United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
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.
Statutory and Regulatory Framework: Five-Step Process to
Evaluate Disability Claims
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
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.
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
Seavey, 276 F.3d at 5 (citing 20 C.F.R. §
was born on June 4, 1968. [R. 38]. 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].
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].
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.
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.
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.
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].
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
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].
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 ...