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De Jesus v. Berryhill

United States District Court, D. Massachusetts

September 26, 2019

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




         Plaintiff Jorge Luis de Jesus bring this action under 42 U.S.C. § 405(g) for judicial review of a final decision denying his application for Supplemental Security Income (“SSI”). Plaintiff suffers from a number of physical and mental conditions, including diabetes mellitus, osteoarthrosis, hypertension, sleep apnea, obesity, major depression, anxiety, and post-traumatic stress disorder (“PTSD”). Plaintiff takes issues with the findings of the Administrative Law Judge (“ALJ”) who denied his application as they relate to his physical conditions. Specifically, he contends the ALJ erred by

         (1) finding his bilateral osteoarthritis of the knee to be a non-severe condition, (2) failing to properly evaluate his pain symptoms, and (3) discounting the opinion of his primary care physician. Plaintiff also faults the ALJ for failing to properly consider his English illiteracy in assessing his ability to find gainful employment. Defendant moves to affirm the ALJ’s decision.

         For the reasons set forth below, the Court ALLOWS Plaintiff’s motion to remand (Dkt. No. 16) and DENIES Defendant’s motion to affirm (Dkt. No. 21).


         Plaintiff was 45 years old on March 6, 2015 when he initially filed an application for SSI benefits. Plaintiff grew up in Puerto Rico and stopped attending school in the fourth grade at age 12. Plaintiff moved to the United States in 1993 at age 24. Since coming United States, Plaintiff has worked as a cashier and assistant manager at Dunkin Donuts, a hotel housekeeper, and a hand packer of newspaper fliers. He was last employed in 2012. He is currently homeless and has lived in a shelter since 2010. Plaintiff also has a history of opioid dependence and he was treated with Suboxone through the relevant period.

         I. Medical History [1]

         On November 18, 2011, Plaintiff saw his primary care physician, Dr. Pablo Hernandez, at the South End Community Health Center due to left foot pain. On December 13, 2011, Plaintiff complained to Dr. Hernandez about back pain. On January 8, 2012, Plaintiff went to the emergency room complaining of pain in the left knee and left foot. A lower extremity evaluation revealed tenderness to palpitation of the posterior and medial knee. The left knee evaluation showed, “no deformity, no ecchymosis, no swelling, no hematoma, no erythema, no warmth, full range of motion.” R. 482. The left leg evaluation showed “no abrasions, no crepitus, no ecchymosis, no induration, no lacerations, no obvious deformity, no redness, distal pulses intact, swelling noted, proximally posteriorly, tenderness noted.” Id. The left foot evaluation showed, “no ecchymosis, no swelling, no puncture wounds, no laceration, no hematoma, 5th metatarsal nontender, full range of motion, tendon function normal.” Id.

         On February 25, 2012, Dr. Hernandez examined Plaintiff and noted that Plaintiff was suffering from “hypertension, ” “hypercholesterolemia, ” “open fracture shaft of tibia, ” “obesity, ” and “diabetes mellitus.” R. 446. On June 11, 2012, Plaintiff again reported experiencing pain in his left shoulder. Dr. Hernandez noted that Plaintiff had a limited range of motion and that the pain was exacerbated if Plaintiff kept his arm in the same position for a prolonged period of time. The intensity of the pain was recorded as 8/10. Plaintiff continued to complain of severe left shoulder pain at a follow-up visit with Dr. Hernandez in July 2012 and an emergency room visit in August 2012.

         On September 27, 2012, Plaintiff returned to Dr. Hernandez complaining of lower back pain that radiated to his feet and which was exacerbated by the cold. Plaintiff also complained of knee pain radiating to his feet, increased pain in the cold, and difficulty ambulating. Dr. Hernandez noted that Plaintiff had no noticeable swelling but did have tenderness to several maneuvers, a mild decrease in muscle strength over the left shoulder, and knee pain. Plaintiff rated his pain as 10/10. Dr Hernandez prescribed him Indomethacin 50 mg and Percocet 325 mg for the pain.

         A month later, on October 29, 2012, Plaintiff again complained of severe lower extremity pain involving his knees, ankle, and feet. Plaintiff reported to Dr. Hernandez 9/10 pain intensity that had worsened with the onset of cold weather. Plaintiff also reported that usually 10 mg of oxycodone a day was enough to carry on daily activities but that none of the other medications he tried over the past two years had really worked.

         On that same day, a rheumatologist, Dr. Patrick Hook, examined Plaintiff for bilateral lower extremity pain. Dr. Hook noted Plaintiff’s “physical exam is largely benign with no suggestion of an underlying inflammatory arthritis.” R. 519. “[Plaintiff’s] inflammatory markers . . . were unremarkable.” Id. Dr. Hook also opined that Plaintiff, “may be experiencing some symptoms of patellofemoral syndrome mostly in his right knee.” Id. He noted that Plaintiff was getting “adequate pain relief from Percocet, ” but prescribed Voltaren cream for additional pain relief. Id. Dr. Hook also urged Plaintiff to lose weight to aid in relieving bilateral knee symptoms. Id.

         On November 1, 2012, Plaintiff was seen by his new PCP, Dr. Christine Pace at Boston Medical Center. Dr. Pace noted many of the same ailments identified by Dr. Hernandez, including that Plaintiff had been suffering from bilateral knee pain, pain in his left forearm, and back chronic pain. Dr. Pace wrote that Plaintiff was not able to sit or walk for prolonged periods of time. She also noted that Plaintiff had a “[m]oderate functional limitation but was able to work a few mo[nth]s ago without limit.” R. 532. Due to opioid-related concerns and “[the] unremarkable exam without a lot of provoked pain, ” Dr. Pace concluded “it is not clear to me that [additional] opioids are needed at this point.” Id.

         During an appointment in December 2012, Plaintiff reported to Dr. Pace that the Percocet was “very helpful for pain.” R. 545. On February 11, 2013, however, Plaintiff reported to Dr. Pace that his knee pain had worsened despite still taking Percocet. He also reported that prolonged sitting was exacerbating the problem. Dr. Pace’s notes indicated “knee exam is quite benign, minimally tender today.” R. 580. She prescribed physical therapy, “education, evaluation, and treatment for bilateral knee osteoarthritis and possible patellofemoral syndrome.” R. 579.

         Throughout 2013, Plaintiff continued to complain of knee pain, and he underwent several x-ray examinations to get to the bottom of the problem. On March 6, 2013, Plaintiff reported to Dr. Pace that he was unable to exercise because of “injured knees.” R. 587. Plaintiff stated that he had “been gaining weight since stopped playing basketball.” Id. On April 14, 2013, an x-ray of the left knee revealed “[m]ild tricompartmental degenerative changes characterized by osteophyte formation and spiking of the tibial spines.” R. 593. The x-ray also revealed “[n]o evidence of acute fracture or subluxation.” Id. An x-ray of the right knee, taken on December 5, 2013, revealed “[s]mall osteophytes emanating from the tibial spines and of the patella, ” “[m]ild degenerative change, ” “[m]oderate suprapatellar effusion, ” and “no acute fracture.” R. 366. On December 6, 2013, Dr. Pace informed Plaintiff that another x-ray “showed some arthritis and some swelling, ” and referred him to the injection clinic to see if steroid injections might help with the pain. R. 636. On January 15, 2014, Dr. Pace noted that Plaintiff has “constant bilat[eral] knee pain with intermittent swelling, ” that it is “worse in [the] cold, ” and that “pain impairs sleep.” R. 370. Dr. Pace prescribed Ibuprofen 600 mg and ice as well as a follow-up at the injection clinic and physical therapy. On January 31, 2014, Plaintiff reported to another doctor at Boston Medical Center, Dr. Jason Worcester, that the pain in his knees was “8/10” but that he had “no other joint pains.” R. 353-354. Dr. Worcester noted that both knees exhibited no deformities, warmth, erythema, or anterior/posterior drawer, no effusion on the right and bilaterally good stability and full range of motion and intact sensation. R. 353. Dr. Worcester administered a right knee injection and recommended physical therapy. Plaintiff then returned to Dr. Worcester for an injection in his left knee on February 28, 2014. Dr. Worcester noted that the previous injection on Plaintiff’s right knee provided “good relief” and that “[the knee] has remained relatively pain free except when [Plaintiff] does a lot of walking.” R. 332. Plaintiff reported “no other complaints” at that time. Id.

         On June 6, 2014, Dr. Worcester examined Plaintiff and gave him another steroid injection in his right knee. Dr. Worcester noted, “R knee small effusion w/o warmth or erythema, ” “good lat[eral] and med[ial] stability, ” “full range of motion, ” “ crepitus, ” “negative mcmurrays, ” “hip/ankle are normal.” R. 326. Plaintiff indicated that he “rides a stationary bike, ” and “plays basketball at times, ” but that he had “not gone to physical therapy.” Id. Dr. Worcester also wrote that “[range of motion] and streng[th] exercise were reviewed” with the Plaintiff. R. 328. On August 27, 2014, Plaintiff reported to Dr. Pace that he had an injection over the summer that was helpful but that the pain his knees had returned. Dr. Pace wrote that Plaintiff was benefiting from the steroid injections.” Dr. Pace also noted Plaintiff was “referred to PT last visit, never went, placed referral again.” R. 349. Dr. Pace directed Plaintiff to follow up in 6-7 months. On February 24, 2015, Plaintiff returned to Dr. Pace reporting that his knees continued to be “very painful in cold weather.” R. 320. Dr. Pace noted that Plaintiff was “non-compliant with PT, ” and again referred him to physical therapy for his knee pain. R. 321.

         On March 24, 2015, Plaintiff visited an orthopedist at Boston Medical Center, Dr. Alysia Green, for treatment of his chronic knee pain. Plaintiff reported to Dr. Green that he was experiencing bilateral knee pain, ranking it as 7/10. He also stated that movement aggravates the pain and that he was not taking any daily pain medications. Dr. Green recorded “tenderness to palpation over the medial patellar retinaculum bilaterally as well as the medial joint lines. There is mild crepitus and he has pain with patellofemoral grind testing.” R. 687-688. She also noted, “no bony defect, [n]o swelling, [n]o effusions, [n]o tenderness to palpation over the patellar or patella tendons.” R. 687. X-rays taken that day showed “fragmentation of the lateral tibial spine [in the right knee]” as well as “some mild degenerative changes in the medial and lateral compartments of the right knee with mild degenerative changes in just the medial compartment of the left. No. loose joint bodies.” R. 405, 688. Dr. Green reviewed the x-rays with Plaintiff and chose to hold off on further injections. R. 688. Dr. Green noted, “[t]he patient was agreeable to [no injections]. He is going to start his physical therapy so we will start more conservatively.” R. 688.

         On June 24, 2015, Plaintiff saw Dr. Pace and reported “[h]aving occ[asional] peripheral edema, sometimes bad, in legs bilaterally.” R. 1057. In the objective physical exam, Dr. Pace recorded “[m]ild medial patellar tpp, mild crepitus.” Id. A month later, Plaintiff went back to Dr. Pace. Plaintiff reported he had an upcoming appointment for an injection and that he was “[b]iking 3x/wk using helmet.” R. 1060. Dr. Pace noted that Plaintiff had gained about fifteen ...

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