Borino v. Astrue, C.A. No. 12–98–M.

917 F.Supp.2d 166

Maria BORINO, Plaintiff

v.Michael J. ASTRUE, Defendant.

C.A. No. 12–98–M.

United States District Court, D. Rhode Island.

Jan. 18, 2013.

Order Denying Reconsideration March 15, 2013.

Donna M. Nesselbush, Marasco & Nesselbush, L.L.P., Providence, RI, for Plaintiff.

Leslie J. Kane, U.S. Attorney's Office, Providence, RI, for Defendant.

MEMORANDUM AND ORDER

JOHN J. McCONNELL, JR., District Judge.

Plaintiff Maria Borino brings this action for judicial review of the Social Security Commissioner's (“the Commissioner”) final decision, as issued in accordance with the ruling of an Administrative Law Judge (“ALJ”) on September 20, 2011, denying her claim for Supplemental Security Income (“SSI”) and Disability Income Benefits (“DIB”) benefits under Titles II and XIV of the Social Security Act.

Ms. Borino was 40 years old when she stopped working in 2007. For the majority of her working life, she worked part-time as a bartender and as a receptionist at a hair salon. On June 4, 2009, Ms. Borino filed a second application seeking DIB and SSI benefits.¹ In her applicationsfor SSI and DIB, Ms. Borino cited chronic back pain and associated disorders of the back, as well as limiting depression that were both disabling to such a great degree as to preclude her from functioning in a working capacity. The Commissioner initially denied her request. She requested review of her case and a hearing before an ALJ. A hearing occurred on August 18, 2011, during which Ms. Borino and a vocational expert testified. On September 20, 2011, the ALJ determined that Ms. Borino was not disabled in a manner such that she was entitled to receive SSI or DIB benefits. Ms. Borino requested a review of the ruling, which the Appeals Council denied. Upon this denial, the ALJ's decision became the Commissioner's final ruling. Before the Court are Ms. Borino's Motion to Reverse (ECF No. 6) and the Commissioner's Motion to Affirm. (ECF No. 8.)

I. FACTUAL BACKGROUND

In 1979 at the age of 13, Maria Borino underwent surgery to insert Harrington rods in her back, a procedure aimed at alleviating complications caused by scoliosis. X-rays in 2003 showed Ms. Borino suffered from continuing scoliosis of the lower thoracic spine.

In early 2007, Ms. Borino consulted Dr. Alexander Robertson, an orthopedic specialist, for back and leg pain. Dr. Robertson discovered a herniated disc at L5–S1 via MRI and performed surgery, a lumbar discectomy, to correct the defect.

In April of 2007, Ms. Borino saw Dr. Madhavi Yerneni, her primary care physician, who diagnosed her as having L5–S1 radiculopathy, a condition arising from the pinching of nerves due to deformed or damaged discs in the lower spine. Dr. Yerneni also examined Ms. Borino on August 12, 2008 and observed that the range of motion in her lower spine was limited. Dr. Yerneni noted that her reflexes were symmetric and that her neck and gait appeared normal.

In March of 2009, Ms. Borino saw Dr. Robertson twice for follow up examinations. Dr. Robertson found that the sensation in her right leg had been reduced but that her left leg was functioning at 4/5 capacity on a common strength measure. Dr. Robertson also noted no impairments (results were negative) upon her performance of a straight leg raise test for both legs, but that she had some restrictions as to the range of motion of her lumbar spine. Dr. Robertson advised Ms. Borino to perform physical therapy to deal with her pain.

On March 30, 2009, Ms. Borino saw Dr. Petro Karnasias who performed an electrodiagnostic tunnel examination on her right wrist. The tunnel exam uses percussion to discover nerve compression and aids in the diagnosis of carpal tunnel syndrome. The results of the test were positive; however, Dr. Karnasias opined that the test did not show abnormalities consistent with a diagnosis of carpal tunnel syndrome.

On June 26, 2009, Ms. Borino consulted a neurosurgeon, Dr. Curtis E. Doberstein, for her continued back and leg pain. Dr. Doberstein noted decreased sensation and range of motion with accompanying pain in her spine. He also found Ms. Borino's muscular strength to be 5/5 in all groups and that her reflexes were symmetric. Dr. Doberstein then performed an MRI that showed some further complications (left-sided hemilaminotomy and some retrolisthesis) at L5–S1. He diagnosed her with “intractable back and left leg pain.” Dr. Doberstein informed her of only two treatment options: a surgery similar to the one Dr. Robertson performed in 2007 or other more “conservative care” measures. Dr. Doberstein also suggested further imaging of Ms. Borino's back that ultimately showed no evidence of spinal stenosis or disc herniation.

On September 17, 2009, Ms. Borino began outpatient therapy for depression at Tri–Town Community Action Agency.

As part of her disability application process, Dr. John Bernardo, a non-examining state agency physician, review Ms. Borino's records and made a residual functional capacity (“RFC”) assessment on September 17, 2009 that she was not disabled. He found that Ms. Borino (i) could frequently lift ten pounds and only occasionally lift twenty pounds; (ii) could stand or walk for at least two hours during an eight hour workday; (iii) could sit for six hours in a given eight hour workday; (iv) could occasionally climb, balance, stoop, kneel, and crouch; and (v) could never climb ladders or crawl. Another non-examining state agency physician affirmed Dr. Bernardo's opinion.

Ms. Borino again saw Dr. Yerneni who, on June 8, 2010, advised Ms. Borino to continue consulting with Dr. Doberstein and to consider beginning physical therapy. On February 28, 2011, Ms. Borino also consulted with Dr. Elaine Jones who informed her that surgery would be largely ineffective because her primary symptom was pain in the absence of a serious muscular or skeletal impairment. Dr. Yerneni opined on March 25, 2011 that Ms. Borino was disabled and that she (i) could lift or carry no weight at any time; (ii) could sit or stand for only three hours in an eight hour workday; (iii) could walk for only two hours in an eight hour workday; (iv) was limited to occasional reaching, pushing and pulling with her hands; (v) was limited to frequent handling, fingering, and feeling with her hands; (vi) was precluded from climbing, stooping, kneeling, crouching, and crawling, and (vii) could only occasionally balance.

In his decision, the ALJ found that Ms. Borino did have severe impairments, specifically a back disorder and depression. The ALJ however did not find that those impairments qualified her as disabled and that she retained the RFC to perform at least a range of sedentary work. The ALJ found that she could not perform her past work (as a receptionist and bartender), but, based on her age, education, work experience, RFC, and the vocational expert's testimony, she could perform other sedentary work that is available in the economy.

II. STANDARD OF REVIEW

A district court's role in reviewing the Commissioner's decision is limited. Although questions of law are reviewed de novo, “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive[.]” 42 U.S.C. § 405(g) (2000). The term “substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).

The determination of substantiality must be made upon an evaluation of the record as a whole. Ortiz v. Sec'y of Health and Human Servs., 955 F.2d 765, 769 (1st Cir.1991) (“ ‘We must uphold the Secretary's findings ... if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.’ ” (quoting Rodriguez v. Sec'y of Health and Human Servs., 647 F.2d 218, 222 (1st Cir.1981))). In reviewing the record, the Court must avoid reinterpreting the evidence or otherwise substituting its own judgment for that of the Secretary. See Colon v. Sec'y of Health and Human Servs., 877 F.2d 148, 153 (1st Cir.1989). The resolution of conflicts in the evidence is for the Commissioner, not the courts. Rodriguez, 647 F.2d at 222 (citing Richardson, 402 U.S. at 399, 91 S.Ct. 1420).

The court must reverse the ALJ's decision on plenary review, however, if the ALJ applies incorrect law, or if the ALJ fails to provide the court with sufficient reasoning to determine that he or she properly applied the law. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.1999) ( per curiam ), accord Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir.1991). Remand is unnecessary where all of the essential evidence was before the Appeals Council when it denied review, and the evidence establishes without any doubt that the claimant was disabled. Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir.2001) (citing Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir.1985)).

III. APPLICABLE LAW

The ALJ must follow five well-known steps in evaluating a claim of disability. See20 C.F.R. §§ 404.1520, 416.920.² Significantly, the claimant bears the burden of proof at steps one through four, but the Commissioner bears the burden of proving step five, that a claimant's impairments do not prevent her from doing other work that exists in the national economy. Wells v. Barnhart, 267 F.Supp.2d 138, 144 (D.Mass.2003).

In considering whether a claimant's physical and mental impairments are severe enough to qualify for disability, the ALJ must consider the combined effect of all of the claimant's impairments, and must consider any medically severe combination of impairments throughout the disability determination process. 42 U.S.C. § 423(d)(2)(B). Accordingly, the ALJ must make specific and pronounced findings when deciding whether an individual is disabled. Davis v. Shalala, 985...