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Sanchez v. Berryhill

United States District Court, D. Massachusetts

June 10, 2019

Ann M. Sanchez, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.

          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. 14 & 16)

          KATHERINE A. ROBERTSON U.S. MAGISTRATE JUDGE

         I. Introduction

         Ann M. Sanchez ("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"). Plaintiff applied for DIB on November 13, 2012, alleging an August 24, 2012 onset of disability due to problems stemming from the following impairments: low back pain with two empty discs in the lower spine; degenerative disc disease with pain in both hips and numbness in the legs; migraines; anxiety; depression; and insomnia (A.R. at 165, 334).[1] On January 29, 2015, the Administrative Law Judge ("ALJ") found that Plaintiff was not disabled and denied her application for DIB (A.R. at 197-213). 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"); address the severity of her fibromyalgia pursuant to Social Security Ruling ("SSR") 12-2p, 2012 WL 3104869 (July 25, 2012); and consider the third party function reports of Plaintiff's daughter (A.R. at 220-22). After a re-hearing on March 15, 2017, the ALJ again found that Plaintiff was not disabled and denied Plaintiff's DIB claim (A.R. at 72-85). The Appeals Council denied review (A.R. at 1-7) 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. 14), and the Commissioner's motion for an order affirming the decision of the ALJ (Dkt. No. 16). The parties have consented to this court's jurisdiction (Dkt. No. 13). 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. Factual Background

         Plaintiff alleges that the ALJ erred by: (1) failing to afford controlling weight to the opinion of Plaintiff's primary care physician ("PCP") regarding the severity of Plaintiff's physical impairments; and (2) failing to include a total restriction on Plaintiff's ability to operate foot or leg controls in the RFC notwithstanding his inclusion of that degree of restriction 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 Educational Background and Work History

         Plaintiff was forty-three years old at the time of the hearing on March 15, 2017, had an adult daughter, and was living alone (A.R. at 101, 106-07, 423). Plaintiff received vocational training and obtained a GED (A.R. at 106). She had worked as a personal care attendant, a medical unit secretary at a hospital, a phlebotomist, an office manager who supervised six or seven people, and a medical receptionist (A.R. at 83, 109-111). She stopped working because of back pain (A.R. at 109).

         B. Plaintiff's Physical Condition

         1. Opinions

         (a) Dr. Hayfron-Benjamin's Opinion

         On October 30, 2014, Christina Hayfron-Benjamin, M.D., Plaintiff's PCP at Riverbend Medical, completed a "Medical Opinion Re: Ability to Do Work-Related Activities" form (A.R. at 648-49). According to Dr. Hayfron-Benjamin, Plaintiff could: lift and carry less than ten pounds; stand and walk for less than two hours, with normal breaks, during an eight-hour day; and sit for about two hours, with normal breaks, during an eight-hour day (A.R. at 648). She could sit and stand for ten minutes before changing position (A.R. at 648). Dr. Hayfron-Benjamin attributed these limitations to the disc disease of Plaintiff's lumbar spine, fibromyalgia, and regional pain syndrome (A.R. at 648). Dr. Hayfron-Benjamin further opined that Plaintiff's disc disease rendered her completely unable to twist, stoop, crouch, or climb ladders (A.R. at 649). She could occasionally climb stairs (A.R. at 649). In addition, Plaintiff's "chronic pain [and] lower back pain with radiculopathy" affected her ability to reach, push/pull, and handle and feel objects (A.R. at 649). According to Dr. Hayfron-Benjamin, x-rays and physical examinations supported those restrictions (A.R. at 649). Plaintiff's condition required the avoidance of all exposure to extreme cold and concentrated exposure to extreme heat (A.R. at 649). Dr. Hayfron-Benjamin further opined that: Plaintiff "is disabled with her chronic pain syndrome and [illegible] behavioral health issues" and would be absent from work more than four days per month (A.R. at 649).

         (b) State Agency Consultants' Opinions

         On May 13, 2013, Robert B. McGan, M.D. assessed Plaintiff's RFC based on a review of her records (A.R. at 171-72). Dr. Robbins opined that Plaintiff could: lift twenty pounds occasionally and ten pounds frequently; stand and/or walk for two hours and sit for six hours during an eight-hour work day with normal breaks; and occasionally climb ramps, stairs, ladders, ropes, or scaffolds, balance, stoop, kneel, crouch, and crawl (A.R. at 171-72). In addition, she should avoid: concentrated exposure to extreme cold, extreme heat, wetness, humidity, fumes, odors, dusts, gases, poor ventilation; and hazards, such as machinery and heights (A.R. at 172). Dr. McGan opined that Plaintiff could perform sedentary jobs and was not disabled (A.R. at 176-77).

         Marie Turner, M.D. conducted a reconsideration evaluation of Plaintiff's physical RFC on December 26, 2013 (A.R. at 187-89). Dr. Turner's opinion mirrored Dr. McGan's except Dr. Turner opined that Plaintiff could stand and/or walk and sit for about six hours during an eight-hour work day with normal breaks and did not have any environmental limitations (A.R. at 188-89). As support for her opinions, Dr. Turner noted that Plaintiff's "[m]ore recent exams [were] quite [normal]" (A.R. at 189). Dr. Turner determined that Plaintiff could perform light, unskilled jobs and was not disabled (A.R. at 192-93).

         2. Third Party Function Report

         Plaintiff's twenty-year-old daughter, Briana D. Tyndal, completed a Third Party Function Report form on September 12, 2013 (A.R. at 423).[2] Ms. Tyndal indicated that Plaintiff's back and body pain, which had increased in the "past few months," limited her ability to lift a gallon of milk, squat, bend, stand, walk for more than five minutes without resting, sit, kneel, climb stairs, and remember (A.R. at 423, 428). Plaintiff needed Ms. Tyndal's assistance to get out of bed, dress, care for her hair, and perform household chores (A.R. at 424). Plaintiff spent her days lying on the bed or couch (A.R. at 423). She was no longer able to grocery shop, exercise, socialize, clean, and cook, although she prepared microwave meals, frozen dinners, and snacks (A.R. at 424, 425, 427, 428). She did laundry and dusted "sometimes," drove, shopped on the computer, and went to weekly therapy appointments (A.R. at 425-27). She enjoyed reading and watching TV every day (A.R. at 427).

         C. The ALJ Hearing

         Plaintiff and independent VE Michael Dorval testified at the hearing before the ALJ on March 15, 2017 (A.R. at 101). Plaintiff described her lower back pain and fibromyalgia. 1. Plaintiff's Testimony Plaintiff testified regarding her most significant condition: constant low back pain, which radiated into her hips and down her right leg (A.R. at 111, 112, 119, 121). The pain suddenly started one day when she bent over (A.R. at 112). Without any over-the-counter or prescription medication, she experienced pain of 10 on a scale of 10 (A.R. at 112-13). With medication, she rated the pain as 7 on a scale of 10 (A.R. at 113). She had a history of receiving injections about every six months, which "sometimes" relieved her back pain (A.R. at 111, 113, 119-20). Over-the-counter heat patches, hot showers, a heating blanket, and elevating her legs also provided relief (A.R. at 120-21). Although she had experience with physical therapy, it had not alleviated her condition (A.R. at 111, 120). At the time of the hearing, she was not taking prescription medication or receiving injections to relieve her back pain because she had just returned to Massachusetts from South Carolina where she did not have health insurance (A.R. at 107, 111).

         In addition, in approximately 2013, Plaintiff had been diagnosed as having fibromyalgia, which caused "body ache, and pain behind [her] knees and [her] joints" and in the back of her head (A.R. at 114, 115, 121). Plaintiff described the pain as "hard" (A.R. at 121). She occasionally experienced flare-ups (A.R. at 122). The fibromyalgia affected the strength of her right hand so that she had difficulty picking up and holding objects (A.R. at 122). Consequently, she avoided lifting objects with her right hand (A.R. at 122-23). Medication and the application of heat relieved the pain (A.R. at 115, 122).

         Plaintiff described her physical limitations and daily activities. She was able to: sit comfortably for ten or fifteen minutes before changing her position; stand for ten or fifteen minutes; and walk for five minutes before taking a break (A.R. at 123). Her ability to twist, bend, squat, and climb stairs was limited (A.R. at 120, 124). Plaintiff cooked "quick" meals and did her laundry (A.R. at 116). She was able to bathe, groom, and dress herself (A.R. at 116). With the exception of attending medical appointments, she did not leave her home (A.R. at 117). On an average morning, she made coffee, read, tried to relax, and took medication to relieve her pain (A.R. at 117). She also watched TV and listened to the radio during the day (A.R. at 117).

         2. The VE's Testimony

         In order to elicit the VE's opinion of whether Plaintiff could perform her past jobs or jobs that existed in the regional and national economy, the ALJ asked the VE to assume a person with Plaintiff's age, education, and work experience who could engage in sedentary work (A.R. At 130).

The work should be simple and routine in nature. The work should not entail direct overhead lifting or reaching, or should not be performed at heights using ladders, ropes, or scaffolding, or should not entail more than occasional, and occasional being defined up to one-third of the work day using ramps, stairs, stooping, crouching, crawling, and kneeling. Work should be outside of loud, noisy, or bright sunny environments. The work should entail no more than occasional, and occasional being defined as up to one-third of the work day, co-worker or public contact. Work should not require the operation of foot or leg controls. Work should be outside of environments having more than incidental exposure to extremes of cold, heat, fumes, dust, gases, humidity, or vibration, and work should entail no more than frequent, and frequent being defined as up to two-thirds of the work day, grasping, pinching, or twisting with the right hand and arm.

(A.R. at 130). The VE testified that the hypothetical individual could not perform Plaintiff's past jobs, but could work as a telephone order clerk, surveillance system monitor, and polisher of optical goods (A.R. at 130-31). However, those jobs would not be available to a person who was off-task from work duties for at least one-third of the work day or who was absent from work for four or more days per month (A.R. at 131).

         III. The Commissioner's Decision

         A. Legal 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 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 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 her RFC. See 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. See Goodermote, 690 F.2d at 7.

         B. The ALJ's Decision

         In determining whether Plaintiff was disabled, the ALJ conducted the five-part analysis required by the regulations. See 20 C.F.R. § 404.1520(a)(4)(i-v); see also Goodermote, 690 F.2d at 6-7. At the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of August 24, 2012 (A.R. at 74). See 20 C.F.R. § 404.1571 et seq. At step two, the ALJ found that Plaintiff had the following severe impairments: depression; degenerative disc disease; headaches; fibromyalgia; asthma; and right arm weakness (A.R. at 74). See 20 C.F.R. ยง 404.1520(c). For purposes of step three, the ALJ reviewed Plaintiff's impairments and determined that her impairments, either alone or in combination, ...


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