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Soto v. Saul

United States District Court, D. Massachusetts

September 19, 2019

ANDREW SAUL, Commissioner of Social Security Administration, Defendant.



         I. Introduction

         Luis A. Robles Soto (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision of the Commissioner of Social Security (“Commissioner”)[1]denying his application for Social Security Disability Insurance Benefits (“DIB”). Plaintiff applied for DIB on December 17, 2015, alleging an onset date of August 1, 2014 (Dkt. No. 11, Administrative Record (“A.R.”) 283). Plaintiff claimed disability due to lower back disc problems, a problem with his right hip, difficulty walking, a problem with his right knee, depression, and lumbar spasms (A.R. 311). His application was denied initially and on reconsideration (A.R. 139-48, 161-74). On August 1, 2016, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and one was held on July 31, 2017 (A.R. 115-38). On October 4, 2017, the ALJ issued an unfavorable decision (A.R. 80-107). Plaintiff sought review by the Appeals Council, which denied relief (A.R. 1-9). 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 the ALJ erred (1) by not fully adopting the opinion in a consultative evaluation when assessing whether Plaintiff was able to work; (2) in failing to find that Plaintiff’s knee impairment was severe; and (3) in finding that Plaintiff’s statements about the severity of his pain were not fully consistent with the contents of the medical records and other evidence (Dkt. No. 15 at 8, 10, 15). Pending before this court are Plaintiff’s Motion for Judgment on the Pleadings (Dkt. No. 14) and Defendant’s Motion to Affirm the Commissioner (Dkt. No. 16). 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 deny Plaintiff’s motion and allow the Commissioner’s motion.

         II. Legal Standards

         A. Standard for Entitlement to DIB

         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 qualifies as disabled 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 whether: (1) the claimant is engaged in substantial gainful activity; (2) the claimant suffers from a severe impairment; (3) the impairment meets or equals a listed impairment contained in Appendix 1 to the regulations; (4) the impairment prevents the claimant from performing previous relevant work; and (5) 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 ALJ must make an assessment of the claimant’s residual functional capacity (“RFC”), which the ALJ 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).

         III. Facts

         A. Plaintiff’s Background

         Plaintiff was thirty-six years old on the date of the hearing before the ALJ. He had graduated from high school and completed one year of college. He can read and write only in Spanish (A.R. 119). As a child, Plaintiff had Perthes disease, also known as Legg-Calvé-Perthes disease, which is “epiphysial aseptic necrosis of the upper end of the femur.” Stedman’s Medical Dictionary 449 (25th ed. 1990). Plaintiff reported he had previously worked as a housekeeping supervisor, landscaper, security guard supervisor, security guard, and delivery truck loader/unloader (A.R. 120-21, 398).

         B. Records Related to Physical Impairments

         On October 23, 2013, Plaintiff presented at Baystate Medical Center (“BMC”) Emergency Medicine for treatment of a swollen leg and pain in his right knee after slipping on a step at home (A.R. 729). The emergency medicine notes reviewed Plaintiff’s medical history of right hip bacterial infection during childhood and orthopedic surgery on his left knee (A.R. 730). Howard Smithline, M.D., diagnosed Plaintiff with knee sprain/strain, treated his pain, and referred Plaintiff for treatment to New England Orthopedic Surgeons (“NEOS”) (A.R. 730-31).

         The next medical record is from more than a year later. On February 4, 2015, Plaintiff sought treatment from Baystate High Street Health Center Adult Medicine (“HSHC”) for chronic lower back pain and right hip pain that had recently worsened (A.R. 767). Nurse practitioner Leilani Kidder noted that during the exam, Plaintiff appeared distressed with walking and in pain (A.R. 768). Ms. Kidder prescribed naproxen for pain and tramadol for severe pain and ordered an x-ray of Plaintiff’s pelvis once his insurance was in place (A.R. 768). Plaintiff did not follow up with physical therapy after an appointment in October 2014 because of problems with insurance (A.R. 767).

         On February 17, 2015, Plaintiff had x-rays performed of his right hip and pelvis (A.R. 484-85). On review of the films, Michael George, M.D., noted coxa vara[3] and coxa plana[4] of the right hip and cystic degenerative changes in the head and degenerative changes in the lateral right acetabulum (A.R. 484). Dr. George formed the impression that the coxa vara and plana of the right femoral head were likely due to prior septic arthritis. He reported severe degenerative changes of the acetabulum and humeral head secondary to the abnormal articulation and postsurgical changes in the intertrochanteric right femur.

         On March 5, 2015, Plaintiff presented at HSHC for a physical performed by Olubukola Ojewoye, M.D., overseen by Linda Canty, M.D. (A.R. 758). For Plaintiff’s personal medical history, Dr. Ojewoye wrote “chronic back pain for past 15 years which patient said doctors told him was due to his previous leg discrepancy[;] [history of] chronic right hip pain for past 15 years secondary to septic arthritis of [right] hip, recent imaging 2/2015 with degenerative changes consistent with previous septic arthritis[;] [left] leg surgery [due to] limb length discrepancy over 15 years ago in Puerto Rico” (A.R. 758). Dr. Ojewoye formulated a plan for Plaintiff that included another referral to NEOS and continued pain treatment with naproxen (A.R. 759).

         On March 30, 2015, Plaintiff saw physician’s assistant Brian Puchalski at NEOS for an evaluation of his right hip pain (A.R. 469). Plaintiff reported that he had a history of septic arthritis in both his knee and hip and had been dealing with pain for about ten years. The pain worsened with any fast movements and weight-bearing activities, and he had difficult putting on his shoes and socks. Upon examination, Mr. Puchalski noted that Plaintiff walked with a Trendelenburg gait on the right side; range of motion revealed discomfort at the end of range of flexion; there was a positive Stinchfield response for the right, but not the left hip; and 5/5 strength of the hip flexors bilaterally. The x-ray showed severe arthritis of the right hip with subchondral sclerosis and cyst formation, as well as significant wear and flattening of the femoral head and superior wear of the acetabulum.

         With the assistance of a Spanish interpreter, Mr. Puchalski and Plaintiff discussed possible treatment options such as the use of a cane and joint injections. Because of Plaintiff’s history of septic arthritis, Mr. Puchalski recommended a hip aspiration to make sure there was no occult infection in his joint. They also discussed the possibility of a total hip arthroplasty. Plaintiff agreed to follow up as outlined.

         On April 3, 2015, Plaintiff saw nurse practitioner Jalil Johnson at HSHC for his hip and back pain (A.R. 490-91). Plaintiff reported that he was planning to undergo a total right hip replacement through NEOS. He received a refill of his naproxen prescription, which he reported helped with his pain.

         On April 6 and 7, 2015, Plaintiff underwent a procedure at BMC for bone marrow and labeled white blood cell imaging to investigate his right hip pain (A.R. 750). The findings revealed photopenia in the right hip and proximal right femur “consistent with previous [avascular necrosis] in the right femoral head.” However, there was no “increased metabolic activity to suggest infection” or evidence of right hip septic arthritis or osteomyelitis.

         On April 30, 2015, Plaintiff returned to HSHC with disability paperwork from the Massachusetts Department of Transitional Assistance. According to Dr. Ojewoye, Plaintiff reported that he had exhausted his period of disability in March 2015, that he had seen a doctor at NEOS, and that surgery was planned at some point to fix his back. The doctor’s notes provided, “We discussed that I cannot truthfully and accurately document why he will need temporary assistance after surgery if I do not have information from a surgeon that he will be doing surgery” (A.R. 753).

         On May 14, 2015, Plaintiff returned to Dr. Ojewoye (A.R. 555-56). He reported that he had an appointment scheduled in August at NEOS to be evaluated for hip replacement surgery. Dr. Ojewoye noted that NEOS had diagnosed him with end stage arthritis of the right hip and that there were few conservative options left for him. NEOS recommended a cane, continued use of anti-inflammatories, and possible intra articular injections. The doctor further noted that Plaintiff had been unemployed since August 2014 because “finding a new job has been difficult since (and as is expected) new employers are apprehensive about employing him given his [right] hip arthritis and pain” (A.R. 556).

         Plaintiff returned to HSHC every month for the following three months. On June 22, 2015, Dr. Ojewoye remarked that Plaintiff reported no new issues with his back and hip pain, though on severe pain days Plaintiff stayed in bed (A.R. 548). Plaintiff received a prescription for narcotic pain medication, which he had never used before, with instructions to use it for severe pain (A.R. 549). On July 23, 2015, Plaintiff described a new right foot pain and relayed that the oxycodone prescription had helped with the pain when the Tylenol and Motrin did not (A.R. 542). On August 27, 2015, Plaintiff saw Orlando Torres, M.D., at HSHC and described his low back pain as “severe, stabbing pain, different from the pain in his right hip” (A.R. 531). Plaintiff stated that his pain was worse going up rather than down stairs and that he used a cane to get around. Plaintiff received a referral to physical therapy.

         On August 6, 2015, Plaintiff was examined by Jordan Greenbaum, M.D., at NEOS for his right hip pain (A.R. 470-72). Dr. Greenbaum recorded Plaintiff’s report of functionality as:

moderate pain, he requires the railing to go up and down stairs, but can go one foot after another. He can get into and out of a car. He finds it moderately difficult to put on shoes and socks. He can do light labor. He finds it a little difficult to sit comfortably. He walks less than 10 minutes without a cane. He feels he has a moderate limp. He uses a cane most of the time. He remains independent with activities of daily living, and most of his instrumental activities of daily living, however, he is no longer able to work

(A.R. 470).

         On musculoskeletal examination, Dr. Greenbaum noted that Plaintiff walked with an antalgic gait on the right, but with no obvious Trendelenburg lurch. Plaintiff had a positive impingement sign and Stinchfield test on the right, but negative on the left. The doctor also noted Plaintiff had a half-inch leg length discrepancy. Upon reviewing Plaintiff’s x-rays, Dr. Greenbaum remarked that there were no significant degenerative changes in the left hip, but that the right hip had a mushroom-shaped appearing femoral head with cystic changes. Further, there were two sclerotic lesions in the proximal femoral metaphysis and mild evidence of dysplasia of the acetabulum, though no significant degenerative changes there (A.R. 471). At the end of the evaluation, Dr. Greenbaum concluded that Plaintiff had mild-to-moderate right hip osteoarthritis secondary to Perthes disease as a child. The doctor opined that the risks of total arthroplasty outweighed the benefits. Therefore, further nonoperative treatment, such as cortisone injections, and further testing, such as imaging of his lower spine, were indicated (A.R. 472). Dr. Greenbaum also remarked, “Finally, although he has a very flattened, abnormal-appearing femoral head and some mild degenerative changes, the joint space is relatively well preserved and, as such, I think to some extent some of his pain and functional limitations are out of proportion to radiographs” (A.R. 472).

         On August 13, 2015, Plaintiff underwent an MRI of his lumbar spine (A.R. 475-76). The images revealed mild lateral disc protrusion and degenerative facet arthropathy at ¶ 4-5 causing mild right-side foraminal stenosis; mild disc herniation and degenerative facet arthropathy at ¶ 5-S1 ...

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