United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO
REVERSE OR REMAND AND DEFENDANT'S MOTION TO AFFIRM THE
DECISION OF THE COMMISSIONER
Dennis Saylor IV United States District Judge
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
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.
Medical Evidence Prior to Date Last Insured
K. O'Brien was 51 years old on December 31, 2012, the
date that he was last insured. (A.R. 280). 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).
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.
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).
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.).
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
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.).
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).
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).
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.).
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.).
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.).
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).
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.).
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 ...