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O'Connor v. Berryhill

United States District Court, D. Massachusetts

March 29, 2019

Natasha Jane O'Connor, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.



         I. Introduction

         Natasha Jane O'Connor ("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 August 8, 2012, alleging an October 31, 2009 onset of disability due to problems stemming from the following impairments: anxiety; panic disorder; agoraphobia; and a "heart problem" (A.R. at 442, 481).[1] On January 30, 2015, the Administrative Law Judge ("ALJ") found that Plaintiff was not disabled and denied her application for DIB and SSI (id. at 264-294). The Appeals Council vacated the decision and remanded the case to the ALJ to further evaluate Plaintiff's mental impairments and their effect on her residual functional capacity ("RFC") (id. at 296-97). The Appeals Counsel specifically directed the ALJ to issue a new decision that addressed Plaintiff's abilities to: "understand, carry out and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision, co-workers, and work situations; and deal with changes in a routine work setting" (id.). After a re-hearing on November 8, 2016, the ALJ again found that Plaintiff was not disabled and denied Plaintiff's DIB and SSI claims (id. at 85-100). The Appeals Council denied review (id. at 1-6) 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. 21). The parties have consented to this court's jurisdiction (Dkt. No. 15). 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 doing 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 assess 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 "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) failing to adhere to her January 2015 step two findings regarding the physical limitations attributable to Plaintiff's back condition; and (2) failing to afford controlling weight to the opinion of a nurse practitioner. 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

         Plaintiff was forty-three years old at the time of the hearing on November 8, 2016 and had a twenty-four year old son (A.R. at 109, 113, 120). She attended high school through the tenth grade (id. at 113). From 1996 to 2009, she had worked full-time as a phlebotomist and from February to June 2012, she had been employed as a part-time cashier at McDonald's (id. at 113, 482).

         B. Plaintiff's Physical Condition

         1. Treatment Records

         On October 29, 2010, Plaintiff went to the Cooley Dickinson Hospital emergency department complaining that she injured her lower back when she stumbled and fell against a coffee table (id. at 886). There was no radiation of numbness, tingling, or pain down her leg, but she experienced tenderness over the right paralumbar region (id. at 886-87). The frontal and lateral x-rays of Plaintiff's lumbar spine showed "some facet arthropathy of LF-S1, but relatively normal disc spaces and no slippage or other abnormalities [were] seen" (id. at 887, 893). She was diagnosed with a lower back contusion and was prescribed Percocet and Soma (id. at 887).

         The December 11, 2010 x-rays of Plaintiff's thoracic spine were "negative" (id. at 614). The radiograph revealed "vertebral bodies [that were] normal in height, contour and alignment," no fracture or other focal skeletal abnormality, intact posterior elements, well-maintained intervertebral disc spaces, and unremarkable SI joints, sacral foramina, and paraspinal soft tissues (id.). The November 5, 2012 x-rays also showed that Plaintiff's lumbosacral spine was normal (id. at 862).

         On June 3, 2014, certified physician's assistant ("PA-C") Svetlana Puzankov of Family Medical Associates ("Family Medical") noted that there was no tenderness to palpation of the facets in Plaintiff's lumbar areas (id. at 995). However, Plaintiff's paraspinous muscles and bilateral lumbar areas were tender to palpation (id.). Her spinal range of motion was painful in flexion, extension, bilateral rotation, and bilateral lateral bending (id.). The seated straight leg raise was negative bilaterally (id.). Plaintiff's gait was "intact" (id.).

         The records of Plaintiff's July 24, 2014 visit to Family Medical indicated that Plaintiff experienced ongoing problems with low and mid-back pain (id. at 1004). There was no numbness, paresthesia, weakness, or urinary incontinence (id.). Plaintiff indicated that the muscle relaxer helped, especially at night (id.). PA-C Puzankov diagnosed lumbago and recommended that Plaintiff continue stretching, applying heat and ice, and taking NSAIDs (id. at 1006, 1007). Plaintiff indicated that she was not interested in a physical therapy ("PT") or a chiropractic referral (id. at 1006).

         The October 21, 2014 MRI of Plaintiff's spine revealed a "small posterior right paramedian disc protrusion that approaches without compressing the traversing right S1 nerve root within the right subarticular zone" (id. at 1038). The other disc levels of the lumbar spine were normal (id.). "There [was] no severe central canal stenosis and there [was] no severe neural foraminal stenosis within the lumbar spine" (id.). Lumbar disc disease was diagnosed based on the MRI results (id. at 1037).

         The report of Plaintiff's February 29, 2016 visit to Family Medical indicated that Plaintiff walked three to six hours per week for exercise (id. at 1137).

         2. Consultative Examination

         Paul A. Lagac, M.D. of the University of Massachusetts Medical Center ("UMMC") Disability Evaluation Services evaluated Plaintiff's physical condition on November 1, 2012 (id. at 838). According to Plaintiff, she stayed inside the house because her back pain prevented her from walking and engaging in any activities (id. at 839). She used a heating pad to relieve the constant pain (id. at 838, 839).

         Dr. Lagac observed that Plaintiff's gait and flexion, extension, rotation, and lateral flexions of her back were normal (id. at 839). "She was able to bend down to 90 degrees" (id.).

         3. Opinions

         a. State Agency Consultants

         Based on the medical evidence indicating that Plaintiff's examinations were normal, the state agency consultants, Elaine Hom, M.D. and M. Douglas Poirier, M.D., found Plaintiff's spine disorders to be non-severe in November 2012 and March 2013 respectively (id. at 201, 219). Dr. Poirier opined that Plaintiff demonstrated the maximum sustained work capability for "heavy/very heavy" work (id. at 224).

         b. Svetlana Puzankov, PA-C

         On June 3, 2014, PA-C Puzankov of Family Medical completed a form indicating her medical opinion of Plaintiff's physical capability "to do work-related activities on a day-to-day basis in a regular work setting" (id. at 976-77). PA-C Puzankov stated that Plaintiff's "chronic hip and back pain" did not limit her ability to lift, carry, stand, walk, sit, and perform postural activities and physical functions (id.). There were no environmental restrictions on Plaintiff's ability to perform work-related activities either (id. at 977). PA-C Puzankov cited the "unremarkable" x-ray of Plaintiff's lumbar spine as support for her opinion regarding Plaintiff's ability to perform postural activities (id.). The Mental Impairment Questionnaire that PA-C Puzankov completed noted the absence of substantial "objective findings" supporting Plaintiff's assertion regarding the severity of her back pain (id. at 981).

         C. Plaintiff's ...

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