United States District Court, D. Massachusetts
ANDREW S. MCKINNON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM & ORDER
Talwani United States District Judge
Andrew Stephanos McKinnon seeks reversal of the final
decision by the Commissioner of the Social Security
Administration denying his claim for disability insurance
benefits. Compl. [#1]; Mot. Order Reversing Decision
Comm'r [#14]. Defendant, Acting Commissioner of the
Social Security Administration Nancy A. Berryhill, asks that
this court affirm the decision of the Administrative Law
Judge, made final by the Appeal Council's decision to
deny review. Mot. Order Affirming Decision Comm'r [#16].
For the reasons below, the court DENIES McKinnon's
Motion for Order Reversing the Decision of
Commissioner [#14] and GRANTS Berryhill's Motion
for Order Affirming Decision of Commissioner [#16].
Standard of Review
district court has the power to enter “a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding
the cause for a rehearing.” 42 U.S.C. § 405(g).
Judicial review is limited to determining whether the
Administrative Law Judge (“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). Findings of
fact by the ALJ are conclusive when supported by substantial
evidence, “but . . . not . . . when derived by ignoring
evidence, misapplying the law, or judging matters entrusted
to experts.” Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999). Substantial evidence is “more than a
scintilla, less than a preponderance, and is such that a
reasonable mind might accept it as adequate to support a
conclusion.” Rodriguez v. Berryhill, 323
F.Supp.3d 232, 247 (D. Mass. 2018). A reviewing court must
affirm a decision of the Commissioner “if a reasonable
mind, reviewing the evidence in the record as a whole, could
accept it as adequate to support [the Commissioner's]
conclusion.” Rodriguez v. Sec'y of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
evaluates whether an individual is disabled using the
five-step sequential evaluation process set forth in 20
C.F.R. § 404.1520. At step one, the ALJ considers an
individual's work activity; if the individual is engaging
in “substantial gainful activity, ” the
individual is not disabled. 20 C.F.R. §
404.1520(a)(4)(i). At step two, the ALJ looks at the medical
severity of the individual's impairments. 20 C.F.R.
§ 404.1520(a)(4)(ii). If the individual does not have a
“severe medically determinable physical or mental
impairment” that meets the duration requirement under
20 C.F.R. § 404.1509, the individual is not disabled.
Id. If the claimant has a severe impairment or
combination of impairments, the analysis proceeds to step
three. At step three, the ALJ considers the medical severity
and duration of an individual's impairments. An
individual is disabled if his impairments meet or equal one
of the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1
(“Appendix 1”). 20 C.F.R. §
404.1520(a)(4)(iii). If an individual's impairments do
not meet or equal an Appendix 1 listing criteria, the
ALJ's analysis proceeds. Prior to step four, the ALJ
determines the individual's residual functional capacity
(“RFC”) in preparation for step four. 20 C.F.R.
assesses the individual's RFC based on “all the
relevant evidence in [the] case record.” See
20 C.F.R. § 404.1545. At step four, the ALJ uses the RFC
to consider whether an individual can perform his past
relevant work; if so, the individual is not disabled. 20
C.F.R. § 404.1520(a)(4)(iv). Finally, at step five, the
ALJ considers an individual's RFC and the
individual's age, education, and work experience to
determine if the individual can make an adjustment to other
work that exists in significant numbers in the national
economy. 20 C.F.R. § 404.1520(a)(4)(v); 20 C.F.R. §
404.1560(c). If the individual could adjust to such work, he
is not disabled. 20 C.F.R. § 404.1520(a)(4)(v).
who was 45 when he applied for disability benefits, has a
history of depression, Lyme disease, memory loss, and
arthritis. Consultative Examination Report by Dr. Mayers
(“Mayers Report”), SSA Administrative Record of
Social Security Proceedings (“Admin. Rec.”) at
524, ECF #13-9 at 99; Brigham & Women's Hospital
Records, Dr. Pariser (“Pariser Records”), Admin.
Rec. at 543, ECF #13-10 at 14. While there are decades of
medical records in the Administrative Record, the question
before the court concerns McKinnon's status as of July 1,
2013, the date McKinnon asserts he became disabled.
Application for Disability Insurance Benefits, Admin. Rec.
251, ECF #13-5 at 12. His earlier medical status is
referenced here as background.
Records from Tinatin Chabrashvili, M.D.
13, 2013, McKinnon had a follow-up visit with Dr. Tinatin
Chabrashvili, M.D., with whom McKinnon had consulted for
cognitive complaints such as memory decline and poor
concentration. Tufts Medical Center, Medical Records, Admin.
Rec. at 403-05, ECF #13-8 at 13-15. According to Dr.
Chabrashvili, an MRI conducted in January 2013 was
“unremarkable, ” and “neurophysiological
testing” done in April 2013 was normal. Id.,
Admin. Rec. at 403, ECF #13-8 at 13. Dr. Chabrashvili
acknowledged that McKinnon had a “documented worsening
of cognition during Lyme disease, ” but that at the
follow-up visit, McKinnon “reports some improvement of
his depression, sleeps better, [and] feels more happy and
Records from Kenneth Pariser, M.D.
9, 2013, McKinnon met with Kenneth Pariser, M.D., who had
initially diagnosed him with Lyme disease in 2005. Pariser
Records, Admin. Rec. at 536, 534, ECF #13-10 at 7, 14. Dr.
Pariser wrote that McKinnon's hand, neck, and foot pain
was “better” and reacting well to medication, and
that his joint exam was “remarkable for pain with full
abduction of the right shoulder against resistance.”
Id., Admin. Rec. at 536, ECF #13-10 at 7. McKinnon
saw Dr. Pariser again on August 14, 2014, and the doctor
noted McKinnon's symptoms were consistent with
“mild reactive arthritis now in remission.”
Id., Admin. Rec. at 535, ECF #13-10 at 6. At both
visits, Dr. Pariser noted that McKinnon had “persistent
complaints of difficulty concentrating with no change.”
Id., Admin. Rec. at 535-36, ECF #13-10 at 6-7. On
August 27, 2015, McKinnon returned to Dr. Pariser for a
follow-up appointment, where the doctor reiterated that
McKinnon's symptoms were consistent with “mild
reactive arthritis now in remission.” Id.,
Admin. Rec. at 565-66, ECF #13-10 at 36-37. In February 2016,
McKinnon requested an alternative anti-inflammatory
medication from Dr. Pariser, as his current medication made
him tired, but by August 2016 he returned to the original
medication because it most effectively addressed his hand
pain. Id., Admin. Rec. at 572, 581, ECF #13-10 at
43, 52. In his August 2016 notes, Dr. Pariser described
McKinnon's arthritis as “mild and subtle.”
Id., Admin. Rec. at 582, ECF #13-10 at 53.
Letter from Robert O. Sills, Ph.D., BCD
March of 2014, McKinnon began seeing Dr. Robert O. Sills,
Ph.D., BCD, for voluntary outpatient psychotherapy relating
to McKinnon's depression, anxiety, poor health, and
social isolation. Letter from Dr. Robert O. Sills, Admin.
Rec. at 534, ECF #13-10 at 5. In March 2015, Dr. Sills noted
that McKinnon has “shown improvement over the course of
this past year.” Id.
Records from Stanley M. Cole, M.D.
Sills referred McKinnon to Dr. Stanley M. Cole, M.D., a
board-certified psychiatrist and neurologist, who first saw
McKinnon on November 2, 2014. Narrative Report on Andrew S.
McKinnon (“Narrative Report”), Admin. Rec. at
690, ECF #13-10 at 161. Dr. Cole has seen McKinnon twenty-one
times for at least forty-five minutes each. Id. Dr.
Cole completed a Mental Residual Functional Capacity
Assessment (“MRFC”) on April 20, 2017, noting
that McKinnon was “markedly limited” in three
areas: the ability (1) to understand and remember detailed
instructions; (2) to maintain attention and concentration for
extended periods; (3) and to perform activities within a
schedule, maintain regular attendance, and be punctual within
customary tolerances. MRFC, Admin. Rec. at 687, ECF #13-10 at
Report from Michael Larson, D.O.
December 3, 2014, Dr. Michael Larson, D.O., completed a
psychiatric disorder report where he described McKinnon's
diagnoses of generalized anxiety disorder, Lyme disease,
chronic fatigue, and “significant socioeconomic
stress.” Psychiatric Disorder Report, Admin. Rec. at
443, ECF #13-9 at 18. Dr. Larson, who had been treating
McKinnon since 2010, also noted that McKinnon “needs a
specific spreadsheet to remind him of basic activities,
” and that he “forgets appointments, medication
refills and details.” Id. Additionally, Dr.
Larson opined that McKinnon ...