United States District Court, D. Massachusetts
ORDER AND MEMORANDUM PLAINTIFF'S MOTION TO
REVERSE THE COMMISSIONER'S DECISION AND THE
COMMISSIONER'S MOTION TO AFFIRM THE COMMISSIONER'S
DECISION (DOCKET NOS. 12 & 13)
TIMOTHY S. HILLMAN DISTRICT JUDGE.
an action for judicial review of a final decision by the
Commissioner of the Social Security Administration (the
“Commissioner” or “SSA”) denying the
application of The Van Ngo (“Plaintiff”) for
Social Security Disability Insurance Benefits because
Plaintiff was not disabled. 42 U.S.C. §§ 405(g),
1383(c)(3). Plaintiff filed a motion to reverse this decision
(Docket No. 12). The Commissioner filed a cross-motion
seeking affirmance (Docket No. 13). For the reasons below,
the Court grants the
Commissioner's motion and
denies Plaintiff's motion.
sustained an injury to his right arm in a workplace accident
on August 30, 2011. Doctors diagnosed him with right elbow
lateral epicondylitis, and he underwent surgery on February
12, 2012. At a follow-up appointment on February 24, 2019,
Thomas Breen, MD (“Dr. Breen”) noted that
Plaintiff was doing well. (AR 688). In Plaintiff's next few
visits, however, Plaintiff complained to Dr. Breen about
stiffness. (AR 686-87).
2, 2012, Plaintiff met with Hillel Skoff, MD (“Dr.
Skoff”), a hand, wrist, elbow, and shoulder specialist.
Dr. Skoff did not observe any visual abnormalities on the
shoulder or discoloration on Plaintiff's skin, but he did
find that Plaintiff had gross loss of motion to the right
shoulder and a severely weak grip. (AR 890). Dr. Skoff
expressed no opinion on whether Plaintiff was permanently
impaired, but he reported that Plaintiff was totally disabled
from holding any occupation. (AR 890-91).
3, 2012, Dr. Breen noted that Plaintiff had less pain but was
very stiff. (AR 685). Dr. Breen recommended that Plaintiff
continue with occupational therapy, which he had begun in
April. (AR 685). On May 17, 2012, and June 21, 2012, Dr.
Breen reported Plaintiff's range of motion had improved
as a result of therapy. (AR 683-84). By August 12, 2012,
however, Plaintiff had stopped receiving therapy, and Dr.
Breen noted a more limited range of motion in the elbow
joint. (AR 682). He recommended manipulation under
anesthesia. (AR 682).
Channell, PhD (“Dr. Channell”) performed a
consultative examination on Plaintiff on July 3, 2012.
According to Dr. Channell, Plaintiff displayed full affect
and had intact attention and concentration. But Dr. Channell
noted that Plaintiff described his mood as
“stressed” and acknowledged recent suicidal
thoughts. (AR 608-09). Dr. Channell diagnosed Plaintiff with
adjustment disorder with depressed mood. (AR 609). But Dr.
Channell did not expect Plaintiff's symptoms to impact
his ability to work and opined that they would improve as
Plaintiff's physical condition improved. (AR 609).
12, 2012, Mark Cutler, MD (“Dr. Cutler”)
performed a psychiatric examination on Plaintiff. Dr. Cutler
diagnosed Plaintiff with pain disorder and depressive
disorder and opined that he was totally disabled from any
occupation. (AR 929-30). Dr. Cutler reiterated these findings
in a November 5, 2012, examination. (AR 933).
2012, Robert McGan, MD (“Dr. McGan”), a state
physician, examined Plaintiff. Dr. McGan opined that
Plaintiff could lift 20 pounds occasionally and 10 pounds
frequently and could handle objects with his right arm
September 23, 2012, assessment, Iris Sullivan, MD (“Dr.
Sullivan”) reported that Plaintiff had no medical
history of any nervous condition, was attentive to his
personal appearance, got along with others, and had no
problems with memory or concentration. (AR 696). Dr. Sullivan
also reported that Plaintiff had not regained major function
with respect to his right elbow lateral epicondylitis. (AR
January 2013, Elaine Hom, MD (“Dr. Hom”), a state
physician, examined Plaintiff. Dr. Hom opined that Plaintiff
could lift 20 pounds occasionally and 10 pounds frequently
and could handle objects with his right arm occasionally. Dr.
Hom also stated that, despite Plaintiff's pain and
reduced range of motion, he could reach overhead, turn, and
twist with his right arm occasionally.
March 22, 2013, Dr. Skoff examined Plaintiff. Dr. Skoff
observed that Plaintiff had a limited range of motion in his
right arm, atrophy in his right shoulder, and poor grip
strength in his right hand. (AR 893). Dr. Skoff rated
Plaintiff has 75% impaired with respect to his right upper
extremity and 45% impaired overall. (AR 894). He opined that
“[i]t is unclear to this observer whether any specific
occupation would fit within this patient's current
capabilities.” (AR 894).
March 26, 2013, assessment, Fred Burke MS PT (“Mr.
Burke”) stated that Plaintiff was limited to sedentary
work. Mr. Burke indicated that Plaintiff could lift 10 pounds
occasionally but could not lift, carry, pull, or otherwise
April 20, 2013, Charles Kenny, MD (“Dr. Kenny”)
examined Plaintiff. He observed a limited range of motion in
the right arm, the inability to make a fist, swelling, and
reddish and brownish discoloration in the area around the
right lateral epicondyle. (AR 773). Dr. Kenny opined that
Plaintiff could only perform sedentary work, with occasional
lifting of 10 pound and no activities above waist level. (AR
Cutler examined Plaintiff again on July 23, 2013, November
18, 2013, and February 10, 2014. Dr. Cutler observed a
markedly depressed mood and found Plaintiff totally disabled
from performing any work. (AR 936-37, 940-41, 944-45).
Skoff examined Plaintiff on August 21, 2013 and January 23,
2014. Dr. Skoff noted that Plaintiff had a limited range of
motion, could not make a fist, and had only 25% of the grip
strength of the contralateral side. (AR 896, 899-900). He
again rated Plaintiff as 75% impaired with respect to the
right upper extremity and 45% impaired overall. (AR 897,
December 23, 2013, Katherine Riggert DO (“Dr.
Riggert”) examined Plaintiff. She diagnosed Plaintiff
with right elbow pain, right shoulder adhesive capsulitis,
and likely chronic regional pain syndrome. (AR 885). And she
opined that Plaintiff could not perform simple grasping,
turning, fine manipulation, or reaching motions; lift or
carry any weight with the right upper extremity; or climb
ladders, stairs, or scaffolds. (AR 885-86). She also
suggested that Plaintiff would perform a job at less than 50%
efficiency. (AR 886).
met with Barbara Sullivan, FNP (“NP Sullivan”) on
February 5, 2014. Plaintiff complained that his fluoxetine
had not helped his depression and that his right hand felt
“different.” (AR 983). NP Sullivan noted the
Plaintiff had a depressed mood, anhedonia, and feelings of
hopelessness, although no suicidal ideation. (AR 983).
February 6, 2014, assessment, Dr. Cutler rated Plaintiff as
markedly limited in the ability to maintain concentration and
regularly attend work and moderately limited in the ability
to work with others and interact appropriately in public. (AR
949). He opined that Plaintiff would be off-task 25% of the
time, would miss 3 days of work a month, and would perform at
40% efficiency. (AR 950).
April 3, 2014, June 18, 2014, and August 20, 2014, NP
Sullivan observed Plaintiff in moderate distress and
significant pain. (AR 967, 971, 979). On November 19, 2014,
Plaintiff informed NP Sullivan that he might have found a job
at a Vietnamese restaurant. (AR 954). He showed mild distress
due to pain on examination, and NP Sullivan noted that he had
right muscle wasting, a limited range of motion, and a
depressed affect. (AR 955).
met with Kristen Jettinghoff, LMHC (“Ms.
Jettinghoff”) on March 2, 2015, for mental health
services. Plaintiff complained to her of racing thoughts,
difficulties concentrating, lack of energy, and depression.
(AR 1130). Ms. Jettinghoff described his mood as depressed
and diagnosed Plaintiff with a mood disorder. (AR 1132-33).
March 16, 2015, NP Sullivan noted that Plaintiff appeared in
moderate distress and showed signs of a depressed and anxious
mood. (AR 1077). She also observed atrophy and weakness of
the muscles in Plaintiff's right arm. (AR 1078).
Plaintiff reported to her that his pain was 5 to 6 out of 10
during the day and increased to 8 out of 10 at night. (AR
Cutler met with Plaintiff on April 6, 2015, and recorded
Plaintiff's mood as markedly depressed. (AR 996).
April 6, 2015, Harvey Clermont, MD (“Dr.
Clermont”) examined Plaintiff. Dr. Clermont observed
discoloration of the skin on Plaintiff's right arm,
limited range of motion in the right shoulder,
Plaintiff's inability to make a fist with his right hand,
and a slight tremor in Plaintiff's right arm that
worsened with activity. (AR 1007-08). In an April 7, 2015,
assessment, Dr. Clermont opined that Plaintiff could not
lift, carry, or manipulate objects with his right arm; could
only lift, carry, or manipulate with his left hand 50% of the
time; and would be off-task at least 25% of the time in an
eight-hour day. (AR 999-1001).
April 7, 2015, examination of Plaintiff, Ms. Jettinghoff
reported that Plaintiff had a euthymic mood with appropriate
affect. (AR 1138).
Alderson, MD (“Dr. Alderson”) met with Plaintiff
several times between April 2015 and May 2016. Dr.
Alderson's treatment records show improvements in
Plaintiff's grip and muscle strength over time. (AR
1022-24, 1066-68, 1171-76). Dr. Alderson also reported that
Plaintiff had normal skin tone and color without a lot of
wasting. (AR 1172, 1173). In his August 22, 2015, assessment,
Dr. Alderson opined that that Plaintiff could not use his
right hand to lift or carry any weight; grasp, turn, or twist
objects; perform fine manipulation of objects; or reach in
front of his body or overhead. (AR 1019).
12, 2015, James Todd, MD (“Dr. Todd”) examined
Plaintiff. Plaintiff complained of stiffness, limited range
of motion, inability to lift or carry, and a burning,
pinching, and squeezing pressure in his right arm. (AR 1012).
Dr. Todd observed tenderness at the nerve root outlets at the
C5, C6, and C7 vertebrae and weakness in Plaintiff's
thumb, index finger, and grip. (AR 1012). Dr. Todd diagnosed
Plaintiff with complex regional pain syndrome, decreased
range of motion, muscle stiffness, and allodynia of the ...