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.
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). 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.
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.
Standard for Entitlement to Disability Insurance Benefits
and Supplemental Security Income
order to qualify for DIB and SSI, a claimant must demonstrate
that she is disabled within the meaning of the Social
Security Act. 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
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). 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).
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).
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) 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
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).
Plaintiff's Physical Condition
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).
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
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.).
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).
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).
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).
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).
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.).
State Agency Consultants
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).
Svetlana Puzankov, PA-C
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).