United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION
FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION TO
AFFIRM THE DECISION OF THE COMMISSIONER (DOCKET NOS. 13 &
KATHERINE A. ROBERTSON, U.S. MAGISTRATE JUDGE
Sue Boardway ("Plaintiff") brings this action
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3)
seeking review of a final decision of the Acting Commissioner
of Social Security ("Commissioner") denying her
application for Social Security Disability Insurance Benefits
("DIB") and Supplemental Security Income
("SSI"). Plaintiff applied for DIB and SSI on July
21, 2014, alleging a May 3, 2013 onset of disability, due to
problems stemming from a variety of impairments, including:
fibromyalgia; degenerative disc disease ("DDD");
obesity; bursitis; migraines; asthma; plantar fasciitis;
osteoarthritis; depression; and attention deficit disorder
("ADD") (A.R. at 113, 454, 507). On February 25,
2016, the Administrative Law Judge ("ALJ") found
that Plaintiff was not disabled and denied her application
for DIB and SSI (id. at 302-319). The Appeals
Council remanded the case to the ALJ to explain the
discrepancy between Plaintiff's primary care
physician's ("PCP") opinion regarding
Plaintiff's limitations and the ALJ's determination
of Plaintiff's residual functional capacity
("RFC") (id. at 322-23). Further, the
Appeals Council directed the ALJ to indicate the weight she
afforded the state agency medical consultants' opinions
(id.). After a re-hearing on October 13, 2016, the
ALJ again found that Plaintiff was not disabled and denied
Plaintiff's DIB and SSI claims (id. at 111-32).
The Appeals Council denied review (id. at 1-4) and
thus, the ALJ's decision became the final decision of the
Commissioner. This appeal followed.
appeals the Commissioner's denial of her claim on the
ground that the decision is not supported by
"substantial evidence" under 42 U.S.C. §
405(g). Pending before this court are Plaintiff's motion
for judgment on the pleadings requesting that the
Commissioner's decision be reversed or remanded for
further proceedings (Dkt. No. 13), and the Commissioner's
motion for an order affirming the decision of the ALJ (Dkt.
No. 15). The parties have consented to this court's
jurisdiction (Dkt. No. 12). See 28 U.S.C. §
636(c); Fed.R.Civ.P. 73. For the reasons stated below, the
court will grant the Commissioner's motion for an order
affirming the decision and deny Plaintiff's motion.
Standard for Entitlement to Disability Insurance Benefits
and Supplemental Security Income
order to qualify for DIB and SSI, a claimant must demonstrate
that she is disabled within the meaning of the Social
Security Act. A claimant is disabled for purposes of DIB
and SSI if 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. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant
is unable to engage in any substantial gainful activity when
is not only unable to do [her] previous work, but cannot,
considering [her] age, education, and work experience, engage
in any other kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists
in the immediate area in which [s]he lives, or whether a
specific job vacancy exists for [her], or whether [s]he would
be hired if [s]he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The
Commissioner evaluates a claimant's impairment under a
five-step sequential evaluation process set forth in the
regulations promulgated by the Social Security Administration
("SSA"). See 20 C.F.R. §
404.1520(a)(4)(i-v). The hearing officer must determine: (1)
whether the claimant is engaged in substantial gainful
activity; (2) whether the claimant suffers from a severe
impairment; (3) whether the impairment meets or equals a
listed impairment contained in Appendix 1 to the regulations;
(4) whether the impairment prevents the claimant from
performing previous relevant work; and (5) whether the
impairment prevents the claimant from dong any work
considering the claimant's age, education, and work
experience. See id; see also Goodermote v. Sec'y of
Health & Human Servs., 690 F.2d 5, 6-7 (1st
Cir. 1982) (describing the five-step process). If the hearing
officer determines at any step of the evaluation that the
claimant is or is not disabled, the analysis does not
continue to the next step. 20 C.F.R. § 404.1520(a)(4).
proceeding to steps four and five, the Commissioner must make
an assessment of the claimant's RFC, which the
Commissioner uses at step four to determine whether the
claimant can do past relevant work and at step five to
determine if the claimant can adjust to other work. See
RFC is what an individual can still do despite his or her
limitations. RFC is an administrative assessment of the
extent to which an individual's medically determinable
impairment(s), including any related symptoms, such as pain,
may cause physical or mental limitations or restrictions that
may affect his or her capacity to do work-related physical
and mental activities
Security Ruling ("SSR") 96-8p, 1996 WL 374184, at
*2 (July 2, 1996).
claimant has the burden of proof through step four of the
analysis, including the burden to demonstrate RFC.
Flaherty v. Astrue, Civil Action No. 11-11156-TSH,
2013 WL 4784419, at *8-9 (D. Mass. Sept. 5, 2013) (citing
Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
2004)). At step five, the Commissioner has the burden of
showing the existence of jobs in the national economy that
the claimant can perform notwithstanding his or her
restrictions and limitations. Goodermote, 690 F.2d
Standard of Review
district court may enter a judgment affirming, modifying, or
reversing the final decision of the Commissioner, with or
without remanding for rehearing. See 42 U.S.C.
§ 405(g). Judicial review "is limited to
determining whether the ALJ used the proper legal standards
and found facts upon the proper quantum of evidence."
Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655
(1st Cir. 2000). The court reviews questions of law de
novo, but must defer to the ALJ's findings of fact
if they are supported by substantial evidence. Id.
(citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.
1999) (per curiam)). Substantial evidence exists
"'if a reasonable mind, reviewing the evidence in
the record as a whole, could accept it as adequate to support
[the] conclusion.'" Irlanda Ortiz v. Sec'y
of Health & Human Servs., 955 F.2d 765, 769 (1st
Cir. 1991) (quoting Rodriguez v. Sec'y of Health
& Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).
"While 'substantial evidence' is 'more than
a scintilla,' it certainly does not approach the
preponderance-of-the-evidence standard normally found in
civil cases." Bath Iron Works Corp. v. U.S.
Dep't of Labor, 336 F.3d 51, 56 (1st Cir. 2003)
(citing Sprague v. Dir., Office of Workers' Comp.
Programs, U.S. Dep't of Labor, 688 F.2d
862, 865 (1st Cir. 1982)). In applying the substantial
evidence standard, the court must be mindful that it is the
province of the ALJ, and not the courts, to determine issues
of credibility, resolve conflicts in the evidence, and draw
conclusions from such evidence. See Irlanda Ortiz,
955 F.2d at 769. So long as the substantial evidence standard
is met, the ALJ's factual findings are conclusive even if
the record "arguably could support a different
conclusion." Id. at 770. That said, the ALJ may
not ignore evidence, misapply the law, or judge matters
entrusted to experts. Nguyen, 172 F.3d at 35.
is married and has three children (A.R. at 455, 496). She was
40 years old when she applied for DIB and SSI on July 21,
2014 (id. at 454). At the time of the re-hearing
before the ALJ in October 2016, Plaintiff was 42 years old
and lived with her husband and children, ages eight and
eleven (id. at 150). Plaintiff graduated from high
school and worked full-time as an administrative assistant
from 1991 to 2003 and as a defibrillator assembler from 2004
to 2009 (id. at 138). She was employed as a
part-time personal care assistant from 2009 to 2012
(id. at 138). Plaintiff had not worked since 2012
(id. at 138).
Plaintiff's Physical Condition
alleges that the ALJ erred by failing to assign controlling
weight to the two opinions of her PCP, Elizabeth Armstrong,
M.D., of the Riverbend Medical Group ("Riverbend").
Because Dr. Armstrong's opinions were based on her
assessment of Plaintiff's lumbar DDD (back) and
fibromyalgia, the court focuses on Plaintiff's medical
history that is related to those two conditions.
2014, Plaintiff reported to Robert N. Shapiro, M.D. of
Baystate Neurosurgery that she had been experiencing back
pain for about three years (id. at 670).
September 21, 2012, Dr. Armstrong referred Plaintiff for
physical therapy ("PT") to treat her back, hip, and
leg pain and to maintain her remaining strength, balance, and
range of motion (id. at 766). Dr. Armstrong
indicated that it was "imperative" that Plaintiff
remain active (id.).
January 11, 2013, Plaintiff was evaluated at NovaCare
Rehabilitation due to back pain (id. at 835, 861).
Her plan of care diagnosis was lumbago of the spine
(id. at 858). The record reflects that pain caused
moderate limitations in Plaintiff's range of motion,
muscular performance, and the capacity to climb stairs, walk,
sit, stand, sleep, and work (id. at 858-59). The
therapist indicated that Plaintiff's "overall
rehabilitation potential" was "good" and
recommended that she attend aquatic therapy session three
times a week for four weeks to decrease pain and to increase
function, range of motion, and strength (id. at
858-64). Plaintiff attended a therapy session on February 6,
2013 (id. at 851-53). The March 4, 2013 record from
NovaCare Rehabilitation indicated that she had not attended
recently scheduled therapy sessions due to "a personal
medical issue" (id. at 844). On March 4, 3013,
the physical therapist noted that aquatic therapy had
increased the range of motion and flexibility of
Plaintiff's back and had reduced her pain (id.).
The last NovaCare record of March 20, 2013 stated that
Plaintiff should continue with the current rehabilitation
plan (id. at 836-37).
26, 2013, Tony Tannoury, M.D. of the Boston Medical
Center's Department of Orthopedic Surgery noted that the
recent MRI of Plaintiff's cervical spine was
"normal" and the MRI of her lumbar spine "was
predominantly normal with a tiny L4-L5 annular tear with L5
transitional vertebra" (id. at 614). She was
advised to start a course of PT or to exercise on her own
(id.). Dr. Tannoury further recommended that she
"stay out of surgery for as long as possible"
(id. at 615). When Plaintiff saw Dr. Tannoury for a
follow-up visit on August 30, 2013, he "strongly
recommended" that she join fitness and weight loss
programs (id. at 618). The results of the
radiological views of her lumbar spine showed: the
"suggestion of transitional lumbosacral anatomy;"
"well maintained" vertebral body heights and disc
spaces; "grossly normal" alignment;
"degenerative changes with facet hypertrophy of the
lower lumbar spine;" and "multilevel marginal
anterior osteophytes" (id. at 610).
January 17, 2014, Plaintiff visited Dr. Tannoury complaining
of low back pain of 10 on a scale of 10 and bilateral leg
pain of 6 on a scale of 10 (id. at 612). Plaintiff
reported that her legs were numb (id.). The doctor
observed that Plaintiff's gait was antalgic, favoring the
right side (id. at 612). He ordered an MRI which
showed that "[n]ormal lumbar lordosis [was] preserved
without evidence of acute fracture or subluxation,"
"[v]ertebral body heights and intervertebral disc spaces
[were] maintained," "[t]here [were] mild
degenerative changes . . . from L4-S1 with small anterior
endplate osteophytes and posterior facet hypertrophy,"
"limited anteroposterior range of motion with flexion
and extension with no obvious subluxation," and
unremarkable paravertebral soft tissues (id. at 613,
616). An MRI at Mercy Medical Center in Springfield a month
later revealed mild caudal facet arthropathy (id. at
827). There was no disc herniation, central stenosis, or
foramenal stenosis (id.).
February 10, 2014, Plaintiff told her gynecologist that her
health had been "good" since her last exam
(id. at 702).
30, 2014, Dr. Shapiro of Baystate Neurosurgery examined
Plaintiff and reviewed an MRI (id. at 670-71). Dr.
Shapiro noted that Plaintiff had "a very healthy and
normal-looking MRI" (id.). He noted that her
discs were well hydrated (id. at 671). Although she
had a lumbarized S1 where the S1-S2 disc space was
"somewhat larger than normal," Dr. Shapiro
characterized this as a "normal anatomical variant"
(id.). He further observed that Plaintiff had some
facet hypertrophy and T2 signal changes in the facet joints
at ¶ 4-5 and L5-S1, "but no compression of any sort
anywhere" (id.). He indicated that there was
"no surgical recourse" (id.). Because he
opined that "a lot of her pain is related to
deconditioning and obesity," he referred her to Baystate
Weight Loss (id.).
January 8, 2015, Plaintiff was evaluated by Erin Watson, D.O.
of Pioneer Spine and Sports Physicians P.C.
("PSSP") after referral by Peter Kassis, M.D. of
Riverbend on October 20, 2014 (id. at 816-19, 958).
Plaintiff complained of "stabbing" back pain
(id. at 816). Her gait was non-antalgic
(id. at 817). According to the records, she
indicated that she did not exercise (id.). A Butrans
patch was prescribed for pain (id. at 818).
Plaintiff's March 18, 2015 visit to PSSP, her spine was
"[g]rossly normal to inspection," and her cervical
lordosis, thoracic kyphosis, lumbar lordosis, and active
range of motion were normal (id. at 921). The
available MRI reports showed normal discs (id.). Dr.
Watson noted that the Butrans patch "provide[d] some
benefit" and increased the dosage (id.).
Plaintiff's March 5, 2015 visit to Dr. Armstrong, the
physician discussed Plaintiff's back, leg, hip, and joint
pain (id. at 955). Dr. Armstrong indicated that that
it was "imperative" for Plaintiff "to maintain
whatever remaining function she ha[d] in her joints, and to
maintain her muscle tone" (id.).
April 24, 2015, Plaintiff complained to PSSP of pain on her
right side over her PSIS and buttock radiating to her lateral
thigh (id. at 916). At that visit, she stood
"comfortably erect" and walked with a slight
antalgic gait, but did not use an ambulatory device
(id. at 917). PT and counseling were recommended and
Butrans was continued because it supported her daily
activities (id. at 918). A note from Plaintiff's
July 21, 2015 visit to PSSP indicated: "She was offered
PT at her last visit, though did not attend;" and
"[s]he did not avail herself of chronic pain counseling
which was suggested at the last visit" (id. at
September 2, 2015, the Noble Hospital Sports and
Rehabilitation Center conducted a PT evaluation of Plaintiff
with the goal of formulating a program to relieve her low
back pain (id. at 1032-35, 1038-40). According to
the evaluator, Plaintiff's rehabilitation potential was
"good" (id. at 1035). She was a "no
show" on September 15, 2015 and was discharged because
of "poor attendance" (id. at 1037, 1049).
from Plaintiff's September 28, 2015 visit to PSSP
indicated that she had not been able to attend PT sessions
due to a "conflict of interest with time"
(id. at 931). Julia L'Heureux, F.N.P., examined
Plaintiff and made the following observations of her spine:
normal contour; no atrophy, deformity, ecchymosis, scoliosis,
or spinal curvature; no tenderness with palpation of the
greater trochanters, latissimus dorsi, levator scapulae
bilaterally, paravertebral facet area bilaterally, trapezius
or trochanteric bursa bilaterally; moderate pain with
palpation of the PSIS, SI joint, and right piriformis muscle
(id. at 932). Plaintiff's posture was normal,
and her spine and hip range of motion was
"physiologic" (id.). The reverse straight
leg raise, straight leg raise, and trunk rotation were
negative bilaterally (id.). In summary,
L'Heureux noted that Plaintiff's presentation
suggested sacroiliac pain (id. at 933). She further
noted that the "current opiate regime allow[ed]
[Plaintiff] to ambulate independently and perform simple and
instrumented activities of daily living independently"
without significant side effects from the medication
(id. at 933). L'Heureux referred Plaintiff to
Baystate weight management for evaluation and treatment of
October 8, 2015, Plaintiff walked with a normal gait pattern
when she was evaluated for PT at PSSP (id. at 964).
The therapist indicated that Plaintiff would benefit from a
"program of gradual progression core stabilization,
stretching," and other interventions and noted that
"[r]ehab potential is good" (id. at 965).
The medical records indicate that she attended PT on October
15 and 21, 2015 and November 19, 2015 (id. at
967-70, 1084-85). On October 21, the therapist noted that
Plaintiff tolerated treatment and new exercises well
(id. at 969).
November 18, 2015 x-ray of Plaintiff's lumbosacral spine
conducted by the Arthritis Treatment Center revealed
"[n]ormal sagittal alignment of 4 non-rib bearing lumbar
vertebra plus a lumbosacral transitional vertebra that is
referred to as L5 with a sacralized L5S1 disc"
(id. at 1082). Vertebral body heights were
preserved, there were no compression fractures, the L1L2
through L4L5 intervertebral disc spaces were maintained
without significant endplate sclerosis or spurring
(id.). The overall impression was of "[v]ariant
lumbosacral transitional vertebra" and "no
significant degenerative disc disease" (id.).
An x-ray of Plaintiff's sacroiliac joints that was
conducted on the same day showed normal joints and sacrum
(id. at 1083). Antonio Valentin, M.D. of the
Arthritis Treatment Center noted that Plaintiff's x-rays
were "unremarkable and showed no significant
degenerative or inflammatory changes" (id. at
1058). Upon examination, Plaintiff's lumbosacral spine
appeared normal and exhibited no muscle spasms (id.
at 1061). Palpation revealed tenderness but no abnormalities
January 8, 2016, when Plaintiff saw Dr. Armstrong and asked
her to complete a disability form, Plaintiff reported that
she had not attended PT sessions because of
"transportation and insurance issues" (id.
at 1095). Plaintiff told Dr. Armstrong, "PT did not seem
to be helping anyway" and reported that she was taking
"chronic narcotics" (id.).
record from Plaintiff's January 21, 2016 visit to PSSP
states that she was unable to attend PT due to
"illness" (id. at 1073). It was noted that
she did not exercise (id. at 1074). L'Heureux
stated that the current medication permitted Plaintiff to
ambulate independently and to perform "simple and
instrumented" daily living activities (id. at
1075). She was referred for a bilateral sacroiliac joint
injection and S1 to S3 lateral ...