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Lopardo v. Berryhill

United States District Court, D. Massachusetts

March 20, 2019

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



         I. Introduction

         Darlene Maria Lopardo ("Plaintiff") brings this action pursuant to 42 U.S.C. § 1383(c)(3) challenging the final decision of the Acting Commissioner of Social Security ("Commissioner") denying her application for Social Security Disability Insurance Benefits ("DIB"). Plaintiff applied for DIB on November 6, 2014, alleging a September 1, 2014 onset of disability, due to problems stemming from the following impairments: depression; anxiety; heel spur syndrome; coccyx pain; and plantar fasciitis (A.R. at 185, 202, 206).[1] On September 20, 2016, the Administrative Law Judge ("ALJ") found that Plaintiff was not disabled and denied her application for DIB (id. at 19-27).[2] The Appeals Council denied review (id. at 1-8) 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. 12), and the Commissioner's motion for an order affirming the decision of the ALJ (Dkt. No. 14). The parties have consented to this court's jurisdiction (Dkt. No. 20). 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

         In order to qualify for DIB, a claimant must demonstrate that she is disabled within the meaning of the Social Security Act.[3] A claimant is disabled for purposes of DIB 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). 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). 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).

         Before proceeding to steps four and five, the Commissioner must make an assessment of the claimant's Residual Functional Capacity ("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 "the ALJ's findings shall be conclusive if they are supported by substantial evidence, and must be upheld 'if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion,' even if the record could also justify a different conclusion." Applebee v. Berryhill, 744 Fed.Appx. 6, 6 (1st Cir. 2018) (quoting Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222-23 (1st Cir. 1981) (citations omitted). "Substantial-evidence review is more deferential than it might sound to the lay ear: though certainly 'more than a scintilla' of evidence is required to meet the benchmark, a preponderance of evidence is not." Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (quoting Bath Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56 (1st Cir. 2003)). 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 Applebee, 744 Fed.Appx. at 6. That said, the ALJ may not ignore evidence, misapply the law, or judge matters entrusted to experts. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).

         III. Facts

         Plaintiff alleges that the ALJ erred by: (1) omitting depression and anxiety as a severe impairment at step two of the sequential evaluation process; (2) limiting his consideration of medical evidence and failing to assign weight to medical consultants' opinions; and (3) failing to include restrictions on Plaintiff's ability to stoop, bend, and balance in the RFC notwithstanding his inclusion of those restrictions in the hypothetical that he posed to the Vocational Expert (VE) at the hearing. Accordingly, the background information will be limited to facts relevant to those issues and additional pertinent facts will be discussed in the analysis.

         A. Plaintiff's Background

         At the time of the hearing before the ALJ in August 2016, Plaintiff was 49 years old and lived with her mother (id. at 39, 51). Plaintiff graduated from high school and from college with an associate degree in office procedure (id. at 39, 207). Plaintiff had worked as a cashier and a sales associate in retail stores (id. at 207). She was employed as a food service worker in an assisted living facility for seven and one-half years from November 2006 to February 2014 (id. at 39-40, 207, 497). She testified that she was laid off due to a management change and her complaints about chronic pain (id. at 40). During the first two years of her employment at the assisted living facility, she worked full-time but decreased her hours to part time thereafter because of her medical conditions (id. at 40, 269).

         B. Consultative Examinations

         1. Leon Hutt, Ph.D.

         Leon Hutt, Ph.D. conducted a consultative examination of Plaintiff on April 30, 2013 (id. at 269). At the time of Dr. Hutt's examination, Plaintiff was working part-time as a wait staff member (id.). Her chronic lower back pain prevented her from working full-time (id. at 271-72).

         Plaintiff reported being depressed due to her physical limitations and family members' deaths and illnesses (id. at 270). She described herself as being a "worrywart" from the time she was a child (id. at 270-71). She stated that she had trouble sleeping and frequently felt tired even after she got a good night's sleep (id. at 270).

         Plaintiff told the doctor that she had been a runner but had stopped running two years before when the pain in her coccyx increased (id.). She went to the movies, the theater, or a restaurant with a friend or family members about once a week (id.). She sometimes went to a casino with a group of people (id.). She had a learner's permit to drive, which she renewed every two years, but had not gotten a driver's license for twenty or twenty-five years because she was "fearful" (id.).

         The Mental Status Examination revealed that Plaintiff's speech was "generally clear, relevant, and coherent" (id.). Her attentional capacity was "fair" (id. at 271). According to Dr. Hutt, Plaintiff functioned in the low average range of adult intellectual functioning (id.). Her affect was "appropriate" and her mood was "mildly anxious" (id.). "[W]ith the exception of difficulty sleeping, and possibly feeling tired, [Plaintiff] did not seem to have symptoms of depression" (id.). Dr. Hutt diagnosed: generalized anxiety disorder; adjustment disorder with depressed mood; and rule out ADD (id.). He assigned a Global Assessment of Functioning (GAF) score of 70 (id.).[4] Dr. Hutt opined that Plaintiff could "understand, follow, and remember work-related instructions and procedures" (id.).

         2. Willard Brown, D.O.

         Willard Brown, D.O. of the University of Massachusetts Medical Center (UMMC) Disability Evaluation Services examined Plaintiff on November 5, 2014 (id. at 490). The examination of her lumbar spine revealed scoliosis with a curvature to the left (id. at 492). Although she experienced some pain, she was able to perform a normal flexion and extension, right and left rotation, and right and left lateral flexion (id.). Her left foot and ankle were "essentially normal" and could bear weight (id.). However, her right heel was extremely tender to palpation (id.). Her inability to bear weight on her right foot ...

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