United States District Court, D. Massachusetts
LUIS A. ROBLES SOTO, Plaintiff,
ANDREW SAUL, Commissioner of Social Security Administration, Defendant.
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. 14 & 16)
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE
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”)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.
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
Standard for Entitlement to DIB
order to qualify for DIB, a claimant must demonstrate that he
is disabled within the meaning of the Social Security
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. §
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.
Security Ruling 96-8p, 1996 WL 374184, at *2 (July 2, 1996).
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
Standard of Review
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).
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).
Records Related to Physical Impairments
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).
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).
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 and coxa plana 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.
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).
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.
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
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
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
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).
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).
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.
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
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
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.
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