United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO
REVERSE THE DECISION OF THE COMMISSIONER AND DEFENDANT'S
MOTION TO AFFIRM
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 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.
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
Brownell was 50 years old on October 31, 2010, the time he
contends his disability began. (A.R. 20, 425). 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).
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.
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).
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.
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.
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.).
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).
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.
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.).
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).
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).
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.
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. 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.
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.).
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).
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).
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.).
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.
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).
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).
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).
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.).
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).
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).
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).
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). ...