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Viveiros v. Berryhill

United States District Court, D. Massachusetts

June 20, 2018

NANCY A. BERRYHILL, [1] Defendant.



         On August 17, 2010, Plaintiff Armando Viveiros (“Mr. Viveiros” or “Claimant”) brought an action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of the Social Security Administration (the “Commissioner”), which denied his claim for Social Security Disability Insurance (“SSDI”). See Viveiros v. Astrue, No. 10-cv-11405-JGD (D. Mass. Aug. 17, 2010), ECF No. 1. On February 23, 2012, Magistrate Judge Judith G. Dein remanded the case for further proceedings. See Viveiros v. Astrue, No. 10-11405-JGD, 2012 WL 603578 (D. Mass. Feb. 23, 2012). Thereafter, the Commissioner denied Claimant's SSDI claim and Claimant filed this action on August 6, 2015. [ECF No. 1]. Currently pending before the Court are Claimant's motion to reverse the Commissioner's decision denying his disability benefits [ECF No. 22], and the Commissioner's cross-motion for an order affirming the decision. [ECF No. 27]. For the reasons described herein, the Court finds that the Administrative Law Judge's (“ALJ”) decision was supported by substantial evidence and therefore DENIES Claimant's motion to reverse and remand and ALLOWS the Commissioner's motion to affirm.

         I. BACKGROUND

         A. Statutory and Regulatory Framework: Five-Step Process to Evaluate Disability Claims

         “The Social Security Administration is the federal agency charged with administering both the Social Security disability benefits program, which provides disability insurance for covered workers, and the Supplemental Security Income program, which provides assistance for the indigent aged and disabled.” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 42 U.S.C. §§ 423, 1381a (1998)).

         The Social Security Act (the “Act”) provides that an individual shall be considered to be “disabled” if he or she 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); see also 42 U.S.C. § 423(d)(1)(A). The disability must be severe, such that the claimant is unable to do his or her previous work or any other substantial gainful activity that exists in the national economy. See 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 416.905.

         When evaluating a disability claim under the Act, the Commissioner uses a five-step process, which the First Circuit has explained as follows:

All five steps are not applied to every applicant, as the determination may be concluded at any step along the process. The steps are: 1) if the applicant is engaged in substantial gainful work activity, the application is denied; 2) if the applicant does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the applicant's “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the applicant, given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey, 276 F.3d at 5 (citing 20 C.F.R. § 416.920).

         B. Factual Background

         Claimant was born on June 4, 1968. [R. 38].[2] He is married with two adolescent children and has a high school education. [R. 38]. Between 1990 and December 2002, Claimant worked as a delivery person, weaving machine operator, truck driver, and school bus driver. [R. 39-41, 130].

         On December 2, 2002, Claimant injured his back when he slipped and fell on ice and has not worked since that time. [R. 41, 275]. Claimant filed his application for SSDI benefits on February 28, 2008. [R. 100-06]. He alleged that he became disabled on December 2, 2002. [R. 41, 275, 1006]. His date last insured was December 31, 2005. [R. 1006]. He claims that he is disabled and unable to work due to severe and persistent back and leg pain, and due to depression and anxiety that he began experiencing as a result of the slip and fall incident. [R. 129, 178].

         C. Medical Evidence

         1. Physical Impairments

         On December 3, 2002, Claimant visited Charlton Memorial Hospital after he slipped and fell on ice and injured his neck and back. [R. 360-61]. Following the accident, Claimant experienced neck and back vertebral point tenderness and pain when moving his neck, but had normal sensation and motor function, normal range of motion in his extremities, and no hip tenderness. [R. 360-61]. On December 12, 2002, James Coleman, M.D. reviewed Claimant's spinal X-rays and performed a physical examination; he diagnosed Claimant with lumbar strain, preexisting L5 spondylolysis, cervical strain, and preexisting cervical degenerative disc disease. [R. 348]. During the physical examination, Dr. Coleman also observed good mobility of the cervical spine, no particular point tenderness, hypoactive reflexes of the upper extremities, intact motor power, and a slight restriction of motion of the lumbar spine. [R. 348]. Dr. Coleman opined that Claimant was, at that time, only capable of performing sedentary work. [R. 349]. On January 2, 2003, Dr. Coleman similarly noted that Claimant was only capable of performing “modified” work, but that none was available at his place of employment. [R. 347]. By January 16, 2003, Claimant's neck pain had greatly improved, but his back pain remained consistent and he had begun experiencing thigh pain. [R. 344-45]. He also demonstrated, on that date, good mobility of the cervical spine, slight restriction of complete flexion of the lumbar spine, intact gross motor power, and no sensory deficit. Id.

         On March 4, 2003, Claimant's primary care physician, Martin Miner, M.D., reported that Claimant complained of radicular lower back pain and cervical pain. [R. 913]. He noted that a MRI performed on February 5, 2003 showed L4-5 central and right paracentral disc herniation with impingement on the L5 nerve root and spondylolisthesis. [R. 327-28, 913]. Dr. Miner also recognized that Claimant was employed as the “head of the street crew for the City of Fall River, ” and that there was “no light duty” option at his job, as Claimant had to “do sanitation and cannot throw light barrels.” [R. 913]. Dr. Miner referred Claimant to Alvin Marcovici, M.D. in the neurosurgery department. [R. 913-14].

         On March 6, 2003, Claimant saw Dr. Coleman and described feeling pain in his lower back with some radiation in the right leg. [R. 338]. Dr. Coleman observed only a slight restriction of motion in the cervical spine, no particular point tenderness, hypoactive reflexes, excellent motor power, and no sensory deficit. Id. Dr. Coleman again advised that Claimant could perform “only modified work.” Id.

         On March 10, 2003, orthopedic surgeon Dr. DeWitt Brown, M.D. examined Claimant who was experiencing “ongoing discomfort involving his head, left side, headaches and cephalgia with some low back discomfort.” [R. 539]. Dr. Brown's physical examination showed that Claimant had no pain in his pelvic and shoulder rotation, some lower cervical discomfort, no vertebral, paravertebral, pelvic, or sciatic notch tenderness, and no muscle spasm. Id. Dr. Brown concluded that Claimant was capable of returning to his pre-injury duties. [R. 540].

         On March 18, 2003, Claimant saw Douglas Johnson, M.D. for residual pain in several areas. [R. 337]. Dr. Johnson observed that Claimant moved reasonably well with some guarding, but had no obvious neurologic deficits and intact reflexes, motor strength, and sensation. [R. 336-37]. Dr. Johnson remarked that he was “hopeful that eventually . . . [Claimant] [will be] back to full duty, full time work.” [R. 337]. According to Dr. Johnson, Claimant also agreed that he would be a good candidate for the spine rehabilitation program through which he would attempt to improve his flexibility, endurance, strength, and range of motion. Id.

         On April 1, 2003, Dr. Marcovici saw Claimant and reported that he had acute onset of severe back pain radiating down both lower extremities. [R. 984]. Physical examination revealed no neck tenderness, motor strength of five out of five in his upper and lower extremities, intact sensation, and normal motor function. Id. Noting that Claimant had not experienced significant improvement with physical therapy, Dr. Marcovici diagnosed Claimant with degenerative disc disease at ¶ 4-5 and L5-S1 with a small anterolisthesis at ¶ 5-S1, and gave him a referral for epidural steroid injections. [R. 985].

         On May 8, 2003, Claimant reported to Dr. Johnson that he was improving but still had significant back pain. [R. 333]. Dr. Johnson determined that Claimant would have difficulty performing full-duty work, and that he should restrict his lifting to between 11 and 25 pounds. [R. 333-34]. Although Dr. Johnson acknowledged that advancing Claimant back to full-duty work might be difficult, he agreed ...

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