McKinnon v. Berryhill

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge

         I. Introduction

         Plaintiff 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].

         II. Standard of Review

         The 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).

         The ALJ 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. § 404.1520(a)(4).

         The ALJ 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).

         III. Factual Background

         A. Medical Evidence

         McKinnon, 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.

         1. Records from Tinatin Chabrashvili, M.D.

         On May 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 energetic.” Id.

         2. Records from Kenneth Pariser, M.D.

         On July 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.

         3. Letter from Robert O. Sills, Ph.D., BCD

         In 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.

         4. Records from Stanley M. Cole, M.D.

         Dr. 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 158.

         5. Report from Michael Larson, D.O.

         On 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 ...