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Bratnichenko v. Berryhill

United States District Court, D. Massachusetts

July 19, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration,



         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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