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Boardway v. Berryhill

United States District Court, D. Massachusetts

September 10, 2018

Karin Sue Boardway, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.

          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 & 15)

          KATHERINE A. ROBERTSON, U.S. MAGISTRATE JUDGE

         I. Introduction

         Karin 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).[1] 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.

         Plaintiff 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.

         II. Legal Standards

         A. Standard for Entitlement to Disability Insurance Benefits and Supplemental Security Income

         In order to qualify for DIB and SSI, a claimant must demonstrate that she is disabled within the meaning of the Social Security Act.[2] 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 she

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).[3] 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).

         Before 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 id.

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

         Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *2 (July 2, 1996).

         The 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 at 7.

         B. Standard of Review

         The 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.

         III. Facts

         A. Plaintiff's Background

         Plaintiff 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).

         B. Plaintiff's Physical Condition

         Plaintiff 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.

         1. Back

         In June 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).

         On 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.).

         On 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).

         On July 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).

         On 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.).

         On February 10, 2014, Plaintiff told her gynecologist that her health had been "good" since her last exam (id. at 702).

         On June 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.).

         On 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).

         At 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.).

         During 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.).

         On 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 935).

         On 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).

         A note 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 obesity (id.).

         On 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).

         A 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 (id.).

         On 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.).

         The 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 ...


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