United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION
FOR ORDER REVERSING THE COMMISSIONER'S DECISION AND
DEFENDANT'S MOTION FOR ORDER AFFIRMING THE DECISION OF
THE COMMISSIONER (DOCKET NOS. 16 & 21)
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE
I.
Introduction and Procedural History
Vitaliy
Jacob Bratnichenko (“Plaintiff”) brings this
action pursuant to 42 U.S.C. § 405(g) seeking review of
a final decision of the Acting Commissioner of Social
Security (“Commissioner”) denying his application
for Social Security Disability Insurance Benefits
(“DIB”). Plaintiff applied for DIB on June 10,
2015, alleging an onset date of April 3, 2014, later amended
to July 3, 2014 (Administrative Record (“AR”)
443, Dkt. No. 15). Plaintiff claimed disability due to
Complex Regional Pain Syndrome/Reflex Sympathetic Dystrophy
Syndrome (“CRPS” or “RSDS”),
[1]
which originated in a work injury (AR 335). His application
was denied initially and on reconsideration (AR 116-17,
138-39, 158-60, 182). On February 25, 2016, Plaintiff
requested a hearing before an Administrative Law Judge
(“ALJ”), and one was held on June 23, 2017 (AR
58-105). On August 30, 2017, the ALJ issued an unfavorable
decision (AR 11-24). Plaintiff sought review by the Appeals
Council, which denied relief (AR 1-7). Thus, the ALJ's
decision became the final decision of the Commissioner, and
this suit followed.
Plaintiff
appeals from the ALJ's decision on the grounds that (1)
the ALJ's decision is not supported by substantial
evidence in that the ALJ failed to accord controlling weight
to the opinions of Plaintiff's treating care provider, a
pain specialist; and (2) the Appeals Council erred by
refusing to consider additional evidence (Dkt. No. 17 at 18).
Pending before this court are Plaintiff's motion for an
order reversing the Commissioner's decision (Dkt. No. 16)
and Defendant's motion for an order affirming the
Commissioner's decision (Dkt. No. 21). 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 allow
Plaintiff's motion for an order reversing the
Commissioner's decision and deny the Commissioner's
motion.
II.
Legal Standards
A.
Standard for Entitlement to Disability Insurance
Benefits
In
order to qualify for DIB, a claimant must demonstrate that he
is disabled within the meaning of the Social Security
Act.[2]
A claimant is disabled for purposes of DIB if he 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 he is not only
unable to do his previous work but cannot, considering his
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 he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if 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. 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 make
an assessment of the claimant's residual functional
capacity (“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 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 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
at 7.
B.
Standard of Review
The
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) (mem.) (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. “Under the
substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains
‘sufficien[t] evidence' to support the agency's
factual determinations.” Biestek v. Berryhill,
139 S.Ct. 1148, 1154 (2019). 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).
When,
as in this case, the ALJ reaches step five in the sequential
evaluation process, the burden shifts to the Commissioner to
show that the claimant can perform work other than his past
relevant work. Vallier v. Berryhill, No.
1:17-cv-00064-DBH, 2017 WL 5665539, at *2 (D. Me. Nov. 26,
2017), adopted by 2017 WL 6347776 (D. Me. Dec. 12,
2017). “The record must contain substantial evidence in
support of the commissioner's findings regarding the
plaintiff's RFC to perform such other work.”
Id. “A hearing officer, as a lay person,
generally is not qualified to interpret raw medical data to
determine a claimant's RFC.” Beyene v.
Astrue, 739 F.Supp.2d 77, 83 (D. Mass. 2010) (citing
Manso-Pizarro v. Sec'y of Health & Human
Servs., 76 F.3d 15, 17 (1st Cir. 1996)). When a claimant
has put his functional capacity sufficiently at issue by the
submission of evidence of a severe impairment, “the
hearing officer is obliged to measure the claimant's
relevant capabilities and ‘to make that measurement, an
expert's RFC evaluation is ordinarily
essential.'” Id. (quoting Santiago v.
Sec'y of Health & Human Servs., 944 F.2d 1, 7
(1st Cir. 1991)).
III.
Facts
A.
Plaintiff's Background
Plaintiff
was twenty-four years old on the date of the hearing before
the ALJ. He graduated from high school and college, receiving
a bachelor's degree in finance from the University of
Massachusetts in June 2015 (AR 70). Plaintiff, who is
right-hand dominant, played volleyball and was a body builder
(AR 544). He had worked as a nurse's aide and a personal
care attendant (AR 73-74). On April 3, 2014, while working as
an order picker at a warehouse, Plaintiff injured his left
shoulder when lifting a heavy case (AR 75, 544). He was
placed on light duty at this job (AR 62), then left and found
a position as a personal care assistant, at which he worked
until February 2015 (AR 68).[3]
B.
Medical Records
The
court limits its summary to those medical records that appear
most relevant to Plaintiff's claims of error and
requested relief.
Plaintiff
suffered a work-related injury on April 3, 2014. The earliest
related medical record is an April 9, 2014 letter from Lori
Gomez, D.O., interpreting a scan of Plaintiff's shoulder,
which Dr. Gomez determined showed “normal views of the
left shoulder” (AR 589). When Plaintiff's shoulder
remained painful, he sought treatment from Clifford Rios,
M.D., of Orthopedic Associates of Hartford (AR 544-45). On
May 29, 2014, Plaintiff presented with his left arm in a
sling and reported diffuse pain and prominent loss of motion.
He told the doctor that “[h]e [felt] like he cannot
move his arm at all.” On examination, Dr. Rios noted
that Plaintiff's shoulder musculature was
“well-developed, without evidence of atrophy, ”
and “no cutaneous abnormality.” The doctor could
only conduct a limited exam because Plaintiff “refused
to straighten his elbow fully because he said this hurt[] his
shoulder. He had a global loss of active and passive motion
of the shoulder, although [Dr. Rios] could not tell if there
was some volitional component to this.” Dr. Rios
evaluated an MRI that Plaintiff obtained on May 6, 2014, and
“saw no evidence of a rotator cuff tear or labral
tear” (AR 544). Dr. Rios told Plaintiff that he had a
“very unusual presentation for this type of
injury.” He gave Plaintiff a trial of naproxen,
referred him to physical therapy, and recommended
“discontinuing the sling and starting to move his
shoulder and elbow” (id.). Finally, Dr. Rios
put Plaintiff on light duty restriction with no lifting of
the left arm (AR 454).
From
June until August 2014, Plaintiff attended some seven
sessions of physical therapy at NovaCare Rehabilitation (AR
831-58). Plaintiff's initial evaluation was on June 9,
2014 (AR 858-864). The intake note lists Plaintiff's
diagnosis as shoulder joint pain and adhesive capsulitis in
the shoulder. Plaintiff reported that he was unable to bathe,
carry things, reach, or perform any chores with his left
upper extremity; he dressed himself with difficulty; and he
had one to three disturbances in his sleep per week.
Plaintiff reported his severity of pain as, at best, a six
out of ten and a ten out of ten at worst. Upon objective
examination, the physical therapist noted Plaintiff's
symptoms were “extremely irritable, to the point where
we were unable to move his [upper extremity] much past
position of comfort” (AR 858). The therapist further
noted that Plaintiff's range of motion was
“extremely limited as he [was] virtually unable to move
shoulder away from torso” and that Plaintiff also
presented with limited range of motion in his elbow, likely
due to his use of a sling, which Plaintiff was advised to
discontinue (AR 859).
Plaintiff
returned to physical therapy on June 13 (AR 855-57), June 18
(AR 852-54), June 23 (AR 844-47), June 27 (AR 840-42), June
30 (AR 837-39), and July 2, 2014 (832-36). Through each
session, Plaintiff “remain[ed] extremely irritable with
shoulder/elbow/forearm motion. Objective measurements
reassessed with minimal change” (AR 848). After
Plaintiff's fourth visit, the physical therapy team
contacted Dr. Rios and informed him of Plaintiff's
“continued considerable pain with all motions [and
were] [i]nstructed to continue” (AR 845). As treatment
continued, Plaintiff had “extreme guarding with all
motions and [extensions]” and held his left upper
extremity in a “guarded position throughout the entire
treatment” (AR 841).
On July
3, 2014, Plaintiff returned to Dr. Rios for a follow up (AR
540-41). Plaintiff reported that physical therapy made him
feel worse and that he could not use his arm at all. On
examination, Dr. Rios noted that Plaintiff maintained
well-developed musculature around the arm and forearm, that
the temperature of his hands was grossly symmetric, and that
there was no asymmetry in perspiration or color. In assessing
Plaintiff's range of motion, the doctor noted some
limitations, but could not tell “if there [was] a
volitional component to this” (AR 540). Dr. Rios gave a
diagnostic impression of possible CRPS of the left arm. He
recommended that Plaintiff see a specialist in CRPS.
Plaintiff
returned to Dr. Rios on August 15, 2014, with continued
complaints of constant discomfort in his left arm that now
prevented him from sleeping, as well as with reports that he
still could not use his arm at all (AR 537-39). Though
Plaintiff's range of motion was still globally limited,
his “muscular development show[ed] no gross evidence of
atrophy” (AR 537). Dr. Rios had consulted with Raymond
Squire, M.D., who did not feel that Plaintiff's symptoms
were consistent with CRPS. Dr. Rios listed Plaintiff's
diagnosis as left shoulder adhesive capsulitis, though the
doctor noted that this did not explain Plaintiff's loss
of elbow motion. The doctor further recommended that
Plaintiff try a diagnostic corticosteroid injection into the
intra-articular space of the left shoulder. Dr. Rios
remarked, “Consideration for examination under
anesthesia may be warranted, although this degree of
limitation seems more than I would expect from his MRI
findings and reported injury. Moreover, his maintenance of
well-developed musculature in spite of not being able to
‘move [his] arm' for 4 months seems to be
contradicted” (AR 537). Plaintiff received a note
authorizing his return to work with no restrictions that day
(AR 539). On September 15, 2014, Plaintiff reported to Ilham
Bothner, RNCS, NPC, who completed a worker's compensation
exam concerning Plaintiff's “extreme pain” in
the left arm and shoulder and the upcoming cortisone
injection (AR 673-74).
On
October 14, 2014, Plaintiff saw Dr. Rios again, reporting
persistent, constant pain in his left shoulder, elbow, and
forearm (AR 535-36). Plaintiff stated that the corticosteroid
injection did not help at all; in fact, Plaintiff felt it
made the pain worse and made it harder for him to move his
elbow and wrist (AR 535, 748).[4] When the doctor examined
Plaintiff, he had tenderness to light touch over the majority
of his left upper extremity and his motion was “limited
in all planes secondary to pain” (AR 535). Dr. Rios
noted that the temperature and color of Plaintiff's hands
remained symmetric. Dr. Rios concluded that there was no
specific orthopedic diagnosis that would explain
Plaintiff's symptomology and recommended another
consultation with Dr. Squire for evaluation for CRPS.
On
January 14, 2015, Plaintiff saw Howard Lantner, M.D., at
Minimally Invasive Spine and Neurosurgery in Connecticut for
treatment of left shoulder pain (AR 554). Plaintiff reported
that he had “pain, numbness and tingling radiating to
the left chest and left upper extremity” and that his
symptoms significantly worsened after an injection in his
left shoulder (AR 554). He had stopped taking pain medication
because he ran out of it. Plaintiff had “noticed some
imbalance and also some memory and concentration
issues.” Dr. Lantner could not examine Plaintiff's
left upper extremity or shoulder due to Plaintiff's
discomfort; “[a]ny movement of that left arm worsens
his left upper extremity pain.” Dr. Lantner assessed
Plaintiff as having left shoulder and upper extremity pain
“likely secondary to [CRPS]” (AR 554). The doctor
recommended that Plaintiff continue with his pain management
visits. Dr. Lantner opined that “[b]ased on the history
obtained, [Plaintiff's] current symptoms are related to
the on the job injury of April 3, 2014” (AR 555).
On
April 29, 2015, Plaintiff had an appointment at Baystate
Health Pain Management Center with Ashish Malik, M.D. (AR
556-64). In reporting his history, Plaintiff stated that
while gabapentin and ibuprofen helped relieve the pain a bit,
naproxen did not help. Physical therapy did not help and
steroid injections worsened the condition (AR 558). Dr. Malik
noted that initially Plaintiff's shoulder MRI had been
read to show a tear, but a second opinion found that there
was no tear. Upon examination, Dr. Malik found several
differences between Plaintiff's left and right upper
extremities, such as weaker peripheral pulse, paler skin, and
poor capillary refill in the left hand. He also noted that
the left hand was sweating. The doctor noted that there was
no muscular atrophy appreciated between the upper
extremities. Dr. Malik diagnosed Plaintiff with CRPS, noting
that he had swelling, sweating, color change, and
allodynia.[5] He formulated a treatment plan that
included a nerve block so Plaintiff could better tolerate
physical therapy (AR 560).
On May
5, 2015, Plaintiff saw Matthew Hellman, M.D., of Pain
Management at Beth Israel Deaconess Medical Center for a
second opinion on receiving a stellate ganglion block given
that his pain worsened after the steroid injection (AR
568-69). Dr. Hellman recommended increasing his gabapentin
dosage and returning to physical therapy (AR 569). On May 19,
2015, Plaintiff returned to Dr. Hellman for a follow up. Dr.
Hellman noted that Plaintiff had not followed up on his prior
recommendations of a higher dosage of gabapentin, physical
therapy, and seeing a neurologist (AR 572). Plaintiff
continued to describe the pain as a ten out of ten burning
sensation that originated in his shoulder and shot down his
arm to all five fingers. Dr. Hellman prescribed the same
course of treatment as he had at the earlier visit.
On May
23, 2015, Kim Paul, PT, evaluated Plaintiff at Attain Therapy
and Fitness to begin a course of physical therapy (AR
576-81). The assessment indicated that Plaintiff was not a
candidate for skilled physical therapy at the time because he
could not tolerate any touch or movement of his left upper
extremity. The notes remarked on Plaintiff's significant
guarding of his left upper extremity (AR 579), as well as the
fact that he had not begun his treatment of gabapentin, as he
was awaiting insurance approval.
On May
26, 2015, Julie L'Heureux, FNP, saw Plaintiff at Pioneer
Spine and Sports Physicians. While she noted that Plaintiff
appeared healthy and well developed and exhibited no apparent
signs of distress, the nurse practitioner noted that
Plaintiff had an extreme limitation in the range of motion of
his left shoulder because of pain and that, as compared to
his right arm, Plaintiff's left arm was weaker, cooler,
exhibited hair loss and showed mottled skin (AR 584). The
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