United States District Court, D. Massachusetts
IVAN A. AVILA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO
REVERSE AND DEFENDANT'S MOTION TO AFFIRM DECISION OF
DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE.
an appeal of a final decision of the Commissioner of the
Social Security Administration (“SSA”). On July
6, 2017, an Administrative Law Judge (“ALJ”)
issued a decision concluding that plaintiff Ivan A. Avila was
not disabled from February 17, 2015, through the date of the
decision. The SSA Appeals Council denied Avila's request
for review on March 6, 2018. Avila then filed an action with
seeks reversal of the Commissioner's decision, and the
Commissioner has moved to affirm the decision. For the
reasons stated below, the decision will be affirmed.
is 42 years old. (A.R. 76). He attended high school through
the eleventh grade. (A.R. 46). He has been unemployed since
he stopped working as a machinist at D. W. Clark in Taunton,
Massachusetts. (A.R. 47). He had previously worked as a
maintenance mechanic, hand packager, and landscape laborer.
has a lengthy medical record. He has received treatment for a
variety of conditions, including back and shoulder pain.
April 6, 2015, Avila saw Dr. Efrain Torres, of Geriatric
Internal Medicine Specialists, for back pain. (A.R. 366).
Upon examination, he had a backache and some radiculopathy in
the right lower extremity, but negative Lasegue sign and
stiffness. (Id.). His neurological findings included
full muscle strength in all muscle groups and intact deep
tendon reflexes, and normal gait. (A.R. 366-367). Dr. Torres
diagnosed backache, pain in joint site, and insomnia. (A.R.
367). For his backache, Dr. Torres referred Avila for an
updated MRI and to the pain clinic, and advised him to use
nonsteroidal anti-inflammatory drugs (“NSAIDs”),
noting that his backache was a chronic issue. (Id.).
April 15, 2015, Avila visited the St. Luke's Hospital
emergency department for back pain. Upon examination, he had
lower back tenderness; tender upper right paraspinal muscles;
normal gait and motor findings; dorsiflexion of the great toe
bilaterally; no first web space paresthesia; and normal
sensation, pulses, and deep tendon reflexes. (A.R. 586). He
had full strength in the upper and lower extremities.
6, 2015, Avila saw Dr. Torres for a follow-up appointment
concerning his back pain. (A.R. 369-370). Dr. Torres advised
him to use NSAIDs and a small dose of narcotics for relief.
19, 2015, Avila visited the Southcoast Health Facility for a
pain management evaluation, complaining of back, neck, and
shoulder pain. (A.R. 381). Upon examination, his back had
limited range of motion and paralumbar tenderness; his neck
had full range of motion; his right shoulder had limited
range of motion; and he had normal motor findings and gait.
(A.R. 382). He was assessed with lumbar radiculopathy,
degenerative disc disease, right shoulder pain, and chronic
pain syndrome. (A.R. 383). He was prescribed gabapentin;
advised to undergo a lumbar epidural steroid injection; and
referred to orthopedic surgery for his right shoulder.
August 2015, at a subsequent visit to the Southcoast Health
Facility, Avila reported ongoing pain radiating from his neck
and shoulder into his legs, and that his pain had improved
somewhat with gabapentin. (A.R. 395). Examination findings
were the same as his prior appointment and his gabapentin and
oxycodone prescriptions were continued. (Id.). At a
follow-up appointment the next week, examination findings
were the same but his treatment with gabapentin was
terminated and he was prescribed Tizandine. (A.R. 400-01).
September 18, 2015, Avila again visited the Southcoast Health
Facility for an evaluation of back and leg pain. (A.R. 447).
Upon examination, his neck had good range of motion; his back
was straight with good range of motion and diffuse tenderness
along the lower lumbosacral spine; light touch was intact in
the upper and lower extremity dermatomes; his gait was slow
but normal; and all motor findings were 5s bilaterally in the
upper and lower extremity. (A.R. 447-48). Mark White, a
physician's assistant, noted that a medical review of his
September 2, 2015 MRI by Dr. Alvin Marcovici showed no clear
compressive pathology on any of his nerve roots. (A.R. 448).
He was referred for bilateral EMG studies to further evaluate
his symptoms. (Id.).
September 23, 2015, Avila complained of worsening back pain
to Dr. M. Anis Rahman. (A.R. 404). Upon examination of his
shoulder, there was tenderness and pain with motion,
decreased active range of motion, but passive range was
normal. (Id.). Upon examination of his lumbar spine,
there was tenderness and mild paraspinal muscle spasm;
straight leg raising was positive to 60 degrees on both
sides; flexion was 60 degrees, lateral bending was 30
degrees, and extension was 15 degrees. (Id.). Dr.
Rahman assessed status post-traumatic injury with subsequent
multiple right shoulder surgeries, chronic shoulder pain, and
chronic back pain. (Id.). He noted that Avila's
shoulder and back were significant problems and because of
his shoulder pain, he has difficulty using his right arm
fully. (A.R. 406).
October 9, 2015, the advising physician to the Disability
Determination Service at the initial level assessed that
Avila had the following residual functioning capacity
(“RFC”): he could lift up to 20 pounds
occasionally and 10 pounds frequently; sit for six hours;
stand or walk for four hours in an eight-hour workday; had
limitations in the ability to push and or pull with the right
upper extremity; could occasionally reach overhead with the
right upper extremity; could perform unlimited handling,
fingering, and feeling; could occasionally climb, balance,
stoop, kneel, crouch, or crawl; could never climb ladders,
ropes, or scaffolds; and should avoid concentrated exposure
to workplace hazards. (A.R. 76-86, 88-99).
November 2015, Avila was seen by Dr. Marcovici at the
Southcoast Health Facility. (A.R. 451). Upon examination, his
spine had normal curvature, limited range of motion, negative
Lhermitte's sign and Spurling's test, paravertebral
muscular tenderness, positive straight leg raise, negative
crossed leg raise, and his gait was antalgic left.
(Id.). His sensation was intact to light touch in
the upper and lower extremities except that it was decreased
in the right lower extremity, and his motor findings were all
5s. (Id.). Dr. Marcovici noted that his October 2015
EMG report showed no evidence of radiculopathy and assessed
his lumbar herniated disc and lumbar radiculopathy,
recommending a surgical discectomy. (A.R. 452).
that month, Avila underwent a lumbar laminectomy and
discectomy at the L5-S1 level. (A.R. 410).
December 3, 2015, Avila visited the Southcoast Health
Facility for a follow up visit. (A.R. 452-53). A Medrol
Dosepak was ordered to supplement his pain management
medications and he was advised to follow up in four weeks.
February 19, 2016, Dr. Jane McInerny, an advising physician
to the Disability Determination Service at the
reconsideration level, reviewed an updated record, including
evidence of Avila's back surgery, and assessed him with
the following RFC: he could lift up to ten pounds
occasionally and less than ten pounds frequently; sit for six
hours; stand or walk for four hours in an eight-hour workday;
occasionally climb, balance, stop, kneel, crouch, or crawl,
but never climb ladders, ropes, or scaffolds; had limited
ability to push or pull with the right upper extremity; could
occasionally reach overhead with the right overhead
extremity; had unlimited ability to handle, finger, and feel;
and should avoid concentrated exposure to workplace hazards.
(A.R. 104-117, 122-135).
March 3, 2016, Avila visited the Good Samaritan Hospital
emergency department for evaluation of back pain and reported
that he ran out of pain medication. (A.R. 556). Upon
examination, he had diffuse tenderness in his lumbosacral
spine and paravertebral area, and had a positive straight leg
raise test. (A.R. 557). His neurological findings, including
his motor, sensory, and deep tendon reflex findings, were all
grossly normal. (Id.). He was prescribed a small
amount of Tramadol for pain relief. (A.R. 559).
that month, a lumbar MRI taken on Avila showed L5-S1 left
hemilaminectomy; postoperative epidural granulation tissue
touching the traversing left SI nerve root; a slightly
enlarged L4-L5 left paracentral disc herniation that touches
traversing left L5 nerve root; a new L5-S1 left foraminal
disc protrusion that impinges upon exiting left L5 nerve
root; smaller L5-S1 central disc herniation that touches
bilateral traversing S1 nerve roots; and no significant canal
stenosis. (A.R. 570-71).
April 13, 2016, Avila visited the Brockton Hospital emergency
department for back pain after being a restrained driver in a
vehicular accident. (A.R. 473). Upon examination, he had
significant lower lumbar vertebral tenderness, decreased
sensation to light touch in the L5-S1 distribution of the
left foot, and weakness in dorsiflexion of the left foot.
(A.R. 475). He was referred for an x-ray, which showed normal
lumbar spine alignment, no fracture or dislocation, and mild
to moderate disc space narrowing at L5-S1. (A.R. 475-76). He
was diagnosed with a strain of the lumbar region and
prescribed Flexeril and Percocet. (A.R. 476).
follow-up appointment with Southcoast Health on May 24, 2016,
an examination showed that Avila's right shoulder had a
limited range of motion; his back had a limited range of
motion and paralumbar tenderness; his gait was antalgic, with
a cane; he had a positive left straight leg raise test; his
motor findings were all 5s; and his sensory examination of
the L3-S1 dermatome was intact. (A.R. 487). He was ...