Mercado v. Saul

SANTIAGO ROSARIO MERCADO, Plaintiff, v. ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.

CIVIL ACTION NO. 19-CV-11172-WGY

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

May 26, 2020

YOUNG, D.J.

MEMORANDUM AND ORDER OF DECISION

This is an appeal of the final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying an application for Social Security disability insurance benefits. The plaintiff Santiago Rosario Mercado ("Mercado") appeals the denial arguing that it was not supported by substantial evidence under the Social Security Act, 42 U.S.C. § 405(g); the Administrative Law Judge erred as a matter of law in not weighing all medical opinions under 20 C.F.R. § 404.1527; and, on Appointments Clause grounds. Compl., Ex. 3, Addendum to Compl., ECF No. 1-3; Pl.'s Mot. Reverse Commissioner's Decision ("Pl.'s Mot.") 3, ECF No. 21.

Pending before this Court are Mercado's motion to reverse and the Commissioner's motion to affirm the Commissioner's final decision. Pl.'s Mot.; Def.'s Mot. Affirm Decision Commissioner ("Def.'s Mot."), ECF No. 24; Mem. Supp. Def.'s Mot. Affirm Commissioner Decision ("Def.'s Mem."), ECF No. 25. For the reasons stated below, this Court DENIES the Commissioner's motion to affirm and REMANDS the case for further proceedings to a new, properly appointed, Administrative Law Judge ("ALJ").

I. INTRODUCTION

On May 23, 2019 Mercado filed for reversal of the Commissioner's decision to deny his disability benefits, arguing that neither the ALJ who heard his case nor the Appeals Officer who denied review were properly appointed under the Appointments Clause. See Compl., Pl.'s Mot. 7-10. The Commissioner argues that Mercado waived these challenges. Def's Mem. 1. Mercado also argues that the ALJ erred in: 1) not weighing all the medical opinions or disposing of them with reason, 2) failing to obtain a medical expert opinion regarding the remote onset date, 3) determining that Mercado could do the jobs listed with his residual functioning capacity level, 4) not "gridding" Mercado out, 5) considering a vocational expert's opinion from a prior hearing, and 6) failing to consider Mercado's headache pain in determining his residual functioning capacity. Pl's Mot. 11-17.

A. Procedural History

Mercado has filed several claims for disability insurancebenefits at different times. See SSA Admin. Record Social Security Proceedings ("R.") 26-27, ECF No. 18.¹ Mercado filed the claim in question on September 30, 2014 for disability insurance benefits, Addendum to Compl. 3., where he alleged disability since June 26, 2006, R. 27. That claim was denied on March 4, 2015. R. 28. Mercado requested reconsideration of that decision and it was denied again. Id. Mercado then requested a hearing, held on October 26, 2015, prior to which he amended his onset date to December 30, 2011, the day before his date last insured. R. 29, see R. 516. Another hearing was then held on March 17, 2016 to discuss if administrative finality barred the September 30, 2014 application. R. 29, 112. ALJ Fulton denied the September 2014 claim stating that the prior application barred the action under res judicata, and thatMercado was not disabled. R. 29, 213, 230. Mercado appealed that denial and the Appeals Council vacated and remanded the case with instructions to hold a new hearing. R. 240-44. This new hearing was held on May 23, 2017.² R. 132-140. On August 1, 2017 the ALJ found that res judicata could not bar the September 30, 2014 application because of new regulations, but denied the claim on the merits. R. 52. In September of 2017, the Appeals Council denied review of this claim, making the ALJ's decision final. R. 1.

Mercado was granted an extension to file a civil action, and he timely filed this complaint on May 23, 2019 against Nancy A. Berryhill, Acting Commissioner of Social Security (later replaced by Andrew Saul, Commissioner of Social Security).³ Compl. 1; Addendum to Compl. 4. The Commissioner answered. Answer Compl. 1, ECF 17. Mercado then filed for reversal of the August 1, 2017 decision of the Commissioner (the "decision"), Pl.'s Mot. 1, and the Commissioner filed to affirm. Def.'s Mot. 1. This Court heard oral argument on these motions on February11, 2020 and took the issue under advisement. See Electronic Clerk's Notes, ECF no. 35.

B. Factual Background

1. Education and Occupational History

Mercado was born on April 8, 1961 and was 50 years old at the alleged onset date, December 30, 2011, and the date last insured, December 31, 2011. R. 51, 141, 157. He served as a soldier in the U.S. Army from 1979 through 2006, reaching the rank of Staff Sergeant. R. 565. He has past relevant work as an engine rebuilder, R. 50, a high school education, and can communicate in English, R. 51.

2. Physical Impairments

In 2006, Mercado was injured in Iraq when his vehicle swerved to avoid a roadside bomb and collided with a tree. R. 151. In Mercado's disability report he alleged disability due to post-traumatic stress disorder ("PTSD"), panic disorder, depression, neck injury, and arthritis. R. 564. Mercado has not engaged in substantial gainful activity from the alleged onset date to the date last insured. R. 35. Mercado's physical impairments include degenerative disc disease with cervical radiculopathy, Hepatitis C, and decreased hearing controlled with hearing aids. R. 35, 189. He has also been diagnosed with hyperlipidemia, gastroesophageal reflux disease, headaches, and knee arthralgia. Id.

3. Mental Impairments

Mercado suffers from several mental impairments including PTSD, organic mental disorder, affective disorder, anxiety disorder, depression with occasional suicidal ideation, and substance abuse. R. 184. Mercado also has limited memory capabilities. R. 183.

a) Medical Record and Treatment

On March 6, 2007 Mercado received decompression and fusion surgery on his spine due to his 2005 injury. R. 1786. He also received an MRI which showed "degenerative changes." R. 1527. An E.M.G. examination revealed radiculopathy. R. 1237, 1256. Mercado had visits to the hospital for overdosing on medications in April and October 2012, and for depression in January 2013. R. 985, 2644. Mercado was seen for a potential traumatic brain injury on May 19, 2011, but the Veterans Affairs Medical Clinic concluded there was no evidence of it. R. 815, 818.

Dr. Stetson of the Veterans Affairs Medical Clinic, on March 10, 2011, indicated to the Veterans Affairs Regional Office that Mercado was "unemployable due to PTSD and associated depression." R. 1466. Dr. Lawson saw Mercado in June 2011 regarding a previous disability application filed in 2010, and noted reports of forgetfulness, pain, depression, trouble sleeping, lack of appetite, and that he could complete minimalself-care activities but very little household chores. R. 764-767.

Mercado received several neck injections to help with pain in October 2011, and in January, March, May, July, and November of 2012. R. 818, 876, 40-42. Mercado intermittently sought psychiatric help and was medicated with Venlafaxine, Mirtazapine, and Lorazepam. R. 865-66, 3440. Though Mercado would report that his medicine was helpful, his refill records were occasionally sparse, except for in October 2016, after he reconnected with an old girlfriend. R. 3440-447.

Mercado was seen by Dr. Dewolfe in October 2011 who noted functional loss due to his spinal injury which included decreased flexion/extension of neck and mild intermittent pain. R. 808, 811. He was seen again by Dr. Stetson at the Veterans Affairs Medical Clinic, just two weeks later, who noted PTSD, dysthymia, and alcohol abuse. R. 865-68. Dr. Stetson continued Mercado's medications and noted a global assessment of function ("GAF") of 45.⁴ R. 865. Dr. Stetson noticed that Mercado seemed cognitively aware and in good spirits. R. 866.

Mercado was also examined by Lisa Fitzpatrick, a psychologist, in connection with his disability claim. R. 171. Dr. Fitzpatrick stated that his mental impairments were severe, and that he would have mild limitations in most daily life activities, with a moderate limitation in concentration. R. 171-78. She noted Mercado's issues with memory but stated that his medications were working well. R. 174. She further stated that Mercado "could carry out short, simple instructions, could concentrate for two-hour periods at a time, and could interact appropriately." R. 176.

In December 2013, Mercado presented at the Veteran's Affairs Medical Clinic to see a neurologist with pain symptoms stemming from his neck injury. R. 2643-44. In January 2014 Mercado tried to get psychiatrist Dr. Milliken-Zumel to increase the dosage on his medications. R. 994, 1000. For most of 2014, Mercado was stable and reported exercising regularly and even completed an 8-mile bike ride. R. 1209. Mercado was happy with his medication management, although he did still suffer from depression, anxiety, and neck pain. R. 1199-1202.

On January 14, 2015, the non-evaluating physician Dr. Draper evaluated Mercado's September 2014 application and determined that, for the period under consideration of June 2006 to December 2011, R. 146, Mercado would be limited to only occasional pushing or pulling with either upper extremity, withonly occasional climbing, balancing, stooping, kneeling, crouching, or crawling, could stand for 6 hours out of an 8 hour work day, could lift 20 lbs. occasionally, and would need to avoid concentrated exposure to noise, vibration, and hazards. R. 149-151.

On February 4, 2015 Mercado was seen by Steven Broder, Ph.D. with the Disability Services for a consultative examination. R. 1227-34. Here, Mercado stated he lived alone and did not have many friends, had a sporadic sleep schedule, and "sometimes does not eat for a day or two at a time." R. at 1230. Broder also noted Mercado was doing daily chores around the house and that his cognitive tests showed "claimant's abilities generally...