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Brownell v. Berryhill

United States District Court, D. Massachusetts

June 27, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This is an appeal of a final decision of the Commissioner of the Social Security Administration (“SSA”) denying the application of plaintiff Charles Brownell for Social Security Disability Income (“SSDI”) benefits. Brownell 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, he contends that the administrative law judge (“ALJ”) failed to properly assess his residual functional capacity (“RFC”) and improperly relied on the testimony of an unreliable vocational expert. He further contends that remand is warranted in order to permit the ALJ to make a proper finding of disability.

         Brownell has moved to reverse the decision of the Commissioner, and defendant has cross-moved to affirm the decision of the Commissioner. For the reasons stated below, the decision will be affirmed.

         I. Background

         A. Factual Background

         1. Medical Records

         Charles Brownell was 50 years old on October 31, 2010, the time he contends his disability began. (A.R. 20, 425).[1] He at least began 9th grade, but did not graduate from high school. (A.R. 70, 301) He has no specialized job training, nor did he attend trade or vocational school. (A.R. 301). He served in the military from February 1980 to December 1985. (A.R. 262). He has previously worked as a day laborer, shelf stocker, roofer, framer, forklift driver, and bending machine operator. (A.R. 301, 307, 309-20, 339-46). He was last gainfully employed in October 2012, stocking dairy aisles part-time at a Shaw's supermarket; he was let go because he would miss dates on milk containers, and could not complete his tasks on time. (A.R. 369, 908, 1018). Prior to being laid off, he reported annual earnings just below $3, 760. (A.R. 284). He is not currently working and not earning any income. (A.R. 290-92). He resides in Tyngsborough, Massachusetts, with his wife. He has a son, a daughter, and a granddaughter. (A.R. 331-32).

         Brownell reported a knee impairment in October 2007, when he went to the emergency room reporting knee pain that had started after running and had kept him awake at night for two weeks. (A.R. 564-65, 573). An x-ray revealed small degenerative spurs, compatible with minimal osteoarthritis. (A.R. 24, 580). He was diagnosed with tendinitis and a sprain. (A.R. 563). He was prescribed Percocet and limited activity for seven days. (A.R. 563).

         From April to July 2008, Brownell visited his primary care provider, Dr. Nasim Ghaffar, complaining of tingling and numbness in both hands, possibly related to carpal tunnel syndrome. Dr. Ghaffar noted his history of chronic obstructive pulmonary disease (“COPD”) and asthma. (A.R. 710-14). Dr. Ghaffar referred him for an electromyography (“EMG”), which reported positive for left cubital tunnel syndrome, although on examination he had normal sensation, normal grip, and normal range of motion. (A.R. 711). She prescribed ibuprofen, advised him to use splints, and noted that corticosteroid injections should be considered if the symptoms did not improve. (A.R. 714).

         In August 2008, Brownell had a motorcycle accident resulting in rib fractures for which he was treated. (A.R. 708). None of the relevant records mention any reported knee symptoms.

         In October 2008, Brownell applied for Emergency Aid to the Elderly, Disabled and Children (“EAEDC”) benefits, alleging COPD and shortness of breath. (A.R. 999). He indicated that his breathing issues affected his job because he could not keep up with the pace of work. (A.R. 1000).

         On December 13, 2008, Brownell was referred to Dr. Le M. Doan by the UMass Disability Evaluation Services for a psychodiagnostic interview after reporting anxiety attacks. (A.R. 1015). Dr. Doan noted that Brownell arrived well-groomed, but with a strong odor of alcohol. (A.R. 1017). She also noted that Brownell minimized his alcohol use, but that he had a past DUI. (A.R. 1016-17). Her “diagnostic impressions” included alcohol abuse, anxiety, and emphysema, with a global assessment of functioning (“GAF”) score of 68, in the mild range. (A.R. 1017). Brownell stated during his interview that the interference with his work was caused by his physical rather than psychiatric problems. (Id.).

         A January 2009 disability report from the UMass Medical School Center for Health Care Financing Disability Evaluation Services stated that Brownell was not then performing substantial gainful activity, and that his past work exceeded his current abilities. (A.R. 987, 993). The report addressed various issues affecting Brownell, including COPD, emphysema and asthma, gastroesophageal reflux disease (“GERD”), alcohol abuse, carpal tunnel syndrome, and anxiety attacks, but did not mention any knee impairment. (A.R. 988, 994). An RFC physical examination performed by Dr. Nathaniel Manning indicated that he was capable of light work with limitations for fumes, dust, odors, hazard, extreme hot or cold, and humidity, with environmental limitations not exceeding the full range of light work. (A.R. 992, 995-96). An RFC mental examination performed by Dr. Paul Kaufman indicated that he had no mental limitation that interfered with his ability to perform basic work in a competitive labor market. (A.R. 988, 991, 998).

         On August 24, 2010, Brownell completed a Masshealth Adult Disability Supplement form, which requested that he “[l]ist and describe all your medical and mental health problems.” (A.R. 972, 981). He responded “emphysema.” (A.R. 972). Brownell reiterated that he had trouble breathing and carrying weight. (A.R. 972). He stated that it was difficult for him to find work where he lived that was not roofing or building, and that he could no longer keep up with the type of activity these jobs required. (A.R. 972-73). He reported that he could “sit” and “stand” “all the time, ” but could “walk, ” “bend, ” “lift, ” or “reach” “not very often.” (A.R. 976). He was able to shop for food, plan meals, cook, wash dishes, do laundry, dust, make beds, empty the trash, and vacuum. (Id.). Consistent with that application, the agency's Massachusetts Continuing Disability Determination Review form, which is dated October 6, 2010, reported no improvement of his condition regarding his emphysema, COPD, asthma, GERD, carpal tunnel syndrome, rib fractures, forearm lacerations, and anxiety. (A.R. 962). No. additional conditions were listed. (A.R. 964). At the time, Brownell was not performing substantial gainful activity. (Id.).

         Brownell's medical records from the beginning of 2011 make no mention of knee problems. He saw Dr. Ghaffar for a medical assessment on June 30, 2011. (A.R. 700). He reported issues with hearing in both ears and memory loss. (A.R. 700-01). Dr. Ghaffar recommended an otolaryngologist (“ENT”) consultation for Brownell's hearing, and a neurology consultation for his memory loss. (Id.).

         In August 2011, Brownell saw Dr. Ghaffar again. (A.R. 690). Her notes indicate he was “[n]egative for joint stiffness, joint pain, joint swelling.” (Id.). She administered an abdominal ultrasound, which revealed a fatty infiltration of the liver with presumed area of sparing near the gallbladder fossa. (A.R. 450, 691). Dr. Ghaffar encouraged him to abstain from alcohol. (A.R. 691).

         In September 2011, Brownell saw Dr. Jason Viereck for a neurology consultation because of claimed memory loss. (A.R. 796-99). Dr. Viereck's notes briefly mention that Brownell reported “[p]ains in elbows, knees, ” but his physical examination at that time revealed normal tone, strength, sensation, and reflexes. (A.R. 796). An MRI of his brain was scheduled. (A.R. 796-97). The follow-up consultation in October 2011 revealed that the MRI results were normal. In speaking to Brownell, Dr. Viereck noticed that he exhibited symptoms consistent with ADD, and gave Brownell a prescription for Adderall. (A.R. 800). That same month, Brownell had an ENT consultation and was prescribed hearing aids. (A.R. 388-90).

         In January 2012, Brownell added knee pain, in addition to back pain and memory loss, to his Massachusetts disability claim. (A.R. 943-46, 954-55). He reported that his knee pain had started in the 1990s. (A.R. 954). He reported that he could no longer go on long walks or play sports because he would “get out [of] breath, ” and could no longer bend or lift because it hurt his knees and back. (A.R. 955). He also complained of short-term memory loss and difficulties concentrating. (Id.). He stated that he could not work because he would get “winded” easy, but could do some “limited light stuff.” (A.R. 959). He also mentioned that he suffered from confusion and memory loss, and had recently started treatment for it. (Id.).

         In June 2012, Brownell saw Dr. Benjamin Henkle, complaining of longstanding stiffness in his middle finger. (A.R 665). Brownell reported that his finger would stick when he opened it, but no more than once or twice a year, and that he wore a wrist support during work.[2] He reported that the pain had worsened recently and he had trouble closing his finger. (Id.). Dr. Henkle diagnosed trigger finger and referred him to Dr. Kevin Tomany, an orthopedic surgeon. (Id.).

         In July 2012, Brownell saw Dr. Joel Epstein, a consultative physician for the Massachusetts Rehabilitation Commission Disability Determination Services. The examination revealed no changes in his condition, as well as normal strength in upper and lower extremities, with a normal gait. (A.R. 650). Dr. Epstein noted that Brownell had tender knees and mild pain with no effusions and a full range of motion that could be consistent with early osteoarthritis. (Id.).

         Also in July 2012, Dr. Ghaffar referred Brownell to Dr. Sweta A. Desai, a lung specialist, because of his complaints of worsening shortness of breath and COPD. (A.R. 787-89). Dr. Desai diagnosed dyspnea. (A.R. 788). Brownell received chest x-rays and was scheduled for a follow-up appointment in August 2012, during which Dr. Desai assessed Brownell's asthma. (A.R. 790-92).

         In September 2012, Brownell saw Dr. William Krueger from the Massachusetts Rehabilitation Commission Disability Determination Services, who performed a disability determination examination. (A.R. 652-55). Brownell reported that the Adderall had helped his condition. (AR. 652). He stated that he could no longer work, and that this caused him stress because of his financial situation. (A.R. 653). During the examination, Dr. Krueger noted that he was oriented to person, place and time, except that he had the date off by several days. (Id.). He correctly identified the current president but not the former. (Id.). He remembered only one out of three items after ten minutes, and scored a 25 out of 30 on the mini-mental state examination (“MMSE”). (A.R. 653-54). Dr. Krueger diagnosed anxiety symptoms secondary to a medical condition and COPD, and assessed his GAF at 54. (A.R. 655).

         In December 2012, Brownell saw Dr. Desai again. (A.R. 793-95). Dr. Desai increased Brownell's asthma medication and recommended that he quit smoking. (Id.).

         In January 2013, Brownell was referred by Dr. Ghaffar to Dr. Samuel D. Gerber, an orthopedic surgeon, because of his complaints of ongoing pain in his knees. (A.R. 725). MRIs of both of Brownell's knees revealed moderate to severe patellofemoral arthritis and degenerative signal of the medial meniscus. (A.R. 719, 723, 882). He was prescribed physical therapy, which apparently was ineffective. (A.R. 724, 726).

         On February 6, 2013, Dr. Gerber performed arthroscopic surgery on Brownell's left knee at Lowell General Hospital. (A.R. 739). The operative report confirmed stage four patellofemoral arthritis and grade two cartilage changes. (A.R. 754). Dr. Gerber continued treating Brownell after the surgery, and administered methylprednisolone shots in both knees. (A.R. 303, 717-19).

         In May 2013, in connection with Brownell's continuing Massachusetts EAEDC benefits review, Dr. Manning determined that he was capable of performing a range of sedentary work activities, but given his age, education, and skills, he was considered disabled by the state. (A.R. 912, 914-15).

         Brownell first applied for SSI in January 2013 and SSDI in February 2013, citing emphysema, COPD, memory loss, and arthritis in both knees. (A.R. 20, 111, 125).

         In August 2013, Brownell saw Dr. Robert Sampson for a mental-health examination related to his Social Security application. (A.R. 734-37). He reported that Adderall had helped his short-term memory initially but was no longer working. (A.R. 737). He had the date wrong by five days. (A.R. 736). He remembered three out of three items after five minutes, and scored a 29 out of 30 on the MMSE. (Id.). He reported feeling depressed because of his financial issues. (A.R. 737). Dr. Sampson assessed that Brownell was able to understand, follow, and remember simple instructions, with minimal impairment in responding to routine work pressures in a competitive work environment. (Id.). His GAF was assessed at 60. (Id.).

         The initial disability-determination explanations show physical and mental impairments as of January 7, 2013. (A.R. 111-23 (SSDI); A.R. 125-38 (SSI)). Dr. John Manuelian assessed Brownell's RFC as being able to occasionally lift twenty pounds, frequently lift ten pounds, stand or walk with normal breaks for a total of four hours, and sit for six hours out of an eight-hour work day. (A.R. 120-22, 135-36). He also found that Brownell could occasionally climb stairs or ladders, balance, stoop, kneel, and crouch. (Id.). Those findings are consistent with the RFC maximum sustained work capability of sedentary. (A.R. 138). Dr. Robert Lasky, a state agency psychological consultant, found that his mental impairments, including organic mental disorders and affective disorders, were mild. (A.R. 119, 133).

         The SSA concluded that there was insufficient evidence of disability as of December 31, 2010, the date he was last insured. (A.R. 122, 136). However, because of his age, he was found disabled as of January 2013, with no expectation of medical improvement. (A.R. 138-39).

         Brownell requested reconsideration of the denial of his SSDI benefits, but did not allege any changes in his condition. (A.R. 142, 146). In January 2014, Dr. Judith Clementson, a state agency psychological consultant, assessed Brownell's file. (A.R. 147-49). She took into account the prior assessments by Dr. Sampson in August 2013, by Dr. Krueger in September 2012, and Dr. Ghaffar in 2011. (A.R. 143-45). She rated Brownell's affective disorders and ADD as non-severe. (A.R. 147). She indicated that there was not enough evidence to determine whether he was disabled as of the date he was last insured, December 31, 2010, and affirmed the initial determination. (A.R. 147, 149).

         In June 2014, Brownell saw Dr. Ghaffar again, reporting depression and anxiety. (A.R. 826). He was prescribed Zoloft and Xanax, and was referred to a psychiatry consultation for depression. (A.R. 827). Brownell reported feeling well and without complaints on medication at his follow-up appointment with Dr. Ghaffar in September 2014, and asked to discontinue Zoloft. (A.R. 819). ...

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