Opinion
CIVIL ACTION NO. 06-10453-PBS.
September 7, 2007
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff Robert E. Shallies challenges a decision of the Commissioner of the Social Security Administration denying his claim for Social Security Disability Insurance benefits. For the reasons set forth below, the plaintiff's motion to reverse is DENIED and the Administrative Law Judge's order is AFFIRMED .
II. FACTUAL BACKGROUND
A. Procedural History
On October 17, 2003, plaintiff Robert Shallies, a 47-year-old male with a high school diploma, filed a claim for Social Security Disability Insurance ("SSDI") benefits under Title II of the Social Security Act. Plaintiff alleges that he has been disabled since May 30, 2001 due to an industrial accident resulting in a left hip fracture and back pain. The claim was denied initially and on reconsideration. A hearing was held on May 20, 2005, at which plaintiff testified. The Administrative Law Judge ("ALJ") denied plaintiff's claim on November 29, 2005. On January 20, 2006, the Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner.
B. Employment History
Plaintiff was a forklift operator at a warehouse from 1985 to 1997. Plaintiff was employed as a cook from 1999 through his accident in May 2001 and continued cooking in a light duty capacity until May 2004. The special light duty position was created specifically for him to accommodate his injuries. The wages from the part-time job paid at times more and at times less than the amount required to equal substantial gainful activity. This position was created at the behest of the worker's compensation insurer. Shallies settled his worker's compensation claim on April 19, 2005 for $12,500.
Plaintiff was monitored continuously by doctors who cleared him for light or sedentary work for up to four hours per day. In August 2003, on light duty, plaintiff slipped on some grease, landing on his back. Plaintiff continued to work four hours per day until May 10, 2004 when he was told to stop working. Plaintiff has not worked since then.
C. Medical History
On May 30, 2001, plaintiff suffered a left hip non-displaced fracture in an accident while operating a motorized jack at work. Plaintiff's orthopedist, Dr. Iocono, did not allow Shallies to return to his previous position for two months, but stated that plaintiff could work in a sedentary position. (Tr. 190.) By September 2001, plaintiff was able to maintain light duty, sedentary employment for four hours per day. Despite persistent back and leg pain, plaintiff only used over-the-counter medications. (Tr. 188.) An MRI on November 12, 2001 showed "degenerative disc disease at the L1-L2 level, a bulging disc between L3-L4 and a small annular tear at the L5-S1 level." (Tr. 18.)
In December of 2001, plaintiff was experiencing leg pain, but was using a cane and was able to work in light duty for four hours a day, five days a week. (Tr. 186.) In January of 2002, plaintiff expressed that he was experiencing less and less pain, and would soon be assuming a supervisory role at work that would involve less lifting. (Tr. 185.) By March of 2002, plaintiff showed "no obvious distress" and had just a minimal limp. (Tr. 184.) Dr. Iacono advised him to continue light work and suggested retraining for a more sedentary occupation which did not require repetitive standing, bending, and lifting. (Id.)
On November 27, 2002, plaintiff went to the emergency room at Brockton Hospital, seeking treatment after slipping and falling on ice at his home. (Tr. 152-54.) In December of 2002 and February of 2003, plaintiff received epidural steroid injections for his pain. (Tr. 251, 253.) On February 28, 2003, when plaintiff complained of increasing pain and an inability to tolerate more than four hours of work, Dr. Iacono again suggested retraining for a sedentary position. In March of 2003, plaintiff received a third epidural steroid injection. (Tr. 249.) At this time, plaintiff was using primarily ibuprofen for the pain in his back and left leg. (Tr. 179.) His doctor recommended retraining for a sedentary position. (Id.) A July 14, 2003 MRI of plaintiff's lumbar spine showed "minimal disc bulging at L3/L4 and L4/L5 and L5/S1 without evidence of cord compression or spinal canal stenosis." (Tr. 205.)
On August 7, 2003, plaintiff was again treated at the Brockton Hospital emergency room after falling in his kitchen when his leg gave out. (Tr. 146.) Plaintiff admitted to drinking at least a six pack of beer per night, including the night of his fall. (Id.) An MRI was taken of his spine which showed "minimal spondylotic changes without fracture or malalignment." (Tr. 151.) Plaintiff was kept in the emergency room until he sobered up in order to reduce the risk of another fall. (Tr. 147.)
In November of 2003, plaintiff was examined by Dr. Greenberg, a board certified orthopedic surgeon who examined plaintiff four times beginning in November 2001. This was an independent medical examination for the insurer. Dr. Greenberg reported on plaintiff's current activities: plaintiff was working in a supervisory capacity at work and avoiding any stressful activity to his back; he was driving when necessary, but his sister did his food shopping; and he was doing housework including vacuuming and dishes. (Tr. 255.) Dr. Greenberg noted that plaintiff continued to take only over-the-counter medications such as Motrin and Tylenol. (Tr. 256.) Dr. Greenberg concluded that the May 30, 2001 accident caused a contusion, lumbar strain, and bursitis of the left hip. (Tr. 256.) He also noted that plaintiff had "mechanical back pain from his pre-existing degenerative disc disease" that was unrelated to the 2001 accident. (Id.) According to Dr. Greenberg's report, plaintiff "walks with the support of a cane on the right but can walk quite well without it." (Id.) Dr. Greenberg stated the opinion that Shallies remained "permanently partially disabled as a result of his original injury of May 30, 2001, primarily because of his hip problems." (Tr. 256). He believed that plaintiff was capable of continuing to work at his present job as a supervisor. Dr. Greenberg had concluded on April 22, 2003 that Shallies would be capable of sedentary work. (Tr. 261).
In February and March of 2004, after the claim for disability benefits was filed, two Physical Residual Functional Capacity ("RFC") Assessments were performed. (Tr. 18.) The first doctor stated that plaintiff had a RFC and capability to perform a range of light work with limitations upon standing at least two hours and sitting about six hours in an eight hour day. (Tr. 213.) The doctor also noted that plaintiff's work should involve limited climbing, balancing, stooping, kneeling, crouching, and crawling. (Tr. 214.) The second evaluation agreed with those conclusions, determining that Shallies had the RFC to perform light work with limitations upon standing and sitting for extended periods. (Tr. 219-26.)
On May 10, 2004, Dr. Iacono told plaintiff he could no longer do kitchen work, even for only four hours per day. (Tr. 17.) An MRI taken on May 16, 2004 "showed the left lateral disc protrusion pinching on the left L4 root foramen" and a June 2004 EMG revealed L4 and L5 radiculopathy. (Tr. 278.) In October of 2004, plaintiff had a slight limp and some minimal muscle tenderness, yet had minimal pain with straight leg raising and a full range of motion in the hips. (Tr. 277.) Dr. Iacono recommended retraining for "endeavors that avoid repetitive lifting, bending, and twisting." (Id.) Again, on December 29, 2004, plaintiff's doctor recommended retraining. (Tr. 302.)
D. The ALJ's Hearing and Findings
The plaintiff, represented by counsel, testified at the May 20, 2005 hearing that he uses a cane due to the weakness in his leg, that he cannot stand for four hours a day, and that he experiences sharp pains in his lower back, numbness in his left leg when he sits too long, and poor circulation in his left foot. (Tr. 51-52.) Plaintiff can stand in place for fifteen to twenty minutes, sit in place for thirty to forty-five minutes, and walk for half a mile. (Id.) Plaintiff has to lie down during the day when the pain becomes unbearable. (Tr. 52.) Plaintiff stated that he had never tried or considered sedentary-type work. (Tr. 55.)
In his November 29, 2005 decision, the ALJ found that plaintiff is not disabled within the meaning of the Social Security Act and denied his claims for benefits. (Tr. 16-21.) The ALJ made the requisite findings under the five-step evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found that plaintiff had engaged in substantial gainful activity since his alleged onset of disability, but noted that there were some months during which his earnings were insufficient to be deemed gainful. (Tr. 20, Finding 2.) The plaintiff testified that he had not worked since May of 2004. (Id.) Continuing to step two, the ALJ found that plaintiff's left hip strain and back pain syndrome were severe impairments. (Tr. 20, Finding 3.) At step three, the ALJ determined that none of plaintiff's impairments reached the level of any of the statute's listed impairments. (Tr. 20, Finding 4.) The ALJ found that plaintiff possessed the RFC to do at least sedentary exertional level work with some flexibility. (Tr. 20, Finding 6.) At step four, the ALJ determined that plaintiff was unable to perform any of his past relevant work. (Tr. 20, Finding 7.) Finally, at step five, the ALJ, with the assistance of a vocational expert, found that plaintiff was still able to perform a significant number of jobs in the national economy. (Tr. 20, Finding 10.) The ALJ concluded that plaintiff was not disabled, as defined by the Social Security Act, at any time through the date of his decision. (Tr. 21, Finding 11.)
III. DISCUSSION
A. Standard of Review
Judicial review of SSDI determinations is governed by 42 U.S.C. § 405(g), which provides that the Court "shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing."
In reviewing such decisions, the Court does not make de novo determinations. Lizotte v. Sec'y of Health Human Servs., 654 F.2d 127, 128 (1st Cir. 1981). Rather, this Court "must affirm the [Commissioner's] findings if they are supported by substantial evidence." Cashman v. Shalala, 817 F. Supp. 217, 220 (D. Mass. 1993); see also Rodriguez Pagan v. Sec'y of Health Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (stating that the Commissioner's determination must be affirmed, "even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence").
Substantial evidence is "more than a mere scintilla."Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229 (1938)). Substantial evidence means such relevant evidence as a "reasonable mind, reviewing the evidence in the record as a whole, [would] accept . . . as adequate to support [a] conclusion." Ortiz v. Sec'y of Health Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (citing Rodriguez v. Sec'y of Health Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). In reviewing the record for substantial evidence, "issues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the [Commissioner]." Rodriguez, 647 F.2d at 222 (quoting Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965)). When a conflict exists in the record, the Commissioner bears the duty to weigh the evidence and resolve material conflicts in testimony. See Richardson, 402 U.S. at 399;Ortiz, 955 F.2d at 769.
In addition to considering whether the ALJ's decision was supported by substantial evidence, the Court must consider whether the proper legal standard was applied. "Failure of the [Commissioner] to apply the correct legal standards as promulgated by the regulations or failure to provide the reviewing court with the sufficient basis to determine that the [Commissioner] applied the correct legal standards are grounds for reversal." Weiler v. Shalala, 922 F. Supp. 689, 694 (D. Mass. 1996) (citing Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982)).
B. Disability Determination Process
An individual may be entitled to Social Security disability benefits by demonstrating that 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 can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An impairment is disabling if it "results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner has developed a five-step sequential evaluation process to determine whether a person is disabled. See 20 C.F.R. § 404.1520; Goodermote v. Sec'y of Health Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). "Step one determines whether the claimant is engaged in substantial gainful activity. If he is, disability benefits are denied. If he is not, the decisionmaker proceeds to step two, which determines whether the claimant has a medically severe impairment or combination of impairments." Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987) (internal citations and quotations omitted). The governing severity regulation states:
If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.20 C.F.R. §§ 404.1520(c), 416.920(c). "Basic work activities" are defined as "the abilities and aptitudes necessary to do most jobs." Bowen, 482 U.S. at 140-41 (citing 20 C.F.R. §§ 404.1521(b), 416.921(b)). Thus, "[t]he severity regulation requires the claimant to show that he has an `impairment or combination of impairments which significantly limits . . . the abilities and aptitudes necessary to do most jobs.'" Bowen, 482 U.S. at 146 (quoting 20 C.F.R. §§ 404.1520(c), 404.1521(b)).
If the claimant has a severe impairment, the third step requires a determination of "whether the impairment is equivalent to one of [the] listed impairments that . . . are so severe as to preclude substantial gainful activity." Bowen, 482 U.S. at 141 (citing 20 C.F.R. §§ 404.1520(d), 416.920(d)). If the impairment is not "conclusively presumed to be disabling," the fourth step evaluates whether the impairment prevents the claimant from performing his past work. Bowen, 482 U.S. at 141. "If the claimant is able to perform his previous work, he is not disabled." Id. However, if he cannot perform his past work, the burden shifts to the Commissioner in the fifth step to prove that the claimant "is able to perform other work in the national economy in view of his age, education, and work experience." Id. at 142, 146 n. 5. The claimant bears the burden of production and proof for the first four steps of the sequential evaluation process, while the Commissioner bears the burden on the fifth step. Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).
C. Plaintiff's Challenges
Plaintiff raises three main challenges to the ALJ's decision. First, while not challenging the ALJ's conclusion that plaintiff had the capacity to perform sedentary work, he does argue that the ALJ failed to inquire sufficiently as to plaintiff's degree of pain in determining plaintiff's residual functional capacity. The First Circuit has set forth the factors that an ALJ should consider when assessing limitations as a result of pain: (1) the nature, location, onset, duration, frequency, radiation, and intensity of pain; (2) any precipitating or aggravating factors; (3) the type, dosage, effectiveness, and adverse side effects of any pain medication; (4) any treatment, other than medication, for relief of pain; (5) any functional restrictions; and (6) the claimant's daily activities. Avery v. Secretary of Health Human Servs., 797 F.2d 19, 20-21 (1st Cir. 1986). "Under Avery, if there are subjective symptoms of pain not supported by objective medical evidence, the ALJ must compare these complaints with the physician's reports, look into plaintiff's daily activities, and weigh his functional abilities as demonstrated on testing and evaluation." Charbonneau v. Apfel, 76 F. Supp. 2d 98, 102 (D. Mass. 1999). Furthermore, "[i]t is the responsibility of the [Commissioner] to determine issues of credibility and to draw inferences from the record evidence." Ortiz v. Sec'y of Health Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). Accordingly, this court must defer to the credibility determinations made by the ALJ. See Frustaglia v. Sec'y of Health Human Servs., 829 F.2d 192, 195 (1st Cir. 1987).
Plaintiff alleged that the pain limited his ability to perform sedentary work activity. The ALJ discredited this allegation based on the evidence that plaintiff lived alone, cared for himself, and was able to work four hours a day as a cook supervisor for almost two years after the alleged onset of his disability. (Tr. 18.) He said:
While the [Plaintiff] would have us believe his impairments significantly limit his ability to perform even the slightest basic work activity, [Plaintiff] has admitted that he lives alone and is able to care for himself. The medical record clearly reveals he was working 4 hour [sic] a day as a working cook supervisor from a month after his first accident occurred on May 30, 2001 until he slipped and fell again in August 2003 and possibly later in May 2004. Having the capability to perform these supervisory cook activities would indicate that the [Plaintiff] is far from disabled. He has not endeavored to find sedentary type of work full time. It is unlikely he would slip and fall on grease while doing sedentary work.
(Tr. 18-19 (emphasis added).)
It is true that the record contains objective signs that the plaintiff was suffering from pain. For example, plaintiff walked with a cane, from time to time received epidural injections, had years of physical therapy, which was largely unsuccessful, and told his doctors persistently about his feelings of pain. However, both doctors who performed RFC evaluations agreed that plaintiff was capable of light, sedentary work. (Tr. 212-27.) Significantly, no treating physician testified that plaintiff was unable to perform sedentary work, and indeed the treating physician recommended that he be retrained to perform such work. Most instructive was Dr. Greenberg's report in November 2003. Greenberg, who worked as an independent consultant to the insurer, and had been following plaintiff for two years, concluded that plaintiff could continue in his work in a supervisory capacity in a kitchen where he avoided any bending, lifting, or stressful activity to his back, as well as any prolonged sitting. Further, Greenberg pointed out in his report that Shallies drives, engaged in sedentary activity at home, and did housework such as vacuuming and dishes. Dr. Greenberg had earlier opined Shallies could perform sedentary work. The ALJ credited the plaintiff's allegations of pain, but properly relied on the medical evidence as well as plaintiff's daily and work activities to conclude that the pain was not so severe that it precluded sedentary work.
Next, plaintiff claims error because the ALJ did not properly ask a hypothetical to the vocational expert. If a plaintiff is not able to do any of his prior work, the ALJ has "the burden of coming forward with evidence of specific jobs in the national economy that [plaintiff] can perform . . . [and the ALJ can meet this burden] by relying on the testimony of a vocational expert."Arocho v. Sec'y of Health Human Serv., 670 F.2d 374, 375 (1st Cir. 1982). The Commissioner employs the services of a vocational expert at his or her own discretion. 20 C.F.R. § 404.1566(e). While the Social Security regulations do not require an ALJ to ask hypothetical questions, any hypotheticals presented to a vocational expert must "correspond to conclusions that are supported by the outputs from the medical authorities." Arocho, 670 F.2d at 375. The ALJ "must both clarify the outputs (deciding what testimony will be credited and resolving ambiguities), and accurately transmit the clarified output to the expert in the form of assumptions." Id. The hypothetical must include all significant functional limitations found in the medical evidence. Rose v. Shalala, 34 F.3d 13, 14 (1st Cir. 1994).
Initially, the ALJ only inquired about sedentary-type jobs suitable for a person who was 45 years old with a high school education. (Tr. 60.) The vocational expert named several sedentary, unskilled jobs: financial cashier, order checker, small product assembler, and small product packer. (Id.) The ALJ then qualified his question by reiterating to the vocational expert that the plaintiff required jobs that allowed "some flexibility" and would not require plaintiff to remain in a "rigid sitting position." (Tr. 61.) This was consistent with the findings of several doctors that plaintiff could do light work, but was limited to standing two hours in an eight hour day and sitting six hours. (Tr. 18.) This second alternative took into account plaintiff's complaints of pain. The vocational expert responded that the named jobs would allow a worker to "sit or stand at the site as needed." (Tr. 61.) As such, the questions the ALJ asked of the vocational expert sufficiently considered plaintiff's limitations.
Finally, plaintiff claims that the ALJ erred in finding that plaintiff engaged in substantial gainful activity during the disability period. Plaintiff greatly overstates the ALJ's findings. Under step one of the disability evaluation process, the ALJ found that plaintiff engaged in some substantial gainful activity because he met the required wage thresholds, but acknowledged that the analysis was complicated because plaintiff's work was at times substantial — and at times not. Consequently, the ALJ continued the disability inquiry to steps two through five, in effect assuming that the plaintiff was not engaged in substantial gainful activity. At step five, the ALJ determined that there are jobs available that plaintiff could perform and he denied benefits. Therefore, the ALJ's finding that plaintiff engaged in substantial gainful activity was immaterial to his overall disability determination.