. Plaintiff has moved for judgment on the pleadings, requesting that the Commissioner’s decision be reversed, or, in the alternative, remanded for further proceedings (Dkt. No. 13). The Commissioner has moved for an order affirming the decision of the Commissioner (Dkt. No. 17). The parties have consented to this court’s jurisdiction (Dkt. No. 12). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the following reasons, the court will deny Plaintiff’s motion and allow the Commissioner’s motion.

         II. Procedural Background

         Plaintiff applied for SSI and SSDI on March 8, 2015, alleging a June 5, 2013 onset of disability in both applications (Administrative Record (“A.R.”) at 246-256, 276). Plaintiff’s applications were denied initially and on reconsideration (id. at 176-182, 185-190). Plaintiff requested a hearing before an ALJ, and one was held on February 8, 2016 (id. at 59-91, 191-93). Following the hearing, the ALJ issued a decision on March 1, 2016, finding that Plaintiff was not disabled and denying Plaintiff’s claim (id. at 33-54). The Appeals Council denied review on April 1, 2016, and the ALJ’s decision became the final decision of the Commissioner (id. at 1-6). This appeal followed.

         III. Legal Standards

         A. Standard for Entitlement to Social Security Disability Insurance

         In order to qualify for SSI and SSDI, a claimant must demonstrate that he is disabled within the meaning of the Social Security Act.[2] A claimant is disabled for purposes of SSI and SSDI if he “is unable 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 which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is unable to engage in any substantial gainful activity when he “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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

         The Commissioner evaluates a claimant’s impairment under a five-step sequential evaluation process set forth in the regulations promulgated under each statute. See 20 C.F.R. §§ 404.1520, 416.920. The hearing officer must determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant suffers from a severe impairment; (3) whether the impairment meets or equals a listed impairment contained in Appendix 1 to the regulations; (4) whether the impairment prevents the claimant from performing previous relevant work; and (5) whether the impairment prevents the claimant from doing any work considering the claimant’s age, education, and work experience. See id. See also Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982) (describing the five-step process). If the hearing officer determines at any step of the evaluation that the claimant is or is not disabled, the analysis does not continue to the next step. 20 C.F.R. §§ 404.1520, 416.920.

         Before proceeding to steps four and five, the Commissioner must make an assessment of the claimant’s “residual functional capacity” (“RFC”), which the Commissioner uses at step four to determine whether the claimant can do past relevant work and at step five to determine if the claimant can adjust to other work. See id. “RFC is what an individual can still do despite his or her limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work- related physical and mental activities.” Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2 (July 2, 1996).

         The claimant has the burden of proof through step four of the analysis, Goodermote, 690 F.2d at 7, including the burden to demonstrate RFC. Flaherty v. Astrue, No. 11-11156-TSH, 2013 WL 4784419, at *9 (D. Mass. Sept. 5, 2013) (citing Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). At step five, the Commissioner has the burden of showing the existence of other jobs in the national economy that the claimant can nonetheless perform. Goodermote, 690 F.2d at 7.

         B. Standard of Review

         The District Court may enter a judgment affirming, modifying, or reversing the final decision of the Commissioner, with or without remanding for rehearing. See 42 U.S.C. § 405(g). Judicial review “is limited to determining whether the ALJ used the proper legal standards and found facts upon the proper quantum of evidence.” Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The court reviews questions of law de novo, but must defer to the ALJ’s findings of fact if they are supported by substantial evidence. Id. (citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.1999)). Substantial evidence exists “‘if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the] conclusion.’” Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). “While ‘substantial evidence’ is ‘more than a scintilla,’ it certainly does not approach the preponderance-of-the-evidence standard normally found in civil cases.” Bath Iron Works Corp. v. U.S. Dep’t of Labor, 336 F.3d 51, 56 (1st Cir. 2003) (citing Sprague v. Dir. Office of Workers’ Comp. Programs, U.S. Dep’t of Labor, 688 F.2d 862, 865 (1st Cir. 1982)). In applying the substantial evidence standard, the court must be mindful that it is the province of the ALJ, and not the courts, to determine issues of credibility, resolve conflicts in the evidence, and draw conclusions from such evidence. Irlanda Ortiz, 955 F.2d at 769. So long as the substantial evidence standard is met, the ALJ’s factual findings are conclusive even if the record “arguably could support a different conclusion.” Id. at 770. That said, the Commissioner may not ignore evidence, misapply the law, or judge matters entrusted to experts. Nguyen, 172 F.3d at 35.

         IV. Facts

         A. Background

         Plaintiff was 52 years old at the time of the ALJ’s decision (A.R. at 60). He has a high school education and worked at the same company for 24 years, with his past relevant experience including work as a materials handler, picker, machine operator, receiver, and inspector of packages (id. at 60, 88). When he applied for SSI and SSDI, Plaintiff alleged disability due to chronic neck and back pain, chronic fatigue, sleep apnea, gout/chronic foot pain, chronic knee pain/weakness, chronic kidney stones, depression/anxiety/anger, social phobia, post-traumatic stress disorder (“PTSD”), and attention deficit disorder (“ADD”) (id. at 276). At the hearing, Plaintiff claimed disability as a result of chronic low back pain, degenerative disc disease of the cervical spine as well as cranial nerve disorder/cervical dystonia, chronic kidney stones, a hernia, gout, bipolar disorder, generalized anxiety disorder, and attention deficit hyperactivity disorder (“ADHD”) (id. at 59).

         B. Medical Evidence in Issue[3]

         1. Medical Records Relating to Plaintiff’s Back and Neck Conditions

         A September 5, 2013 x-ray of Plaintiff’s cervical spine showed “[m]ild multilevel spondylosis … without prominent neural foraminal encroachment” (id. at 722). An x-ray of the same date of Plaintiff’s lumbar spine showed “[m]ild endplate spondylosis,” “[n]o advanced disc disease,” and “[m]oderate facet arthropathy at ¶ 5-S1” (id. at 723).

         Plaintiff saw R. Scott Cowan, M.D. at New England Orthopedic Surgeons on November 5, 2013 for chronic low back pain with “no clear etiology” (id. at 617). Plaintiff reported that the pain was aching in quality and rated it a 3 on a scale of 1-to-10 (id.). Plaintiff denied radiating leg pain, numbness, or weakness (id.). Plaintiff reported having had a flare-up in June, after which he had not returned to work (id.). According to Plaintiff, physical therapy had not been effective, but over-the-counter pain medication provided some relief (id.). Upon examination, Plaintiff displayed a reduced range of motion (60% of normal), but normal reflexes, normal ambulation, and a negative seated straight leg test (id.). Dr. Cowan ordered x-rays of the lumbosacral spine, which were obtained and reviewed that same day and were “notable for spondylitic findings without fracture or any other lesions” (id.). After reviewing the x-ray evidence, Dr. Cowan concluded, “I really have no diagnosis for him as the radiographs are unremarkable” (id.). Nevertheless, Dr. Cowan ordered an MRI to evaluate for an inflammatory lesion or any other pain generating process (id.).

         Plaintiff underwent the MRI of his lumbar spine on January 24, 2014 (id. at 611-12). The impression showed “[s]pondylotic and degenerative disc changes of the lumbar spine,” “foraminal narrowing … most pronounced at ¶ 3-L4 and L4-L5,” with ‘[n]o exiting or traversing nerve root impingement” (id.). Dr. Cowan reviewed the MRI results with Plaintiff on January 31, 2014, at which time, he indicated that the “study … was notable only for some mild degenerative disc findings without any traversing nerve root impingement noted,” and “really unremarkable for any significant structural lesions” (id.). Dr. Cowan noted that for treatment, Plaintiff had undergone some physical therapy and took minimal pain medication (id.). He described Plaintiff as “reassured” by the MRI results and started him on a functional restoration physical therapy program (id.).

         Plaintiff saw Paul Azimov, D.O., on August 28, 2014 for a physiatry consultation (id. at 739-742). In his report, Dr. Azimov notes that Plaintiff “had lumbar sacral spine MRI for chronic lower back pain in January 2014. It was generally noncontributory with evidence of mild neural foraminal stenosis and diffuse degenerative changes at multiple levels” (id.). “Cervical spine x-rays were done in September of 2013 demonstrating diffuse degenerative changes” (id.). Upon examination, Plaintiff demonstrated a reduced range of motion in both the cervical and lumbar spinal regions (id.). His cervical and lumbar musculature were without muscle tightness or elasticity (id.). He was able to go from sitting to standing position without difficulties, his gait was normal, and he was able to perform heel walk and toe walk (id.). Dr. Azimov ordered an epidural steroid injection, which he administered on September 12, 2014 (id. at 738-39). Dr. Azimov also ordered an MRI of Plaintiff’s cervical spine, which was done on September 5, 2014 (id. at 743). The MRI revealed “[m]ultilevel bony and disc degenerative changes,” protrusions of the C4-5 and C7-T1 discs, narrowing of the neural foramina at multiple levels, but no spinal cord compression (id.).

         On June 8, 2015, Plaintiff was evaluated by Michael Rossen, M.D. at Springfield Neurology Associates for an initial neurological consultation for balance problems (id. at 536-39). Plaintiff reported a many-year history of neck pain, as well as upper and lower back pain (id.). He described the neck pain as “dull, continuous, [and] mild at baseline but sometimes severe and sharp, especially if he turns is head to one side or the other” (id.). He described his back pain as intermittent, but usually present at least part of every day, and worse with physically strenuous activity (id.). Dr. Rossen ordered a cervical spine MRI, which was taken on June 17, 2015 (id. at 1010-1011). It showed “[m]ild ...

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