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Burgo v. Berryhill

United States District Court, D. Massachusetts

October 16, 2017

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



         Plaintiff Antonio Burgo, Jr.[2] appeals from a final decision by the Acting Commissioner of Social Security (“the Commissioner”) upholding the ruling of the Administrative Law Judge (“ALJ”) that rejected his application for Supplemental Security Income (“SSI”). Plaintiff contends that the ALJ erred in omitting both a physical and a mental limitation from his residual functional capacity (“RFC”) assessment, and in failing to give appropriate weight to the opinion of plaintiff's treating psychiatrist.

         I. Background

         Plaintiff filed an application for SSI on November 15, 2013, alleging disability beginning on September 3, 2011. His claim was first denied on January 23, 2014, and again upon reconsideration on May 27, 2014. Plaintiff requested a hearing before an ALJ, and a hearing at which the plaintiff and a vocational expert (“VE”) testified was held on May 26, 2015.

         A. Applicable Statutes and Regulations

         To receive SSI benefits, a claimant must be “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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). The impairment “must be of such severity that 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.” Id. § 1382c(a)(3)(B); see also 20 C.F.R. § 416.905(a).

         The ALJ analyzes whether a claimant is disabled using an established “five-step sequential evaluation process.” See 20 C.F.R.§ 416.920(a)(4)(i)-(v). Under this framework, the ALJ first determines whether the claimant is currently engaging in substantial gainful work activity. If not, then at step two, the ALJ decides whether the claimant has a “severe” medical impairment or impairments, which means an impairment that “significantly limits [the claimant's] physical or mental ability to do basic work activities, ” id. § 416.920(c). If the claimant has a severe impairment or impairments, the ALJ considers third whether the impairment or impairments meets or equals an entry in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, and meets the duration requirement. If so, then the claimant is considered disabled.

         If not, the ALJ must determine the claimant's RFC, which is “the most [a claimant] can still do despite [his] limitations, ” 20 C.F.R. § 416.945(a)(1). The ALJ then moves to step four and determines whether the claimant's RFC allows him to perform his past relevant work. If the claimant has the RFC to perform his past relevant work, then he is not disabled. If the claimant does not, the ALJ decides, at step five, whether the claimant can do other work in light of his RFC, age, education, and work experience. If the claimant can, he is not considered disabled; otherwise, he is. “Once the applicant has met his or her burden at Step 4 to show that he or she is unable to do past work due to the significant limitation, the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the applicant can still perform.” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001); see also 20 C.F.R. §§ 416.912(b)(3), 416.960(c)(2).

         B. The Initial Rejection and the ALJ's Decision

         In a July 10, 2015, written decision, structured around the five-step sequential evaluation process, the ALJ found plaintiff was not disabled under the Social Security Act. At the first step, he determined that plaintiff had not engaged in substantial gainful activity since November 15, 2013, the date on which he filed his SSI application. Next, at step two, he found that plaintiff has the following severe impairments: ligament reconstruction and tendon interposition of the left thumb capo-metacarpal joint, mild compression deformity at ¶ 8 in the back, cervical and thoracic pain, depression, bipolar disorder, anxiety, and substance addiction disorder. See 20 C.F.R. § 404.1520(c). At step three, the ALJ nonetheless ruled that plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” R.[3] at 18. Before moving to step four, the ALJ determined plaintiff's RFC:

After careful consideration of the entire record, I find that the claimant has the following residual functional capacity: he could lift and carry 20 pounds occasionally and 10 pounds frequently; stand or walk for 6 hours; sit for 6 hours; occasionally climb ramps and stairs, but never climb ladders, ropes, and scaffolds; and occasionally balance stoop, kneel, crouch, and crawl. Further, work is limited to simple tasks; he could sustain attention and pace on simple tasks for 2 hours at a time over an 8-hour day, 40-hour week or equivalent work schedule with customary breaks; could adapt to occasional minor changes in work routines; and he could interact appropriately with coworkers and supervisors.

Id. at 20. The ALJ explained that he “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, ” and that he “also considered opinion evidence” in accordance with the Social Security regulations. Id. He ultimately concluded that although plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms . . . [his] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.” Id. at 21.

         At the fourth step, the ALJ concluded that the plaintiff has no past relevant work. Finally, at step five, the ALJ determined, based on the VE's testimony, “that, considering the claimant's age, education, work experience, and residual functioning capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.” Id. at 29. The VE testified that the claimant could perform representative occupations such as cafeteria attendant, cleaner/housekeeper, and price ticket marker. Accordingly, the ALJ concluded that the claimant was not disabled.

         C. ...

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