United States District Court, D. Massachusetts
MIGUEL A. GONZALEZ, Plaintiff,
NANCY A. BERRYHILL,  in her official capacity as Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
H. Hennessy United States Magistrate Judge.
Order of Reference dated May 16, 2017, pursuant to 28 U.S.C.
§ 636(b)(1)(B), District Judge Hillman referred this
Social Security appeal to me for a Report and Recommendation.
Docket #25. Plaintiff Miguel Gonzalez has moved to reverse
the decision of Defendant, the Commissioner of the Social
Security Administration (“the Commissioner”),
denying Gonzalez Supplemental Security Income
(“SSI”). Docket #17. In the alternative, Gonzalez
asks that the Court remand his application for SSI benefits
to an Administrative Law Judge (an “ALJ”).
Id. The Commissioner has cross-moved to affirm the
Commissioner's denial of Gonzalez's application.
considered the parties' submissions, for the reasons that
follow, I RECOMMEND that Plaintiff's Motion to Remand,
Docket #17, be DENIED and that Defendant's Cross-Motion
for Order Affirming the Decision of the Commissioner, Docket
#22, be ALLOWED.
applied for SSI on March 29, 2013. Tr. 153. He alleged
disability due to severed fingers on his right hand caused by
an industrial accident, carpal tunnel syndrome in his left
hand, and right shoulder and elbow pain. Tr. 332. His
application was denied initially and upon reconsideration.
Tr. 153, 162. After hearings on August 6, 2014 and February
10, 2015, an ALJ issued a decision on June 26, 2015 finding
that Gonzalez was not disabled. Tr. 9-36, 58.
August 1, 2016, the Appeals Council denied Gonzalez's
request for review, making the ALJ's June 26, 2015
decision final and ripe for judicial review. Tr. 1-4. Having
timely pursued and exhausted his administrative remedies
before the Commissioner, Gonzalez filed the instant complaint
with this Court on September 16, 2016. Docket #1. Gonzalez
filed a motion for reversal or remand on December 29, 2016,
Docket #17, together with an accompanying memorandum of law,
Docket #18. In response, the Commissioner filed a
cross-motion to affirm, Docket #22, along with a memorandum
of law, Docket #23. Gonzalez has opposed the
Commissioner's motion to affirm. Docket #24.
was thirty-five years old when he applied for SSI.
See Tr. 153, 328. He last worked in 2001 in
carpentry, stopping after suffering an industrial accident.
Tr. 68-69. He is a high school graduate. Tr. 333. Gonzalez
lives with his wife and two young children. See Tr.
75. He has never had a driver's license and relies on
family members for transportation. Tr. 76.
January 16, 2001, Gonzalez injured his right hand while
operating a saw at work. Tr. 68-69. The saw amputated the
third, fourth, and fifth fingers of his right hand and
injured his right index finger. Tr. 118. Only Gonzalez's
fourth and fifth fingers were surgically reattached, and the
middle joint of his fourth finger was fused. Tr. 69-70, 118.
March 3, 2004, Gonzalez began treatment with his former
primary care physician, Dr. Jesus Blanco, and complained of
severe pain in his right arm, elbow, and fingers. Tr. 125.
Gonzalez reported having previously undergone four
reconstructive surgeries on his right hand. Tr. 125. This
statement is the only indication in the record of treatment
prior to 2004.
September 27, 2004, Gonzalez presented at an emergency room
with a fractured right fifth finger. Tr. 121. The hospital
observed swelling in Gonzalez's right hand and noted
evidence of previous trauma to that hand, including
“amputation of the middle finger, fusion of the ring
PIP and fracture of the index PIP middle phalanx.”
See Tr. 118-21. Gonzalez was placed in a short arm
cast and prescribed Vicodin. Tr. 118, 121.
record indicates that Gonzalez visited Dr. Blanco two other
times in 2004 and twice more in 2005. Tr. 123-125. During
those appointments, Gonzalez complained of pain and numbness
in his right hand. Tr. 123-25. In 2005, Dr. Blanco prescribed
Percocet and referred Gonzalez to hand surgeon Dr. James
Shenko. Tr. 123.
March 14, 2005, Gonzalez began treatment with Dr.
Shenko. Tr. 391. In 2007, Dr. Shenko diagnosed
Gonzalez with right ulnar neuropathy and performed an ulnar
nerve transposition surgery. Tr. 484. On December 4, 2007,
Dr. Shenko wrote a letter to Dr. Blanco detailing
Gonzalez's condition following the transposition surgery.
Tr. 393. Dr. Shenko stated that Gonzalez's “motor
strength appears intact along with his sensation. His hand is
structurally the same with preserved function.” Tr.
393. Dr. Shenko also noted that Gonzalez was still
complaining of pain in his right hand and elbow, but Dr.
Shenko noted that “it is unclear what the etiology of
[Gonzalez's on]going pain is.” Tr. 393. Dr. Shenko
opined that Gonzalez may have sustained neurological damage
as a result of his right hand injury or nerve impingement in
his neck or shoulder; Dr. Shenko therefore recommended that
Gonzalez seek treatment from a pain clinic. Tr. 393. Dr.
Shenko also stated that he had “no plans for any
further treatment o[f] this patient at this time.” Tr.
2007, Gonzalez visited Dr. Michael Gotthelf for a
neurological exam. Tr. 465-67. After performing a nerve
conduction study and an EMG, Dr. Gotthelf diagnosed Gonzalez
with “bilateral carpal tunnel syndrome, very mild,
worse on the [r]ight.” Tr. 467. He also conducted a
physical exam and observed that Gonzalez's right fourth
and fifth fingers “show grade 3/5 weakness of finger
flexion, abduction, and adduction.” Tr. 465.
treatment notes indicate that Gonzalez visited Dr. Blanco a
total of six times during 2007 and 2008. Tr. 402-404. During
that time, Dr. Blanco continued prescribing Percocet for
chronic pain management, and Gonzalez engaged in physical
therapy twice per week. Tr. 395, 402. Dr. Blanco remained
Gonzalez's primary care physician until 2008. Tr. 387;
see Tr. 380-81.
Shenko's recommendation, on March 24, 2008, Gonzalez
presented at the UMass Memorial Medical Center. Tr. 394-95,
399. He complained of moderate to severe pain in his right
shoulder and reported taking Percocet. Tr. 394. He also
reported having previously undergone “seven
reconstructive surgeries in his right hand . . . .” Tr.
394. The clinic physician noted that Gonzalez “seems to
have . . . neuropathic pain affecting his right upper
extremity, ” and he also observed that Gonzalez had
“full range of motion of bilateral upper and lower
extremities” and “4/5 motor strength [in the]
right upper extremity.” Tr. 394. The physician opined
that Gonzalez was “a candidate for chronic opiate
therapy” and expressed his belief that “a mistake
was made” when Gonzalez discontinued opiate use. Tr.
394. However, the physician noted that “we do not
prescribe opiates at our clinic” and recommended that
Gonzalez seek opiate treatment elsewhere. Tr. 394, 399.
October 15, 2008, Gonzalez began treatment with his current
primary care physician, Dr. Thomas Weisman. See Tr.
380-81. He complained of right hand and elbow pain during
that visit. Tr. 380.
two years later, on August 24, 2010, Gonzalez visited Dr.
Gotthelf for a second neurological exam. Tr. 420-23. Dr.
Gotthelf diagnosed Gonzalez with “Right Ulnar nerve
entrapment at the Cubital Tunnel” and “Bilateral
Carpal Tunnel Syndrome, mild.” Tr. 423. He observed
during a physical exam that Gonzalez had “Grade 4/5
weakness of abduction of the 2nd, 4th and 5th fingers”
of the right hand but exhibited normal reflexes and
sensation. Tr. 420.
October 2, 2010, Dr. Shenko performed a second ulnar nerve
transposition surgery. See Tr. 449. Dr. Shenko
examined Gonzalez after this procedure and reported his
evaluation to Dr. Weisman by letter dated October 6, 2010.
Tr. 462. Dr. Shenko noted that Gonzalez continued to report
numbness and pain in his right hand and arm that
“radiates up to his elbow and up into his neck . . .
.” Tr. 462. Dr. Shenko observed that while Gonzalez
“has decreased ulnar strength in [his right] hand, and
decreased sensation in the fourth and fifth digits, ”
his right hand and wrist were “structurally
stable” and “stable to stress loading.” Tr.
462. Dr. Shenko concluded that Gonzalez “has chronic
pain from his previous injuries, but now has an overlying
symptomatic nerve injury.” Tr. 462. Dr. Shenko opined
that Gonzalez might need additional surgery. Tr. 462.
record indicates that Gonzalez visited Dr. Weisman six times
in 2010 for routine checkups. Tr. 459-61. Gonzalez continued
reporting pain in his right hand and elbow, and Dr. Weisman
prescribed Percocet and gabapentin for pain management. Tr.
459-61. Gonzalez then visited Dr. Weisman four times in 2011,
still complaining of pain in his right fingers and elbow as
well as an injury to his knee from a fall. Tr. 455-59. In
August 2011, Dr. Weisman noted “no change in
[Gonzalez's] chronic right upper extremity pain”
but observed that “Percocet helps him tolerate the
pain.” Tr. 456. At an appointment on December 14, 2011,
Dr. Weisman reported that Gonzalez “is still having
pain in his right elbow and right fourth and fifth
fingers” and showed “decreased sensation and grip
in the right hand.” Tr. 455. Dr. Weisman diagnosed
Gonzalez with chronic pain syndrome and recommended
continuing narcotic therapy. Tr. 455.
December 14, 2011, Dr. Weisman completed his first assessment
of Gonzalez's residual functional capacity
(“RFC”). Tr. 377-78. Dr. Weisman opined that
Gonzalez could not lift or carry with either arm and
indicated that he could only “rarely” reach, use
hand controls, grasp, use fine finger manipulation, and feel
with his fingers. Tr. 377-78. Dr. Weisman placed a question
mark in the section asking how often Gonzalez could
“use bilateral manual dexterity.” Tr. 378.
2012, Gonzalez visited Dr. Weisman in February, May, June,
and September. Tr. 447-454. During that time, Gonzalez
reduced his use of Percocet from five times per day to four,
and Dr. Weisman noted “reasonable control” of
Gonzalez's right chronic upper extremity pain with
Percocet. Tr. 447. In May of 2012, Dr. Weisman observed that
Gonzalez was “able to extend and flex his fingers with
some difficulty” and “is able to fully flex and
extend his elbow.” Tr. 451. However, the next month,
Dr. Weisman observed that Gonzalez had “decreased
sensation in his right fourth and fifth fingers compared to
the left [hand]” as well as “decreased hand grasp
[strength] with his right hand.” Tr. 449. Dr. Weisman
also noted that Gonzalez had undergone “ten operations
on his right hand and right elbow” by 2012. Tr. 453.
January 3, 2013, Gonzalez reported worsening pain control,
and Dr. Weisman added a prescription for MS Contin. Tr. 446.
Dr. Weisman also recommended that Gonzalez seek a second
opinion regarding the “management of his upper
extremity chronic pain and neuropathy syndrome.” Tr.
January 18, 2013, Gonzalez sought a second opinion from Dr.
Thomas Breen, reporting finger pain and numbness as well as
“pain shooting up his arm and tenderness over his
elbow.” Tr. 444. Dr. Breen observed stiffness in
Gonzalez's fingers and wrist and numbness and pain in the
fourth and fifth fingers of Gonzalez's right hand. Tr.
444. Given Gonzalez's extensive surgical history, Dr.
Breen postponed a diagnosis pending the results of an EMG and
MRI. Tr. 444.
his annual physical with Dr. Weisman on February 1, 2013,
Gonzalez reported improved pain management while on MS Contin
and Percocet. Tr. 442. Dr. Weisman noted that Gonzalez was
awaiting further follow-up by Dr. Breen and described
Gonzalez's pain syndrome as “[u]nder reasonable
control, currently undergoing further evaluation.” Tr.
443. An EMG in February 2013 showed “no abnormalities
in the right ulnar nerve and normal function of the left
ulnar nerve.” Tr. 441; see Tr. 480-83.
2013, Gonzalez stopped taking his prescribed narcotics, and
Dr. Weisman observed that Gonzalez was experiencing
withdrawal symptoms. Tr. 441. Dr. Weisman concluded that
Gonzalez had “exhausted my repertoire of medications
and interventions” and urged Gonzalez to continue
working with Dr. Breen and perhaps other physicians to
reevaluate his pain management. Tr. 441. On June 6, 2013,
Gonzalez reported “suffering since stopping his
narcotics” six weeks earlier. Tr. 440. Dr. Weisman
noted that Gonzalez had completed opioid withdrawal by this
time and that Gonzalez's hand and elbow were now in
“constant” pain. Tr. 440. Dr. Weisman agreed to
Gonzalez's request to resume pain medication, remarking
that Gonzalez “has never abused drugs since I have
known him.” Tr. 440. During a follow-up appointment
later that month, Gonzalez reported having resumed taking
Percocet but nonetheless complained of pain in his right hand
that on “some days” was “constant.”
Tr. 439. Dr. Weisman observed some swelling in Gonzalez's
right hand and hypersensitivity in his right fingers but
noted full range of motion in Gonzalez's elbow and
wrists. Tr. 439. Dr. Weisman repeated his diagnosis of
general chronic pain syndrome in the upper right extremity
and questioned the possibility of reflex sympathetic
dystrophy. Tr. 439.
followed up with Dr. Breen on July 9, 2013. Tr. 438. Dr.
Breen stated that Gonzalez reported discomfort in his elbow
and had a “markedly positive Tinel['s] sign”
proximal to the cubital tunnel. Tr. 438. Dr. Breen noted that
Gonzalez's MRI indicated “a compressive
neuritis” at the same site, though an EMG was normal.
Tr. 438. Dr. Breen opined that Gonzalez “would be a
candidate for informal ulnar nerve decompression and anterior
submuscular transposition” surgery. Tr. 438. After
discussing these procedures with Gonzalez, Dr. Breen
scheduled them for September 2013. Tr. 438. Before the
surgery, during a follow-up appointment on July 26, 2013, Dr.
Weisman observed that Gonzalez's pain was
“[r]easonably controlled” and described
Gonzalez's chronic pain syndrome as “adequately
managed.” Tr. 437.
Breen performed ulnar nerve decompression and anterior
intermuscular transposition surgery on September 4, 2013 at
UMass Memorial. Tr. 468-469. The procedure was performed
without complications. Tr. 468-69. Gonzalez's
preoperative and postoperative diagnoses were “[r]ight
cubital tunnel syndrome.” Tr. 468. Gonzalez reported to
UMass Memorial's rehabilitation services on September 17
for an evaluation with occupational therapy, but Gonzalez
then failed to follow up with occupational therapy until
October 15, 2013. Tr. 506. On October 15, Gonzalez reported
“some discomfort” post-surgery; Dr. Breen
encouraged him to continue occupational therapy. Tr. 492.
Gonzalez was reassessed by rehabilitation services at that
time, but he then “canceled or no showed 2 visits
within the next following 3 visits [sic].” Tr. 506.
Gonzalez's final occupational therapy appointment was
November 14, 2013. Tr. 507. During that visit, Gonzalez
reported a pain level of “6/10 at the surgical
site” and stated that “he is able to bathe and
dress himself, [but he] still [has] difficulty with heavy
activities.” Tr. 507. The occupational therapist
assessed Gonzalez's range of motion at the elbow as
“within normal limits” and noted that
Gonzalez's “[g]rip strength on the right is 5
pounds, [and] right lateral [is] 4 pounds.” Tr. 507.
November 2013, Gonzalez reported to Dr. Weisman that he
remained in chronic pain in his right arm and believed
“his pain could be better managed.” Tr. 493. Dr.
Weisman observed swelling in Gonzalez's elbow and decided
later that month to add two daily doses of Oxycontin 10 mg to
Gonzalez's narcotic regimen. Tr. 495, 498.
January 7, 2014, Gonzalez followed up with Dr. Breen and
reported “us[ing] his arm a little but more” and
taking “occasional pain meds.” Tr. 496. Dr. Breen
noted that Gonzalez was “making slow, but steady
progress” and observed that Gonzalez's elbow was
“less tender” than previously. Tr. 496. Dr. Breen
opined that it would “probably take another 3-6 months
for [Gonzalez] to reach his maximal medical
improvement.” Tr. 496. Dr. Breen reported to
rehabilitation services that Gonzalez's “problems
were resolved and [he] had no issues” and that Gonzalez
“d[id] not have any [occupational therapy] needs”
at that time. Tr. 506-07. Gonzalez was therefore discharged
from occupational therapy on January 7. Tr. 506.
February 7, 2014, Gonzalez visited Dr. Weisman for an annual
physical. Tr. 499-500. Dr. Weisman repeated the diagnoses of
cubital tunnel syndrome and chronic pain syndrome in the
right upper extremity, but he noted that Gonzalez “has
done well” and exhibited “some increasing
movement in his right hand fingers.” Tr. 499-500.
Gonzalez reported increased movement of his right fingers but
“no better control of his pain.” Tr. 499. Dr.
Weisman agreed to increase Gonzalez's Percocet regimen
from twice per day to three times per day. Tr. 499.
a follow-up appointment in May 2014, Gonzalez reported still
experiencing pain and intermittent swelling in the fourth and
fifth fingers of his right hand. Tr. 501. Gonzalez also
complained of feeling “somewhat overwhelmed with the
responsibilities of raising two kids” and with
“doing housework and trying to take care of things with
no break.” Tr. 501. However, Dr. Weisman noted that
“for the first time since I have known [Gonzalez, ] his
right elbow pain is better . . . . This is a new improvement
status post his surgery.” Tr. 501. Dr. Weisman opined
that Gonzalez's chronic pain syndrome was “somewhat
improved after surgery, ” though Gonzalez still had
“a lot of symptoms” in his hands, particularly
the “fourth and fifth fingers of the right hand.”
Tr. 501. Dr. Weisman also noted that Gonzalez “will
continue his current narcotic regimen.” Tr. 502.
returned to UMass Memorial on June 10, 2014 for a nine-month
follow-up on his right ulnar nerve decompression and
transposition surgery. Tr. 503-05. Dr. Breen again observed a
positive Tinel's sign over the cubital tunnel and opined
that Gonzalez's condition was “not entirely
improved.” Tr. 503. However, Gonzalez reported
“that the pain is slightly improved, ” and Dr.
Breen noted that Gonzalez was making “some slow
progress” since his most recent surgery. Tr. 503. Dr.
Breen predicted that Gonzalez “should continue to
improve over the next 6 months or so” and scheduled
another follow-up appointment in six months' time
“unless he is doing well.” Tr. 503-04.
21, 2014, Dr. Weisman completed his second assessment of
Gonzalez's residual functional capacity. Tr. 517-18. Dr.
Weisman opined that Gonzalez could not use his right hand to
lift and/or carry. Tr. 517. He also stated that Gonzalez
could not use his right hand to perform any of the following
activities: climb, reach, use hand controls, grasp, use
bilateral manual dexterity, use fine finger manipulation, and
feel with his fingers. Tr. 518.
State Agency Opinions
6, 2013, Dr. Erik Purins, M.D., reviewed the record and found
that Gonzalez had severe impairments of peripheral neuropathy
and obesity. See Tr. 156-59. Dr. Purins opined that
Gonzalez could occasionally lift and/or carry twenty pounds,
frequently lift and/or carry ten pounds, stand and/or walk
(with normal breaks) for a total of about six hours in an
eight-hour workday, sit (with normal breaks) for a total of
about six hours in an eight-hour workday, and had limited
ability to push and/or pull in both upper extremities. Tr.
157-58. Dr. Purins stated that Gonzalez was limited in
handling in both hands and that Gonzalez's ability to
grasp and twist was limited to only occasional bilaterally,
but that his ability to reach, finger, or feel was unlimited.
Tr. 158. Dr. Purins indicated that Gonzalez should avoid
concentrated exposure to vibration and hazards. Tr. 159.
September 25, 2013, Dr. K. Malin Weeratne, M.D. reviewed the
record and found that Gonzalez was limited to the same extent
as found by Dr. Purins. Tr. 167-70.
August 6, 2014, ALJ Kim K. Griswold presided over an
administrative hearing. Tr. 58-115. Gonzalez was represented
by counsel, and a Vocational Expert (a “VE”) gave
testimony. Tr. 58-115. ALJ Griswold also held a supplemental
hearing on February ...