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. 12 &
KATHERINE A. ROBERTSON U.S. MAGISTRATE JUDGE.
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). 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). 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.
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.
Standard for Entitlement to Disability Insurance
order to qualify for DIB, a claimant must demonstrate that
she is disabled within the meaning of the Social Security
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).
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
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 "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).
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.
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).
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
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).
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"
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.). Dr. Hutt opined
that Plaintiff could "understand, follow, and remember
work-related instructions and procedures"
Willard Brown, D.O.
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 ...