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Avila v. Berryhill

United States District Court, D. Massachusetts

June 20, 2019

IVAN A. AVILA, Plaintiff,
v.
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 COMMISSIONER

          F. DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE.

         This is 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 this Court.

         Avila 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.

         I. Background

         A. Factual Background

         1. Personal History

         Avila is 42 years old. (A.R. 76).[1] 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).[2] He had previously worked as a maintenance mechanic, hand packager, and landscape laborer. (A.R. 65).

         2. Medical History

         Avila has a lengthy medical record. He has received treatment for a variety of conditions, including back and shoulder pain. (A.R. 22-29).[3]

         On 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.).

         On 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. (Id.).

         On May 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. (Id.).

         On June 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. (Id.).

         In 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).

         On 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.).

         On 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).

         On 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).

         In 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).

         Later that month, Avila underwent a lumbar laminectomy and discectomy at the L5-S1 level. (A.R. 410).

         On 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. (Id.).

         On 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).

         On 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).

         Later 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).

         On 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).

         At a 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 ...


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