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O'Brien v. Berryhill

United States District Court, D. Massachusetts

June 26, 2018

JAMES KEVIN O'BRIEN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO REVERSE OR REMAND AND DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

          F. Dennis Saylor IV United States District Judge

         This is an appeal of a final decision of the Commissioner of the Social Security Administration (“SSA”) denying the application of plaintiff James O'Brien for Social Security Disability Income (“SSDI”) benefits. O'Brien appeals the denial of his application on the ground that the decision is not supported by substantial evidence as required by 42 U.S.C. § 405(g). Specifically, O'Brien contends that the administrative law judge (“ALJ”) erroneously concluded that he was not disabled and failed to consider cervical injuries he suffered after December 31, 2012, the date he was last insured.

         Pending before this Court are plaintiff's motion to reverse or remand the decision of the Commissioner and defendant's motion to affirm the decision of the Commissioner. For the reasons stated below, the decision will be affirmed, and plaintiff's motion to reverse or remand will be denied.

         I. Background

         A. Factual Background

         1. Medical Evidence Prior to Date Last Insured

         James K. O'Brien was 51 years old on December 31, 2012, the date that he was last insured. (A.R. 280).[1] He dropped out of high school in the ninth grade. (A.R. 59). He lives with his wife, Faith. (A.R. 494). Prior to his injury, he worked as a carpenter. (A.R. 402-04). He last reported annual earnings of $18, 647.09 in 2007. (A.R. 277).

         On August 29, 2007, O'Brien went to the North Shore Medical Center after experiencing acute lower-back pain following heavy lifting at work. (A.R. 388). He denied having pain or tenderness in his spine. (Id.). A physical examination revealed low lumbar tenderness, but he walked with normal coordination and gait and had no neurological symptoms. (A.R. 388-89). He was prescribed Percocet and Valium and instructed to return if his symptoms worsened. (A.R. 389).

         On September 4, 2007, O'Brien saw Dr. Louis Casale complaining of severe back pain. (A.R. 396). Dr. Casale diagnosed an acute lumbar sprain and prescribed various pain medications and encouraged him to walk. (Id.). O'Brien returned the following week and reported that his pain was unchanged. During the follow-up visit, Dr. Casale recommended physical therapy and suggested a MRI could be appropriate. (A.R. 395). He also advised that O'Brien should not return to work, which would have required further heavy lifting. (Id.). After a few weeks, O'Brien reported that he felt the physical therapy helped. An MRI revealed mild intervertebral osteochondrosis with posterior bulging discs at the L2-L3 vertebrae. (A.R. 394, 397).

         In November 2007, O'Brien consulted with Dr. Peter Anas, an orthopedic surgeon. (A.R. 409). Dr. Anas conducted a physical examination, which revealed that O'Brien had limited forward flexion due to muscle spasms. (Id.). However, he could walk on his heels and toes, his motor and sensory functions were intact, and his straight leg raises were negative. (Id.). Dr. Anas diagnosed a lumbosacral strain and a probable annular tear. (Id.). Dr. Anas noted that O'Brien's long-term prognosis for recovery was excellent and that surgical intervention was not warranted. (Id.). In addition, Dr. Anas recommended a physiatry supervised rehabilitation and strengthening program. (Id.).

         In December 2007, O'Brien underwent another physical examination with Dr. Pradeep Suri. (A.R. 430-33). The examination was limited because O'Brien complained of pain. (A.R. 431). Dr. Suri assessed kinesophobia and major pain-avoidant behavior. (Id.) Dr. Suri encouraged O'Brien to increase his physical activity, and cleared him for return to work full time with the following restrictions: occasionally lift and carry up to 20 pounds; occasionally bend, squat, and climb; and frequently stand, walk, and sit. (A.R. 432). In addition, Dr. Suri noted that he became “quite agitated during discussion of [ ] work recommendations.” (Id.).

         In February 2008, O'Brien returned to Dr. Anas. Dr. Anas noted that his recovery was progressing but he remained unable to perform his regular work duties. (A.R. 408). Dr. Anas recommended further physical therapy. (Id.).

         At a May 2008 follow-up appointment, Dr. Anas noted that although O'Brien continued to complain of pain, he could walk on his heels and toes, and his deep tendon reflexes were normal. (A.R. 504). Dr. Anas diagnosed lumbar strain and spondylosis. (Id.). Dr. Anas recommended that O'Brien refrain from returning to full-time work, but cleared him for “modified light duty” involving lifting up to 25 pounds and avoiding repetitive lifting, bending, and carrying. (Id.). Dr. Anas repeated his findings in August and November 2008. (A.R. 503).

         In September 2008, O'Brien was examined by Dr. Matthew Gold, a neurologist. (A.R. 420-25). The examination revealed tenderness in a 2-3 centimeter area in O'Brien's left mid-lumbar paraspinal region. (A.R. 423). There was no reaction to straight leg raises, and O'Brien did not exercise excess caution when walking down the office steps. (A.R. 423-24). Dr. Gold concluded that O'Brien had chronic low-back pain that was largely myofascial in nature, but there was nothing to suggest radicular compromise and facet irritation was unlikely. (A.R. 424). Dr. Gold also agreed with Dr. Anas that while O'Brien's pain was limiting, he had not yet reached a medical end result or explored all treatment options. (A.R. 425).

         In January 2009, the Commonwealth of Massachusetts Division of Industrial Accidents instructed Dr. Daniel Bienkowski to evaluate O'Brien. (A.R. 415-19). Dr. Bienkowski's physical examination revealed tenderness at the lumbosacral junction and pain with straight leg raises. (A.R. 417). O'Brien had 5/5 motor strength in his legs and no sensory deficits. (Id.). Dr. Bienkowski diagnosed a lumbar strain, mild lumbar disc degeneration, and a possible annular tear at the L2-L3 vertebrae. (A.R. 418). Dr. Bienkowski concluded that O'Brien had a partial disability of unknown duration, but suggested he could lift up to 25 pounds; stand and walk; sit for 2-hour intervals; and not climb ladders or scaffolding. (Id.).

         O'Brien continued to see Dr. Anas every few months. (See, e.g., A.R. 400-04). During that period, O'Brien complained of daily pain in his back but exhibited no neurological symptoms. (Id.). In September 2010, Dr. Anas concluded that O'Brien was totally disabled from gainful employment due to lower back pain. (A.R. 400). He repeated that finding in March 2011. (Id.).

         In May 2011, O'Brien consulted with Dr. Richard Fraser. (A.R. 412-13). Dr. Fraser's physical examination revealed moderate muscle spasm in O'Brien's paralumbar muscles and moderate tenderness in his lumbar spine. (A.R. 413). Dr. Fraser concluded that O'Brien could lift up to 10 pounds; not sit, stand, or walk for long periods; not bend, squat, kneel, crawl, or engage in repetitive motions with his legs; and change positions every 10-15 minutes. (Id.). Dr. Fraser further stated that, in his professional opinion, O'Brien was totally disabled from any gainful employment for the foreseeable future. (Id.).

         In June 2012, O'Brien consulted with Dr. Maria Gorbovitsky of Disability Evaluation Services. (A.R. 560-61). Dr. Gorbovitsky diagnosed lumbar radiculopathy, but did not describe any specific functional limitations. (A.R. 561).

         In August 2012, Dr. Anas saw O'Brien again. (A.R. 497). Dr. Anas noted that he continued to suffer from lower back pain, but had no significant leg pain. (Id.). The neurological examination again showed no abnormalities. (Id.). Dr. Anas reasserted that O'Brien “remain[ed] disabled from gainful employment, ” but encouraged him to exercise. (Id.).

         In June 2013, O'Brien saw Dr. John Jao, an advising physician to Disability Determination Services. (A.R. 87). Dr. Jao observed that O'Brien had no focal neurological deficit and could heel and toe walk despite his claims of pain. (A.R. 86). A MRI showed a mild disc bulge, but the central canal and neuroforamen remained open and capacious. (Id.). Dr. Jao concluded that on or before his date last insured, O'Brien could perform light work. (A.R. 86-87). Based on those conclusions, Disability Determination Services found that O'Brien could occasionally lift/carry 20 pounds; frequently lift/carry 10 ...


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