Forrette v. Saul

CHRISTOPHER J. FORRETTE, Plaintiff, v. ANDREW M. SAUL, Commissioner of the Social Security Administration,¹ Defendant.

Civil No. 3:19-cv-30089-KAR

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

September 29, 2020

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION TO AFFFIRM THE COMMISSIONER'S DECISION (Dkt. Nos. 15 and 17)

ROBERTSON, U.S.M.J.

I. Introduction and Procedural History

Christopher J. Forrette ("Plaintiff") brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff applied for DIB and SSI on September 22, 2016, alleging an onset date of December 12, 2015 (Administrative Record ("A.R.") 263-269). At the outset, Plaintiff claimed disability due to cervical spine degeneration, bulging discs and minor scoliosis of the thoracic spine, sleep apnea, depression, anxiety, and substance abuse (A.R. 290). His applications were denied initially (A.R. 108-145) and onreconsideration (A.R. 146-182). He requested a hearing before an Administrative Law Judge ("ALJ") (A.R. 203-204), and one was held on May 18, 2018 (A.R. 48-107). On August 30, 2018, the ALJ issued an unfavorable decision (A.R. 25-47). Plaintiff sought review by the Appeals Council (A.R. 256-262), which denied relief (A.R. 2-7). 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 by not assessing controlling weight to the opinion of his treating physician and by improperly diminishing Plaintiff's credibility. Pending before this court is Plaintiff's motion for an order reversing the Commissioner's decision (Dkt. No. 15), and the Commissioner's motion for an order affirming the Commissioner's decision (Dkt. No. 17). 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 DENIES Plaintiff's motion and GRANTS the Commissioner's motion.

II. Legal Standards

A. Standard for Entitlement to DIB and SSI

In order to qualify for DIB and SSI, a claimant must demonstrate that he is disabled within the meaning of the Social Security Act.² A claimant is disabled for purposes of DIB and SSI 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), 1382c(a)(3)(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 hisage, 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), 1382c(a)(3)(B). 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).³ The hearing officer must determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant suffers from a severe impairment; (3) whether the impairment meets or equals a listed impairment contained in Appendix 1 to the regulations; (4) whether the impairment prevents the claimant from performing previous relevant work; and (5) whether 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 Commissioner must make an assessment of the claimant's RFC, which the Commissioner 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 F. App'x 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 F. App'x. at 6. 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. Relevant Facts

A. Plaintiff's Background

Plaintiff was thirty-five years old on the date of the hearing before the ALJ (A.R. 38, 263). He has a G.E.D., attended some college, and obtained a commercial driver's license (A.R. 64, 66, 291). He has worked as a garbage collection supervisor, a garbage truck driver, a tow truck operator, an assembler, and a cashier (A.R. 38, 60-67, 305).

B. Medical Record Relative to Plaintiff's Claims⁴

On September 28, 2015, Plaintiff presented to Paul Azimov, D.O., with Riverbend Medical Group for follow-up for neck pain and cervical radiculitis (A.R. 514). Plaintiff was off narcotic medications and had started receiving suboxone (A.R. 514). Plaintiff had been started on gabapentin, which was "definitely working;" his pain was manageable on his current dose (A.R. 514). Plaintiff had restricted extension and left rotation of the cervical spine, but his bilateral shoulder, elbow, and wrist range of motion were within normal limits (A.R. 514). A Spurling maneuver was negative, his neurologic functioning was intact, and he had no difficulty walking or going from sitting to standing (A.R. 516). Review of an October 2014 cervical MRI showed possible nerve-root compression at C4, C6, and C7 (A.R. 516-517). Dr. Azimov'simpression was of persistent neck and mid-back pain status post cervical discectomy on October 18, 2010 and April 20, 2014 (A.R. 518).

On August 2, 2016, Plaintiff saw Jessica Anchor-Samuels, M.D., with Riverbend Medical Group for neck pain (A.R. 499). Plaintiff reported that he was doing very poorly despite being out of work for six months and avoiding strenuous activity (A.R. 499). Plaintiff's neck and arms were worse, and he was getting severe pain attacks every few days, making it difficult to get out of bed (A.R. 499). He reported right arm numbness and left arm pain and numbness, as well as muscle twitching (A.R. 499). Upon physical examination, Plaintiff had mild midline cervical tenderness at the lower vertebrae, mild pain to palpation in the cervical and thoracic spine midline and paraspinous muscles, decreased sensation in the right arm, and pain radiating down the left arm (A.R. 501). Dr. Anchor-Samuels determined that an updated MRI was needed (A.R. 501).

Plaintiff presented for the MRI of his cervical spine on August 14, 2016 (A.R. 445). The MRI showed "substantially increased left posterior disc osteophyte complex at C6-7 with lateral recess narrowing and minimal impression on the anterior cord" (A.R. 445). In addition, it was noted that there had been "some progressions of neuroforaminal on the left at this level as well, now severe" (A.R. 445).

Plaintiff saw Dr. Anchor-Samuels again on September 20, 2016 (A.R. 494). Plaintiff...