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Garay v. Berryhill

United States District Court, D. Massachusetts

September 25, 2017

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



         I. Introduction

         On June 30, 2016, plaintiff Angel L. Martis Garay (“Plaintiff”) filed a complaint pursuant to 42 U.S.C. § 405(g) (“§ 405(g)”) against the Acting Commissioner of the Social Security Administration (“Commissioner”), appealing the denial of 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 2, 2016 decision by an administrative law judge (“ALJ”) - is in error. Specifically, Plaintiff alleges that the ALJ erred by: (1) failing to find that his impairment met Listing 1.04 in 20 C.F.R. Part 404, Subpart P, App. 1; (2) ignoring objective evidence corroborating his claims of disabling pain; and (3) relying, at step five, on flawed testimony from the vocational expert. By a separate motion, also addressed in this Memorandum and Order, Plaintiff seeks remand of this case pursuant to sentence six of § 405(g) for presentation of new and material evidence. By his motions, Plaintiff seeks remand for consideration of new evidence, or, in the alternative, judgment on the pleadings that the Commissioner's decision be reversed or remanded for error based on consideration of the existing evidence (Dkt. Nos. 20, 22). The Commissioner has moved for an order affirming the decision of the Commissioner (Dkt. No. 27). The parties have consented to this court's jurisdiction (Dkt. No. 14). See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the following reasons, the court DENIES Plaintiff's motions and GRANTS the Commissioner's motion.

         II. Procedural Background

         Plaintiff applied for SSI and SSDI on May 10, 2012, alleging a January 1, 2012 onset of disability (Administrative Record (“A.R.”) at 195-211). Plaintiff's applications were denied initially and on reconsideration (id. at 121-24, 128-131, 133-38). Plaintiff requested a hearing before an ALJ, and one was held on January 22, 2013, at which time Plaintiff claimed disability due to hepatitis C, back pain, and anxiety and depression (id. at 44, 49-50, 53, 55). Following the hearing, the ALJ issued a decision on March 28, 2013, finding that Plaintiff was not disabled and denying Plaintiff's claims (id. at 8-29). The Appeals Council denied review on May 30, 2014, and the ALJ's decision became the final decision of the Commissioner (id. at 1-7). Plaintiff appealed the denial to the United States District Court for the District of Massachusetts, which reversed the ALJ's decision and remanded the case in order for the ALJ to properly consider the side effects, if any, of Plaintiff's medications. See Garay v. Colvin, Civil Action No. 14-30138-MGM, 2015 WL 1648748, at *4 (D. Mass. April 14, 2015). A second hearing was held on October 16, 2015 (A.R. at 610-42). Following the hearing, the same ALJ again found that Plaintiff was not disabled and denied his claims ( 585-609). Plaintiff did not request review by the Appeals Council, and has exhausted his administrative remedies. This suit 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.[1] 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. § 1382c(a)(3)(A); 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. § 1382c(a)(3)(B); 42 U.S.C. § 423(d)(2)(A).

         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. § 416.920; 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. § 416.920; 20 C.F.R. § 404.1520.

         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, 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. § 1383(c)(3); 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)). 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. Id. 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. Discussion

         A. The Evidence

         Plaintiff was 43 when the second hearing was held (A.R. at 43). He had been incarcerated for approximately 15 years in Puerto Rico (id. at 42). His prior relevant employment was as a janitor and a home health aide.

         1. Relevant Medical Records[2]

         On April 9, 2012, Plaintiff was seen at the Mercy Emergency Room after taking medication that belonged to a friend and had been prescribed for muscle aches. Plaintiff was described as a 40-year-old male with no significant medical history who was physically active, worked out daily, and was a roofer by trade (id. at 300). His musculoskeletal examination was normal (id. at 301). On or around May 5, 2012, Plaintiff was transported to the Mercy Medical Center Emergency Room after he was assaulted. The diagnosis was facial contusions and fractures and a subdural hematoma. Diagnostic imaging of Plaintiff's cervical spine conducted during this emergency room visit showed mild degeneration throughout his cervical spine (id. at 291, 299). A May 24, 2012 image of Plaintiff's lumbosacral spine showed spondylolisthesis at ¶ 6-S1[3] and degenerative disc disease at this level (id. at 341).

         On July 19, 2012, Plaintiff was seen by David Chadbourne, M.D., of Comprehensive Family Medical Care. Notes from the visit reflect that Plaintiff presented as a well-developed healthy appearing male in no apparent distress. Plaintiff had back pain but no joint stiffness or limb pain (id. at 377-78).

         On January 8, 2013, Plaintiff was seen at Mercy Medical Center Emergency Room following a motor vehicle accident. He complained of lower back and right elbow pain and reported having chronic back pain which was disabling (id. at 393). On examination, Plaintiff had full range of motion in all joints, was able to ambulate in the emergency room without difficulty, and had mild lumbar region tenderness. The diagnosis was acute lumbar strain. Plaintiff was prescribed pain medication and directed to care for himself at home and avoid strenuous activity (id. at 395).

         On January 18, 2013, Plaintiff was evaluated by Raghu Bajwa, M.D., of Physical Medicine and Rehabilitation, as a result of the car accident. Plaintiff presented with neck pain, shoulder pain bilaterally, with more pain in his right than his left shoulder, lower back pain, and pain in his right elbow (id. at 530). On examination, Dr. Bajwa observed moderate limitation in the range of motion in Plaintiff's cervical spine and tenderness to palpitation (id. at 531). He found mild limitation in the range of motion in Plaintiff's left shoulder, moderate limitation in the range of motion in the right shoulder, and limited range of motion in Plaintiff's right elbow (id. at 532). While Dr. Bajwa judged that Plaintiff's range of motion in his thoracic spine was within normal limits, he observed moderate limitations in the range of motion in Plaintiff's lumbar spine. A straight leg raising test was negative bilaterally. Dr. Bajwa's initial diagnosis was cervical muscle and ligament injuries, bilateral shoulder contusions, with the right shoulder more involved than the left, a right elbow contusion, lumbar muscle and ligament injuries, and a history of chronic neck, lower back, and bilateral shoulder pain which had been aggravated by the motor vehicle accident (id. at 533). Dr. Bajwa recommended physical therapy, including a home-based exercise program, and advised Plaintiff to avoid bending, pushing, or heavy lifting or other strenuous activity (id. at 534). He opined that Plaintiff was temporarily partially disabled from January 18 through February 18, 2013, as Plaintiff was experiencing impairment of his activities of daily living (id.). Plaintiff returned for a follow-up appointment on February 11, 2013, when Dr. Bajwa observed general improvement in Plaintiff's condition. Plaintiff had a mild range of motion limitation in his lumbar and cervical spine. He had a mild limitation in the range of motion in his right shoulder, while the range of motion in his left shoulder was within normal limits (id. at 536-37). Dr. Bajwa certified that Plaintiff was partially disabled from February 11 through March 11, 2013 (id. at 537). Plaintiff was advised to continue with his home exercise program and physical therapy and was given a prescription for Motrin (id.).

         Plaintiff received physical therapy at Quality Medical & Physical Therapy from January 11 through March 4, 2013 (id. at 540-551). On discharge, Plaintiff was back to baseline, with intermittent pain in his neck, back and shoulders ranging from 3 to 5 on a ten point scale, and no pain in his elbow. His range of motion and overall strength were improved (id. at 544).

         In May 2013, Plaintiff was seen at Caring Health Center to establish a primary care provider (id. at 501). He reported chronic pain in his thoracic and lumbar spine (id. at 503). On examination, he had a normal range of motion (id. at 504). He was referred for an MRI, which was conducted on May 22, 2013 (id. at 440). The MRI revealed L5-S1 spondylolisthesis with bilateral L5 spondylolysis, [4] marked right and moderate left neuroforaminal stenosis at ¶ 5-S1 with probable impingement of the right L5 nerve root, and multilevel degenerative disc change, with the most severe damage being at ¶ 5-S1 (id. at 440-43).

         Plaintiff was referred for a consultation with neurosurgeon Thomas S. Kaye, M.D., who reviewed the MRI and examined Plaintiff on September 30, 2013. Dr. Kaye's examination showed a marked restrictive range of motion to the back and a positive straight leg raising sign on the right side. Plaintiff had a mild antalgic gait favoring the right side. Strength and sensation were intact, and there was no atrophy. The plan was for conservative management, including physical therapy, pain medication, and possible epidural steroid management (id. at 480-81). In November, 2013, Plaintiff saw Nataliya Lukin, a physician's assistant at Caring Health Center. Ms. Lukin noted chronic back pain that was aggravated by twisting and bending. There was no accompanying numbness, leg pain, tingling, or weakness. Anti-inflammatories provided moderate relief (id. at 568). Ms. Lukin observed a normal range of motion (id. at 569). Plaintiff's physical therapy records from November and December 2013 show that his presentation was consistent with the MRI (id. at 563). He reported a forty percent (40%) improvement from the treatment, and the physical therapist observed some improvement with mobility (id. at 553, 559, 563).

         A January 9, 2014 electrodiagnostic study conducted by Pioneer Spine and Sports Physicians, P.C., was normal, showing no evidence of a right tibial or peroneal mononeuropathy, peripheral neuropathy, muscle myopathy or L2-S1 radiculopathy or lumbar plexopathy. Plaintiff was noted to be in no acute distress. His gait was antalgic, balanced with a normal cadence. He was taking Gabapentin for pain (id. at 825-26).

         Records from Plaintiff's physical therapy with Pioneer Sports and Sports Physicians from February through April 2014 show treatment for lumbar disc degeneration and spondylosis without myelopathy, and spinal stenosis in the lumbar region. Plaintiff reported pain at 5/10 at the worst and 3/10 at the best (id. at 829). On April 7, 2014, Plaintiff appeared robust, with no apparent distress. He stood comfortably erect and walked with a normal gait and station. A straight leg raise was negative bilaterally (id. at 835-36). Plaintiff reported that physical therapy had been helpful. He declined a facet or epidural injection (id. at 836). At a follow-up physician's visit on April 17, 2014, Plaintiff reported that his back pain was 8/10 at its worst and that Gabapentin was effective for his right leg cramping (id. at 838). On April 30, 2014, when Plaintiff reported to resume physical therapy after a fall, he reported to a physical therapist that limitations with bending continued, and that standing more than twenty minutes and sitting more than ten seconds increased his pain. He walked with a slow and stiff gait (id. at 841). By May 8, 2014, Plaintiff reported feeling good from his last physical therapy session. He was attending work meetings and workouts at the YMCA (id. at 848).

         On May 22, 2014, Plaintiff was seen at the Caring Health Center for a dislocated left shoulder. Records from the Caring Health Center dating from August 2014 through May 1, 2015 consistently mention Plaintiff's reports of chronic lumbar back pain (id. at 945, 951, 954, 956), and, beginning on October 23, 2014, shoulder pain, bilateral - except in May 2015, when Plaintiff reported pain only in his left shoulder - without numbness or tingling (id. at 951, 954, 956). An x-ray of Plaintiff's shoulders taken on October 23, 2014 showed right a.c. joint arthrosis with no acute abnormality seen, and mild arthrosis of the superior aspect of the left a.c. joint (id. at 858-59).

         From October 20 through November 24, 2014, Plaintiff was seen at Rehab Resolutions, Inc. for frequent physical therapy sessions. The diagnosis was spondylolisthesis, lumbosacral spondylosis without myelopathy, and degeneration of the lumbar or lumbrosacral discs (id. at 872). He was discharged due to lack of improvement (id. at 886). These records do not mention shoulder pain.

         A May 21, 2015 MRI of Plaintiff's lumbar spine showed nonspecific straightening of the lumbar spine. In contrast to the MRI conducted on May 22, 2013, there was no spondylolisthesis or spondylolysis. Vertebral body heights were well-maintained. The May 2015 MRI showed that at ¶ 5-S1, there was some disc desiccation consistent with disc degenerative changes, but there was no nerve root compression or thecal sac encroachment, and no significant spondylosis, facet arthrosis, or canal or neural foraminal stenosis. Findings at other levels of Plaintiff's lumbar spine were generally consistent (id. at 959).

         2. Medical ...

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