Barrett v. Apfel

• Decision Date: 23 February 1999
• Docket Number: No. Civ.A. 97-30287-KPN.,Civ.A. 97-30287-KPN.
• Citation: 40 F.Supp.2d 31
• Parties: Richard A. BARRETT, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security Administration, Defendant.
• Court: U.S. District Court — District of Massachusetts

Page 31

40 F.Supp.2d 31

Richard A. BARRETT, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security Administration, Defendant.

No. Civ.A. 97-30287-KPN.

United States District Court, D. Massachusetts.

February 23, 1999.

John R. Cowie, Jr., J. Norman O'Connor, Jr., Donovan & O'Connor, Adams, MA, for Richard A. Barrett, plaintiff.

Karen L. Goodwin, United States Attorney's Office, Springfield, MA, for Kenneth S. Apfel, Commissioner of Social Security Administration, defendant.

MEMORANDUM WITH REGARD TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Docket No. 8) and DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER (Docket No. 11)

NEIMAN, United States Magistrate Judge.

This matter is before the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act, which provides for judicial review of a final decision denying Social Security Disability ("SSDI") benefits. Richard A. Barrett ("Plaintiff") has filed a motion for summary judgment claiming that the decision of the Commissioner of the Social Security Administration ("Commissioner") denying him benefits is not based on substantial evidence. The court has treated Plaintiff's motion for summary judgment as a motion to reverse the Commissioner's decision. In turn, the Commissioner has moved to affirm.

With the parties' consent, this case has been assigned to the court pursuant to 28 U.S.C. § 636(c) for all purposes, including entry of judgment. For the reasons set forth below, the court will deny Plaintiff's motion and allow the Commissioner's motion.

I. DISABILITY STANDARD

An individual is entitled to SSDI benefits if he is under a disability prior to the expiration of his insured status. 42 U.S.C. §§ 423(a) and (d). See Torres v. Secretary of Health & Human Servs., 845 F.2d 1136, 1137-38 (1st Cir.1988); Cruz Rivera v. Secretary of Health & Human Servs., 818 F.2d 96, 97 (1st Cir.1986). The Social Security Act defines disability as the "inability 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 has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 416(i)(1)(A) and 423(d)(1)(A). An individual is considered disabled under the Act

only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, 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). See generally Bowen v. Yuckert, 482 U.S. 137, 146-48, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).

When implementing the above standards, the Commissioner must use a sequential five-step analysis to determine whether a claimant is disabled. The analysis proceeds on the basis of the following questions.

First, is the claimant currently employed? If he is, the claimant is automatically considered not disabled.

Second, does the claimant have a severe impairment? A "severe impairment" means an impairment "which significantly limits his or her physical or mental capacity to perform basic work-related functions." If the claimant does not have an impairment of at least this degree of severity, he is automatically considered not disabled.

Third, does the claimant have an impairment equivalent to a specific list of impairments contained in regulations' Appendix 1? If the claimant has an impairment of so serious a degree of severity, the claimant is automatically found disabled....

... Fourth, does the claimant's impairment prevent him from performing work of the sort he has done in the past? If not, he is not disabled. If so, the agency asks the fifth question.

Fifth, does the claimant's impairment prevent him from performing other work of the sort found in the economy: If so, he is disabled; if not, he is not disabled.

Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir.1982) (citing 20 C.F.R. § 404.1520). The first three questions are "threshold" tests. If the claimant is working (question one) or if he has the physical or mental capacity to perform basic work-related functions (question two), he is automatically considered not disabled. Conversely, if the claimant has an Appendix 1-type impairment (question three), he is automatically considered disabled. In either case, his claim is determined at the "threshold." Alternatively, if the claimant's ability to perform basic work-related functions is impaired significantly but he has no Appendix 1-type impairment, the Commissioner asks the fourth and, possibly, the fifth questions. Id.

II. PROCEDURAL HISTORY

Plaintiff, born February 2, 1942, has a high school education with past work experience as a machinist. (Administrative Record ("A.R") 124.) Plaintiff applied for SSDI on November 4, 1992, alleging an inability to work since June 2, 1992, as a result of a back injury. (A.R.116-19.) The Social Security Administration denied the application initially, (A.R.151-52), and again upon reconsideration. (A.R.168-69). After a hearing before an Administrative Law Judge ("ALJ") on September 23, 1994, the ALJ found that Plaintiff was not disabled. (A.R.255-73.)

The Appeals Council granted Plaintiff's request for review, and on May 26, 1995, remanded the case for further proceedings. (A.R.276-79.) The specifics of the remand order are described below. In essence, the Appeals Council required that the ALJ obtain additional medical evidence and give further consideration to Plaintiff's subjective complaints of pain. (A.R.276-79.) On April 22, 1996, after a second administrative hearing, the ALJ found that Plaintiff was not disabled. (A.R.12-18.) The Appeals Council denied Plaintiff's request for review on October 23, 1997, rendering the second hearing decision final and subject to judicial review. (A.R.2-3.) That decision is now before the court.

III. STANDARD OF REVIEW

A court may not disturb an administrative law judge's decision if it is grounded in substantial evidence. 42 U.S.C. § 405(g). The Supreme Court has defined substantial evidence as "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Even if the record could support multiple conclusions, a court must uphold the decision "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion." Irlanda Ortiz v. Secretary of Health and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir.1981)). See Richardson, 402 U.S. at 401, 91 S.Ct. 1420. Stated another way, a court must affirm the decision so long as it is supported by substantial evidence, even if the record could arguably justify a different result. Rodriguez Pagan v. Secretary of Health & Human Servs., 819 F.2d 1, 3 (1st Cir.1987). The resolution of conflicts in evidence and the determination of disability are for the administrative decision-maker, not the doctors or the courts. Rodriguez, 647 F.2d at 222; Evangelista v. Secretary of Health & Human Servs., 826 F.2d 136, 141 (1st Cir.1987).

IV. FACTUAL BACKGROUND

A. Medical Evidence Prior to First Administrative Hearing

Plaintiff first began having problems with his back in 1981 and underwent surgery. (A.R.193-94.) In June 1992, Plaintiff saw Dr. Kuhrt Wieneke and complained of renewed low back pain radiating to his right foot. (A.R.194-95.) Magnetic resonance imaging (MRI) conducted on June 30, 1992, showed an extruded disc fragment at L4-5 and a small disc herniation at L5-S1. (A.R.195.) After performing a disc excision in September, (A.R.178), Dr. Wieneke reported that Plantiff was "doing fairly well" with "some recurrent low back and buttock pain" and recommended a Nautilus exercise program three times per week. (A.R.194.)

After Plaintiff applied for SSDI benefits, Dr. Robert Miceli, at the request of the Social Security Administration, reviewed the medical evidence and evaluated Plaintiff's residual functional capacity. (A.R. 140-47.) Dr. Miceli found that, despite his impairments, Plaintiff was capable of light work. (A.R.141.) Soon thereafter, Dr. Oscar Cartaya, another agency physician, reviewed the medical records and affirmed Dr. Miceli's assessment. (A.R.147.)

Dr. Robert Van Uitert, a neurologist, evaluated Plaintiff on January 4, 1993. (A.R.218-19.) Plaintiff reported to Dr. Van Uitert that his back pain had increased after a period of post-surgical improvement. Plaintiff also reported numbness and paresthesia in both hands, as well as intermittent tinnitus, which Dr. Van Uitert attributed to carpal tunnel syndrome. A subsequent back examination revealed tenderness and spasms, and electromyographic and nerve conduction studies revealed some chronic degenerative changes in plaintiff's legs. Noting that the cause of Plaintiff's leg pain was not entirely clear, Dr. Van Uitert recommended a repeat MRI. (A.R.218-19.)

Plaintiff saw again Dr. Wieneke on January 21, 1993, at which time Plaintiff complained of left thigh pain and weakness in his left leg. (A.R.194.) Dr. Wieneke did not yet have the MRI results. Upon examination, Plaintiff walked briskly with no limp and straight leg raising was negative. Dr. Wieneke noted that Plaintiff had "recently applied for and [was] turned down by [the Social Security Administration]. I agree [Plaintiff] is not sufficiently disabled to qualify for disability." (A.R.194.)

Physical therapy notes from February 1993, indicate that Plaintiff was tolerating aerobic exercises three times each week with periods of...