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Dorow v. Berryhill

United States District Court, D. Massachusetts

March 30, 2018

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



         This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration (the “Commissioner” or “SSA”) denying the application of Brian Dorow (“Plaintiff”) for Social Security Disability Insurance Benefits. Plaintiff filed a motion (Docket No. 18) seeking a reversal of the Commissioner's decision. The Commissioner filed a cross-motion seeking an order affirming the decision of the Commissioner (Docket No. 16).[2] For the reasons set forth below, Defendant's motion is granted and Plaintiff's motion is denied.


         The parties are familiar with the factual history of this case, the standard of review, and the applicable five-step sequential analysis. Accordingly, the court will review the procedural and substantive history of the case as it relates to the arguments set forth by the Plaintiff.

         Plaintiff applied for DIB and SSI on November 13, 2013 (Tr. 77, 78). He alleged disability beginning July 18, 2008, due to severe anxiety, depression, back pain, and high blood pressure (Tr. 233, 237). His applications were denied initially and upon reconsideration (Tr. 77- 78, 97-98). After a March 2, 2015 hearing, the ALJ issued an unfavorable decision on April 16, 2015 (Tr. 10, 26). The Appeals Council declined to review, and the ALJ's decision became final on June 15, 2016 (Tr. 1). Plaintiff has exhausted his administrative remedies, and this case is now ripe for review under 42 U.S.C. §§ 405(g) and 1383(c)(3)

         The ALJ's Findings

         At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since July 18, 2008, his alleged onset date (Tr. 16). At step two, the ALJ found Plaintiff had the following severe impairments: affective disorder; anxiety disorder; cannabis abuse (Tr. 16). At step three, the ALJ determined Plaintiff's impairments did not meet or medically equal any condition in the Listing of Impairments (Tr. 16). Next, the ALJ found Plaintiff had the following RFC:

[T]he claimant has the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant must perform unskilled tasks, work with simple work-related decisions and few workplace changes. The claimant can tolerate minimal interaction with the general public and occasional interaction with co-workers and supervisors. (Tr. 18).

         At step four, the ALJ found Plaintiff able to perform past relevant work as a packager (Tr. 20). Accordingly, the ALJ found Plaintiff not disabled (Tr. 21).

         In seeking to reverse the decision, Plaintiff argues that the ALJ erred because the he did not properly rely on opinion evidence in forming Plaintiff's Residual Functional Capacity (RFC) did not match a single expert's opinion, specifically that the RFC did not contain any limitations relating to Plaintiff's alleged deficits in pace, to which Plaintiff testified and Dr. Carter noted. Plaintiff also contends that the ALJ erred by failing to consider a determination by the Commonwealth of Massachusetts that Plaintiff was disabled for purposes of receiving Emergency Assistance to the Elderly, Disabled, and Children (“EAEDC”) benefits.

         Failure to Consider Pace Limitation in RFC Assessment

         An RFC assesses what a claimant “can still do despite [his] limitations.” 20 C.F.R. §§ 404.1545(a), 416. 945(a). The claimant has the burden of providing evidence to establish how her impairments limit her RFC. Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). It is the duty of the ALJ to determine a claimant's RFC based upon the entire record. See 20 C.F.R. §§ 404.1545, 404.1546. In assessing an RFC, the ALJ can “piece together the relevant medical facts from the findings and opinions of multiple physicians.” Evangelista v. Secretary of Health and Human Services, 826 F.2d 136, 144 (1st Cir. 1987).

         Plaintiff argues that the ALJ erred because he ignored medical evidence and the opinions of state agency consulting physicians and did not assess more limitations to his RFC to account for Dr. Carter's opinion on Plaintiff's speed on the issue of pace. Plaintiff also contends that the ALJ was bound by Dr. Carter's opinion. He asserts, “Dr. Carter was the only acceptable medical source to provide an opinion concerning [Plaintiff's] abilities with respect to productivity and speed, i.e., persistence and pace, ” and therefore, it was error for the ALJ to form the RFC absent a reference to Plaintiff's pace absent contradicting medical evidence.

         In his decision, the ALJ twice makes reference to Dr. Carter's assessment from March 2014, noting Dr. Carter's mention of speed of performance on the job. The ALJ found that the Plaintiff's alleged symptoms and the severity of them taken largely from his recent testimony and is not entirely supported by the medical evidence or record; he has received little in the way of actual treatment. (Tr. 19-20). While the ALJ in fact noted the Plaintiff's alleged productivity and speed issues, he did not find them to be supported by the record and accordingly, afforded them only moderate weight.[3] (Tr. 20). An ALJ is expected to be guided by a physician's or other expert analysis of the claimant's functional capacity, “unless the claimant has such minimal impairment that it obviously poses no ...

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