Myers v. Berryhill, Case No. 3:18-cv-30122-KAR

ROBERT MYERS, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

Case No. 3:18-cv-30122-KAR

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

August 21, 2019

MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION FOR ORDER REVERSING THE COMMISSIONER'S DECISION AND DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

(Docket Nos. 22 & 29)

ROBERTSON, U.S.M.J.

I. INTRODUCTION

Robert Myers ("Plaintiff") brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking review of a final decision of the Acting Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI"). Plaintiff applied for SSI on March 18, 2014, alleging an October 1, 2013 onset of disability due to degenerative disc disease ("DDD") and learning difficulties (A.R. at 87, 153).¹ On April 14, 2017, the Administrative Law Judge ("ALJ") found that Plaintiff was not disabled and denied his application for SSI (A.R. at 70-86). The Appeals Council denied review (A.R. at 6-9) and, thus, Plaintiff is entitled to judicial review. See Smith v. Berryhill, 139 S. Ct. 1765, 1772 (2019).

Plaintiff appeals the Commissioner's denial of his claim on the ground that the decision is not supported by "substantial evidence" under 42 U.S.C. § 405(g). Pending before this court are Plaintiff's motion requesting that the Commissioner's decision be reversed or remanded for further proceedings (Dkt. No. 22), and the Commissioner's motion for an order affirming the decision of the ALJ (Dkt. No. 29). The parties have consented to this court's jurisdiction (Dkt. No. 10). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the reasons stated below, the court will grant the Commissioner's motion for an order affirming the decision and deny Plaintiff's motion.

II. FACTUAL BACKGROUND

Plaintiff presents multiple grounds supporting his contention that the Commissioner's decision should be reversed or remanded (Dkt. No. 22-1). Because Plaintiff's arguments mostly concern Plaintiff's back condition and mental health, the background information will be limited to the facts that are relevant to those issues.

A. Plaintiff's Educational Background and Work History

Plaintiff was forty-seven years old on the date of the July 14, 2016 hearing (A.R. at 626, 633). He was married and lived with his wife and five of his seven children whose ages ranged from nineteen to ten (A.R. at 154, 633, 666). Plaintiff left school in the tenth grade and had worked delivering newspapers, driving a taxi, and washing dishes (A.R. at 186). In July 2013, he began stocking shelves, doing maintenance work, and operating the cash register at an Ocean State Job Lot store where he frequently lifted fifteen to twenty pounds and occasionally lifted fifty pounds while performing his duties (A.R. at 186, 634, 635, 636-37, 639). Plaintiff stopped working at Ocean State Job Lot in March or April 2014 because he failed to adhere to his work schedule and had too many "infractions" (A.R. at 634, 642-43, 644).

B. Plaintiff's Physical Condition

On October 20, 2013, about two months after Plaintiff started the new job that involved lifting heavy objects, he presented at the emergency department of the North Adams Regional Hospital complaining of left flank pain associated with "lifting, motion or positioning" (A.R. at 325). The condition was diagnosed as "likely musculoskeletal in nature" (A.R. at 326). Plaintiff was advised to take ibuprofen and to rest and avoid heavy lifting (A.R. at 326).

Plaintiff was seen in the North Adams Regional Hospital emergency department seven days later for anxiety (A.R. at 319, 320). Plaintiff reported that ibuprofen had relieved his back pain and he was attempting to change the way he lifted heavy objects (A.R. at 319). A physician's palpation of Plaintiff's paralumbar muscles produced minimal discomfort (A.R. at 320). Plaintiff was discharged after receiving Ativan (A.R. at 320).

Two days later, on October 29, 2013, Plaintiff visited his PCP, Shaohua Tang, M.D. of Integrative Medicine in North Adams, complaining of low back pain and discomfort in his left groin area (A.R. at 394). He reported that his job entailed "a lot of lifting" (A.R. at 394). There was mild tenderness in his lumbar area and his lumbar flexion was "slightly limited" by pain (A.R. at 395). There was no muscle atrophy or costovertebral angle ("CVA") tenderness (A.R. at 395). Dr. Tang advised Plaintiff to avoid lifting or carrying heavy objects and doing "strenuous physical work" (A.R. at 395).

Plaintiff visited the emergency department the next day, October 30, 2013, again complaining of pain in his left flank, hip, and back (A.R. at 309). Plaintiff's sensory and motor functions were intact (A.R. at 309). An x-ray of Plaintiff's lumbar spine revealed disc space narrowing at L5-S1 with degenerative changes (A.R. at 311). Minor spondylolisthesis and spondylolysis were also observed (A.R. at 311, 392). The diagnosis was back pain with left lumbar radiculopathy (A.R. at 310).

The record of Plaintiff's visit to Dr. Tang on November 5, 2013 indicates that Plaintiff's low back pain was mainly on the left side and moved down his left leg (A.R. at 392). The physical examination of his back revealed mild tenderness in the lumbar area (A.R. at 393). Lumbar flexion was "slightly limited" due to pain (A.R. at 393). The straight leg elevation test showed "65 degrees [on the] left side" and "80 degrees [on the] right side" (A.R. at 393). There was no muscle atrophy or CVA tenderness (A.R. at 393). Dr. Tang discussed treatments for DDD and repeated his instructions to avoid lifting or carrying heavy objects and performing "strenuous physical work" (A.R. at 393). Plaintiff indicated that he wanted to try an injection treatment (A.R. at 393).

During Plaintiff's January 15, 2014 visit to Dr. Tang, he reported low back pain and leg numbness "from time to time" (A.R. at 390). Plaintiff stated that he was performing "physical work with lots of bending and lifting" (A.R. at 390). Dr. Tang's examination of Plaintiff's lumbar area revealed mild tenderness, normal range of motion, no muscle atrophy, no CVA tenderness, and no peripheral edema (A.R. at 391). Dr. Tang advised Plaintiff to avoid "prolonged" walking and standing, heavy lifting or carrying, and "strenuous physical work" (A.R. at 391). Dr. Tang reviewed Plaintiff's October 2013 x-ray and characterized Plaintiff's DDD as "mild" (A.R. at 39). He ordered an MRI study (A.R. at 391).

Plaintiff returned to the emergency department on January 17, 2014 with complaints of left lower quadrant discomfort and back pain without radicular symptoms down either leg (A.R. at 301). The physical examination revealed that Plaintiff's gait and motor and sensory reflexes were within normal limits (A.R. at 301). He was instructed to take ibuprofen (A.R. at 303).

Plaintiff underwent an MRI of his lumbar spine on January 27, 2014 (A.R. at 299). The impression was that Plaintiff had mild, grade 1 anterolisthesis of L5 on S1 due to bilateral parsdefects (A.R. at 299). "This [was] associated with a diffuse annular bulge and vertebral body spurring, all of which combine[d] to result in severe left and moderate right foraminal narrowing. The left L5 nerve root appear[ed] compressed" (A.R. at 299-300).

Plaintiff returned to Dr. Tang on January 31, 2014 and reported that he had reduced his physical activities and his back pain was "somewhat better" (A.R. at 388). However, he had mild numbness in his left leg and "some pain" in his right leg (A.R. at 388). Dr. Tang's physical examination of Plaintiff's back revealed mild tenderness in the lumbar area (A.R. at 389). The lumbar range of motion and straight leg elevation on both sides were normal (A.R. at 389). There was no muscle atrophy, CVA tenderness, or peripheral edema (A.R. at 389). Dr. Tang instructed Plaintiff to "avoid heavy lifting and carrying," perform lumbar stretching exercises and local massage, and use a heating pad (A.R. at 389).

When Plaintiff saw Dr. Tang on March 20, 2014 with complaints of neck pain, he indicated that his back pain was "not so bad lately" (A.R. at 385). Dr. Tang examined Plaintiff's lower back (A.R. at 386). His observations were consistent with those of the prior visit; that is, mild tenderness, normal range of motion of the cervical spine, and no muscle atrophy, CVA tenderness, or peripheral edema (A.R. at 386). Dr. Tang indicated that Plaintiff's low back pain appeared "relatively stable" and was "not . . . bothering [him] now" (A.R. at 386). The physician "encouraged [Plaintiff] to do suitable physical work, but [to] avoid heavy physical work" (A.R. at 386).

Plaintiff completed a Social Security Administration ("SSA") Work Activity Report on March 26, 2014 indicating that he could lift twenty pounds (A.R. at 192, 198). On Plaintiff's March 30, 2014 Questionnaire on Pain, he indicated that medication relieved his pain for about six hours, although he could still feel it (A.R. at 202-03).

The notes of Plaintiff's May 1, 2014 visit to Dr. Tang indicated that Plaintiff was generally "feeling fine" (A.R. at 383). Again, Dr. Tang observed mild tenderness in Plaintiff's lower cervical spine, normal cervical spine range of motion, no muscle atrophy, and no peripheral edema (A.R. at 384).

On June 6, 2014, Plaintiff reported that his back pain was five on a ten point scale and was "relatively stable" (A.R. at 381). Dr. Tang noted that Plaintiff's back condition was the same as the previous month (A.R. at 382). Plaintiff received lidocaine injections into eight trigger points in his low back (A.R. at 382).

During Plaintiff's September 10, 2014 visit to Dr. Tang, he reported that he still experienced low back pain, but the trigger point injections enabled him to function (A.R. at 378). The results of Dr. Tang's physical examination of Plaintiff's lumbar area remained the same: mild tenderness; normal range of motion; no muscle...