Divirgilio v. Apfel, Civil Action No. 97-30137-MAP.
| Decision Date | 24 September 1998 |
| Docket Number | Civil Action No. 97-30137-MAP. |
| Citation | 21 F.Supp.2d 76 |
| Parties | Linda DIVIRGILIO, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Cynthia A. Spinola, Kenneth P. Ferris, Hashim & Spinola, Pittsfield, MA, for Plaintiff.
Karen L. Goodwin, United States Attorney's Office, Springfield, MA, for Defendant.
Upon de novo review, and in view of the absence of any objection, this Report and Recommendation is hereby adopted. The motion to reverse (Dkt. No. 5) is DENIED, and the Motion to Affirm is ALLOWED (Dkt. No. 7). So ordered.
REPORT AND RECOMMENDATION WITH REGARD TO PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER (Docket No. 05) and DEFENDANT'S MOTION TO AFFIRM (Docket No. 07)
Upon de novo review, and in view of the absence of any objection, this Report and Recommendation is hereby adopted. The motion to reverse (Dkt. No. 5) is DENIED, and motion to Affirm is ALLOWED (Dkt. No. 7). So ordered.
This matter is before the court pursuant to 42 U.S.C. §§ 405 and 1383(c)(3) of the Social Security Act which provide for judicial review of a final decision by the Commissioner of Social Security ("Commissioner") regarding an individual's entitlement to Social Security disability benefits ("SSDI"). Linda DiVirgilio ("Plaintiff") contends that the Commissioner's decision was not supported by substantial evidence and must be reversed. She argues that, in determining her residual functional capacity, the Administrative Law Judge ("ALJ") gave greater weight to the advisory opinion of a non-examining doctor in concluding that Plaintiff had the capacity for "light work," rather than the treating physician's conclusion that Plaintiff could do only "sedentary work." In response, the Commissioner argues that the ALJ's decision was supported by substantial evidence. The Commissioner claims that the ALJ considered the treating physician's opinions but properly determined that they were not supported by objective medical evidence.
The parties' motions were referred to the court for a report and recommendation pursuant to Rule 3 of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts. See 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the court recommends that the Commissioner's motion be allowed and that Plaintiff's motion be denied.
A court may not disturb the Commissioner's decision if it is grounded in substantial evidence. See 42 U.S.C. §§ 405(g) and 1383(c)(3). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir.1981). 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. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Thus, even if the record could support multiple conclusions, a court must uphold the Commissioner "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 & Human Servs., 955 F.2d 765, 769 (1st Cir.1991) (quoting Rodriguez, 647 F.2d at 222). Accordingly, a court must affirm the Commissioner's decision so long as it is supported by substantial evidence, even if the record could arguably justify a different result. See Rodriguez Pagan v. Secretary of Health & Human Servs., 819 F.2d 1, 3 (1st Cir.1987). The resolution of conflicts in evidence of disability are for the Commissioner, not for the doctors. See Rodriguez, 647 F.2d at 222; Evangelista v. Secretary of Health & Human Servs., 826 F.2d 136, 141 (1st Cir.1987). Similarly, questions of witness credibility and demeanor are resolved by the Commissioner, not the court upon its review. See Crespo v. Secretary of Health & Human Servs., 831 F.2d 1, 7 (1st Cir.1987); Lizotte v. Secretary of Health & Human Servs., 654 F.2d 127, 130 (1st Cir.1981).
An individual will qualify for SSDI benefits if she can demonstrate that her disability existed prior to the expiration of her insured status. See 42 U.S.C. § 423(a)(1)(A) and (d). See also 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, in applicable part, as the "inability to engage in any substantial gainful activity by reason of any determinable physical ... impairment which ... 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) and 423(d)(1)(A). In addition, an individual is considered disabled only if she has "a physical ... impairment [that is] of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 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).
Guided by the regulations for determining whether a claimant is disabled, the Commissioner uses a sequential five-step analysis which considers:
First, is the claimant currently employed? If [s]he is, the claimant is not disabled.
Second, does the claimant have a severe impairment? A "severe impairment" means an impairment "which significantly limits [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, [s]he is automatically considered not disabled.
Third, does the claimant have an impairment equivalent to a specific list of impairments contained in the 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 [her] from performing work of the sort [s]he has done in the past? If not, [s]he is not disabled. If so, the agency asks the fifth question.
Fifth, does the claimant's impairment prevent [her] from performing other work of the sort found in the economy? If so, [s]he is disabled; if not, [s]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).
Plaintiff was born on February 16, 1944, and was fifty-two years of age at the time the ALJ issued her decision. Plaintiff has a high school education, (A.R.34), is married and has two adult children. (A.R.33.) She was employed by General Electric ("GE") from March 17, 1980, until August 11, 1993. (A.R.34-35.) Her various positions included keypunch operator, clerk/typist and production control clerk. (Id.) The production control clerk position involved frequent lifting of up to fifty pounds, overhead reaching, repetitive use of her hands to unwrap and move modules, and standing and sitting in various positions. (A.R.35-39.)
On March 5, 1992, Dr. Paul M. Haidak diagnosed Plaintiff as having a ganglion cyst, which was subsequently removed on March 19, 1992. (A.R.249-50.) After a four-week leave, she returned to GE as a production control clerk in April, 1992. (A.R.41.) Upon her return, Dr. Anne E. Frodey, a doctor for GE, placed a twenty pound restriction on Plaintiff's activities, although she continued to lift boxes that weighed more than her restriction. (A.R.41.) Thereafter, more physical problems became manifest. Starting in April, 1992, Plaintiff experienced plain and numbness in her hand, elbow and shoulder. (A.R.42.) In July, she was diagnosed with carpal tunnel syndrome and tendinitis. (A.R.42-43.)
Plaintiff was laid off pursuant to a corporate downsizing at GE, but returned to work in November 1992. Her new position involved typing and computer inputting and lasted for two months. (A.R.44.) Plaintiff reported an increase in pain. (Id.)
Plaintiff was then placed in the printing and binding department, but was not physically able to manage the position. (Id.) Dr. Frodey told Plaintiff "there was nothing [that she] could do there [at GE]." (A.R.45, 56.) In particular, the climate controlled environment caused pain in her shoulder, arm and hand, and created difficulty in both sitting and standing positions. (A.R.45-46.) The shoulder pain began to radiate into the middle of Plaintiff's back in August of 1993. (A.R.46.)
As early as August 3, 1992, orthopedic surgeon Dr. John C. Bouillon examined Plaintiff. Over the course of treatment, Plaintiff was diagnosed with mild carpal tunnel syndrome, was prescribed medications, therapies and braces, and advised to do light work with limitations. (A.R.136.) In his notes of September 1, 1992, Dr. Bouillon indicated that Plaintiff should only perform light duty activities with particular limitations on repetitive work and lifting, pushing and pulling objects. (A.R.135, 137-39.) On April 29, 1993, Dr. Bouillon reported some improvement in Plaintiff's physical condition. (A.R.139.)
Plaintiff testified that Dr. Bouillion recommended (A.R.46.) Plaintiff represents that she accepted this recommendation and stopped working in August of 1993.(Id.) On August 30, 1993, Dr. Bouillon noted that Plaintiff's condition had worsened and that she had left her employment as of August 11, 1993. It is not clear from Dr. Bouillon's notes that it was he who recommended in advance that she stop working. His notes only indicate that her work environment had a negative impact on her...
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