United States District Court, D. Massachusetts
Ann M. Sanchez, Plaintiff,
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 &
KATHERINE A. ROBERTSON U.S. MAGISTRATE JUDGE
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). 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.
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.
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.
Plaintiff's Educational Background and Work
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
Plaintiff's Physical Condition
Dr. Hayfron-Benjamin's Opinion
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).
State Agency Consultants' Opinions
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).
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).
Third Party Function Report
twenty-year-old daughter, Briana D. Tyndal, completed a Third
Party Function Report form on September 12, 2013 (A.R. at
423). 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).
The ALJ Hearing
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).
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).
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
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).
The Commissioner's Decision
Legal 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
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.
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
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.
The ALJ's Decision
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.
§ 404.1520(c). For purposes of step three, the ALJ
reviewed Plaintiff's impairments and determined that her
impairments, either alone or in combination, ...