United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION
FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION TO
AFFIRM THE COMMISSIONER'S DECISION (Dkt. Nos. 12 &
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE
to 42 U.S.C. § 405(g), Plaintiff Ralph Francis Slater
III (“Plaintiff”) appeals the decision of the
Acting Commissioner of the Social Security Administration
(“Commissioner”), denying his claim for Social
Security Disability Insurance (“SSDI”). Plaintiff
asserts that the Commissioner's decision denying him such
benefits - memorialized in an April 20, 2015 decision by an
administrative law judge (“ALJ”) - is in error.
Specifically, Plaintiff alleges that the ALJ erred (1) by
attributing a medical opinion to the wrong treating source in
his decision; (2) in his assessment of Plaintiff's
credibility; and (3) by not including postural, manipulative,
and environmental limitations in his residual functional
capacity assessment. 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. 12). The Commissioner has moved for an
order affirming the decision of the Commissioner (Dkt. No.
22). The parties have consented to this court's
jurisdiction (Dkt. No. 15). 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
applied for SSDI on June 25, 2013, alleging a November 12,
2012 onset of disability (Administrative Record
(“A.R.”) at 190-91). Plaintiff's application
was denied initially and on reconsideration (id. at
128-130, 135-37). Plaintiff requested a hearing before an
ALJ, and one was held on February 10, 2015 (id. at
48-93, 138-39). Following the hearing, the ALJ issued a
decision on April 20, 2015, finding that Plaintiff was not
disabled and denying Plaintiff's claim (id. at
26-43). The Appeals Council denied review on July 5, 2016,
and the ALJ's decision became the final decision of the
Commissioner (id. at 1-6). This appeal followed.
Standard for Entitlement to Social Security Disability
order to qualify for SSDI, a claimant must demonstrate that
he or she is disabled within the meaning of the Social
Security Act. A claimant is disabled for purposes of
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). 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).
Commissioner evaluates a claimant's impairment under a
five-step sequential evaluation process set forth in the
regulations promulgated under the statute. See 20
C.F.R. § 404.1520. 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.
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).
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.
Standard of Review
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
was 43 years old on the alleged disability onset date (A.R.
at 36). He has a high school education and previously worked
as a sheet metal fabricator, delivery driver, order selector,
and yard manager (id. at 54, 88). When he applied
for SSDI, he alleged disability due to neck and back pain,
neck injury, back injury, and diabetes (id. at 208).
At the hearing, Plaintiff claimed disability due to a
combination of physical impairments, including back pain
radiating down his legs, knee pain, headaches, carpal tunnel
syndrome, and diabetes (id. at 63-81).
Pre-Hearing Treatment Records
December 14, 2012, Plaintiff was evaluated by Scott Cowan,
M.D., of New England Orthopedic Surgeons for neck and back
pain that radiated down his legs (id. at 719-720).
Plaintiff reported having sustained an injury at work on
October 30, 2012, when he was lifting an 80 pound piece of
sheet metal and experienced the onset of pain (id.).
Following his work injury, Plaintiff had nine visits of
physical therapy, but reported that they were minimally
effective (id.). Subsequently, Plaintiff had an MRI
of his thoracic spine, which Dr. Cowan reviewed and noted was
“essentially unremarkable” (id.). Lumbar
spine radiographs showed an old compression fracture at
¶ 1, which was minimally compressed, but were otherwise
“really unremarkable as well” (id.).
Plaintiff reported bilateral radiating leg pain, which was
achy in quality, as well as numbness and weakness
(id.). Plaintiff reported that the pain worsened
with activity, but was relieved if he reclined
(id.). Dr. Cowan observed Plaintiff to be morbidly
obese and in no acute distress (id.). Plaintiff rose
from a seated position without difficulty (id.).
Upon examination, Plaintiff had a reduced range of motion
(60% of normal) of the neck, tenderness to deep palpation of
the cervicothoracic junction region, and tenderness to mild
palpation throughout the thoracolumbar spine (id.).
While his gait was within normal limits, Plaintiff
experienced pain with hip and knee range of motion and seated
straight leg raising (id.). Dr. Cowan noted that
Plaintiff had “examination inconsistencies”
raising “secondary gain” questions
(id.). Dr. Cowan recommended that Plaintiff continue
with his non-operative care regimen with John Bedford, M.D.,
Plaintiff's primary care physician, and Ronald Paasch,
M.D., at Pioneer Spine & Sports Physicians
saw Dr. Bedford on December 17, 2012, at which time Dr.
Bedford noted that Plaintiff had seen Dr. Cowan, who
“reportedly did not feel any surgical intervention was
indicated …” (id. at 278-79). On that
same date, Dr. Bedford indicated in a To Whom It May Concern
letter that Plaintiff could not return to work for two weeks
because his pain was intensified by movement and vibration
(id. at 710). In the letter, Dr. Bedford also stated
that he would reevaluate Plaintiff on December 31, 2012, and
that Plaintiff was waiting on approval of a specialist
appointment with Dr. Paasch (id.).
contemplated, Plaintiff returned to Dr. Bedford on December
31, 2012 (id. at 276-77). At the time, Plaintiff
indicated that he felt that his symptoms were relieved by
pain medications and had improved some with an increase in
Fentanyl (id.). Upon examination, Plaintiff
exhibited tenderness in the region of his lumbar spine
saw Dr. Paasch on January 31, 2013 (id. at 348-350).
Plaintiff's history included persistent low back and
bilateral lower extremity pain since October, with the pain
radiating posteriorly down his legs into his calves and which
worsened with prolonged standing or sitting (id.).
Dr. Paasch noted that an x-ray of the lumbar spine showed no
significant abnormality except for some mild degenerative
changes (id.). Dr. Paasch also noted that Plaintiff
had been in physical therapy, but that it had not been
significantly helpful, and that Plaintiff had obtained an
orthopedic consultation, but aggressive intervention had not
been recommended (id.). Plaintiff was status post
caudal epidural injection, but reported only one day of
significant pain relief (id.). Upon examination,
Plaintiff walked with a normal gait, but reported discomfort
with both lumbar flexion and extension, exhibited tenderness
in the iliolumbar area bilaterally, and had a positive leg
test bilaterally (id.). Dr. Paasch recommended
obtaining an updated MRI of the lumbar spine to rule out a
disc herniation or stenosis and nerve root impingement
continued to see Dr. Paasch on a monthly basis through June
24, 2013 for persistent pain (id. at 330-347). On
February 12, 2013, Dr. Paasch noted that a recent EMG showed
“a significant disc bulge L4-5 and a possible free disc
fragment with lipomatosis and crowding of the canal and
possible L5 nerve roots” (id. at 345).