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Anderson v. Berryhill

United States District Court, D. Massachusetts

March 19, 2019




         Erik Anderson (“Anderson” or “plaintiff”) seeks judicial review of the partial denial of his application for disability insurance benefits by Nancy A. Berryhill (“the Commissioner” or “defendant”), the acting Commissioner of the Social Security Administration (“the SSA”). Anderson asserts that the decision of the Administrative Law Judge (“ALJ”) was erroneous and that he was improperly denied benefits as a result.

         Pending before this Court are plaintiff's motion to reverse or remand the Commissioner's decision (Docket No. 24) and defendant's motion to affirm the Commissioner's decision (Docket No. 26). For the following reasons, those motions will be allowed, in part, and denied, in part, and the case will be remanded to the ALJ for further proceedings consistent with this opinion.

         I. Background

         A. Employment History and Alleged Disability

         Anderson was born in 1961. He is a high school graduate. He took some additional classes while serving in the Navy where he was an active duty aviation anti-submarine warfare operator from 1980 to 1987. After his active duty, Anderson continued to serve in the Navy Reserve until 1993. He was employed in the fast food industry until the early 2000s and as a general laborer thereafter for Labor Ready performing construction cleanup. He has not maintained steady employment since March, 2008, his alleged onset date.

         Anderson testified that he worked for one day in 2010 when he traveled in a van for Labor Ready but he stopped working after that as a result of pain in his lower back, legs and arms. He also testified that he helped one of his friends who is a plumber for a few hours on one other occasion in 2014 but that was not regular employment. In addition to his general pain, Anderson asserts that his medications cause him dizziness and cognitive impairment.

         On March 5, 2008, the alleged onset date for purposes of his application for disability insurance benefits, Anderson visited a doctor for arm pain. Before his onset date, plaintiff consulted with a variety of doctors to deal with his ailments. In 2000 or 2001, Anderson had a bad period of back pain and saw a doctor at Milton Hospital. That doctor gave him a lower back injection. The injection helped for a few years after which his condition worsened. In 2008, plaintiff saw a second neurosurgeon for his symptoms. The record reflects that Anderson had an MRI on his spine in 2007, an EMG of his lower left leg in 2008 and that those exams revealed a form of stenosis, a disc bulge and a root lesion.

         Since March, 2013, Anderson's last date of insurance and eligibility for disability benefits, he has continued to receive treatment from various doctors for his back pain and mental health. Anderson began treatment with Dr. Veronica Vedensky in February, 2014, and has continued to meet with her intermittently at all relevant times. Dr. Vedensky referred Anderson to a pain clinic and various specialists and monitored his progress as he underwent multiple lumbar epidural steroid injections. He was also prescribed various medications during that time to help treat his pain, including Tizanidine and Gabapentin.

         In August, 2014, Anderson met with Dr. Paul Blachman for a neurological consultation where he complained of radiating back pain, pain in his right arm and left leg and numbness in his lower leg. After ordering MRI studies, Dr. Blachman found no evidence of spinal cord abnormality but observed that there was significant degenerative arthritis in Anderson's spine. Upon further examination, Dr. Blachman determined that Anderson exhibited normal strength and tone, normal gait and no sensory abnormalities. Dr. Blachman referred plaintiff for additional epidural steroid injections. Those injections were partially successful in alleviating his pain for a few months at a time. Anderson visited Dr. Blachman again in June, 2015, after experiencing an intense onset of pain in multiple joints resulting from a tetanus vaccination. Dr. Blachman referred Anderson to a rheumatologist.

         In July, 2015, Anderson was referred to physical therapy after complaining that his pain had spread to his shoulders. He was also prescribed Percocet around that time. In October, 2015, it was noted that Anderson had passed out due to dehydration after engaging in vigorous exercise.

         In November, 2015, Anderson first met with rheumatologist Dr. Peter Martens who noted that plaintiff had a stiff gait, tenderness and decreased range of motion of the spine. He was prescribed Etodolac for his pain and later Cymbalta, although Anderson was unable to fill the latter prescription because of financial limitations. He saw Dr. Martens again in March, 2016, where he reported that he was unable to lift more than 10 pounds and could not stand more than 10 to 15 minutes at a time or for more than an hour per day. He also stated that he had difficulty with concentration because of his pain and the side effects from his medication. Anderson's neurological examination was normal during that visit and the musculoskeletal examination showed limited range of motion in the shoulders and lower back but no muscular tenderness or swelling and normal range of motion in the upper back and neck. During that visit, Dr. Martens also completed a disability form in which he expressed the opinion that plaintiff could 1) lift and carry no more than 10 pounds, 2) stand and walk less than two hours in an eight-hour work day, 3) sit for less than six hours in an eight-hour work day and 4) never crouch, crawl or stoop but occasionally balance, kneel and climb.

         Anderson consulted with Dr. Martens again in July, 2016. The doctor recorded that Anderson was not taking his medication because he could not afford it but that Anderson had reported that physical therapy had significantly decreased his pain.

         In addition to his treatment for his physical symptoms, Anderson was seen by two mental health professionals after his date of last insurance. In October, 2014, Jessica Silbermann, a clinical social worker at Bayview Associates, diagnosed Anderson with a nonspecific anxiety disorder. As part of her diagnosis, Silbermann noted that Anderson exhibited abnormalities in his mental status examination and difficulty with memory. She conducted a cognitive assessment known as a Global Assessment of Functioning (“GAF”), which is a numeric score used by mental health physicians to assess the severity of mental impairment. That assessment yielded a score of 50 which indicated serious symptoms or impairments.

         In March, 2015, Anderson underwent a psychiatric consultative examination by Dr. Leah Logan. She recorded that Anderson had difficulty remembering words after a short delay but that his speech was normal in rate, volume and tone and that he appeared to be in a good mood throughout the interview. She conducted both a GAF and a Montreal Cognitive Assessment (“MoCA”), another test to assess cognitive impairments. Anderson scored a 63 and a 23 respectively on those cognitive tests, both of which indicate mild limitations or cognitive impairments.

         B. State Physician Medical Opinions

         State agency medical opinions were submitted pertaining to Anderson's physical and mental health conditions. With respect to plaintiff's physical impairments, Dr. Rudolf Titanji reviewed plaintiff's record in January, 2015, and Dr. Mary Connelly reviewed his record in September, 2015. Both physicians provided opinions as to plaintiff's physical limitations. Dr. Titanji opined that Anderson had a severe impairment of degenerative disc disease. Both physicians agreed that plaintiff could 1) occasionally lift and/or carry 20 pounds, 2) frequently lift and/or carry 10 pounds, 3) sit, stand and/or walk for about ...

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