Viveiros v. Astrue
| Decision Date | 23 February 2012 |
| Docket Number | CIVIL ACTION NO. 10-11405-JGD |
| Parties | ARMANDO VIVEIROS, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
ON CROSS-MOTIONS REGARDING DENIAL OF
SOCIAL SECURITY DISABILITY INSURANCE BENEFITS
Plaintiff Armando Viveiros ("Viveiros") has brought this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying his claim for Social Security Disability Insurance ("SSDI") benefits. The matter is presently before the court on the "Plaintiff's Motion for Order Reversing the Decision of the Commissioner" (Docket No. 15), by which the plaintiff is seeking a remand for the payment of benefits or, alternatively, for further administrative proceedings. It is also before the court on the defendant's "Motion to Affirm the Commissioner's Decision" (Docket No. 17), by which the Commissioner is seeking anorder affirming his decision to deny Viveiros' claim for benefits. At issue is whether the Administrative Law Judge ("ALJ"), in reaching his decision that Viveiros was not disabled, erred by failing to properly weigh the opinions of the plaintiff's treating physicians and by failing to properly evaluate the plaintiff's subjective complaints of pain and other symptoms in accordance with the requirements known as the "Avery factors." Also at issue is whether the ALJ committed reversible error by failing to include any references to Viveiros' moderate limitations in concentration, persistence or pace in the hypothetical questions that he posed to the vocational expert ("VE") during the hearing on the plaintiff's claim for benefits.
As described below, this court finds that while the plaintiff's other arguments are unpersuasive, the ALJ's failure to address the plaintiff's mental limitations in his hypothetical questions to the VE warrants a remand of this matter to the ALJ. Accordingly, and for all the reasons detailed herein, the Commissioner's motion to affirm is DENIED, and the plaintiff's motion to reverse is ALLOWED. The matter shall be remanded for further proceedings consistent with this Decision.
Viveiros was born on June 4, 1968, and has a high school education. (Tr. 38-39). During the time period from 1990 to December 2002, Viveiros held jobs as a delivery truck driver, a bus driver, a weaving machine operator, and a truck driver/laborer for theCity of Fall River. (Tr. 39-41, 130). However, on December 2, 2002, Viveiros fell on ice and injured his back. (Tr. 41, 275). He did not return to work, and has remained out of work since that time. (Tr. 41).
The record reveals that Viveiros has been diagnosed with cervical and lumbar strain, degenerative disc disease, and spondylolisthesis, and that he suffers from chronic pain and depression. (See, e.g., Tr. 269, 285, 383-85). He claims that he is disabled and unable to work due to severe and persistent pain in his back and legs, and due to the depression and anxiety that he has suffered as a result of his back injuries. (Tr. 129, 178).
Viveiros filed an application for SSDI benefits on March 18, 2008, claiming that he had been unable to work since December 2, 2002, the date of his back injury. (Tr. 100-06, 124). To qualify for SSDI benefits, an individual must become disabled during the period under which he is insured by the program. See 20 C.F.R. § 404.131. Because Viveiros was last insured on December 31, 2005, he had to establish that he was disabled during the time period between December 2, 2002 and December 31, 2005. (Dec. 2; Tr. 8).
The plaintiff's application was denied initially on May 21, 2008, and upon reconsideration on September 9, 2008. (Tr. 67-72). Subsequently, Viveiros requested a hearing before an ALJ. (Tr. 73). The request was granted and the hearing took place on December 3, 2009. (Tr. 26-62, 73-75). Viveiros, who was not represented by counsel,appeared and testified at the hearing. (Tr. 26-54). In addition, the ALJ elicited testimony from a VE, which testimony included responses to questions involving a hypothetical claimant. (Tr. 54-59). In questioning the VE, the ALJ was seeking to determine the extent to which the plaintiff's "limitations errode the unskilled sedentary occupational base." (Dec. 12; Tr. 18). Viveiros contends, however, that the hypothetical questions that were posed to the VE were insufficient because they did not include his moderate mental limitation in concentration, persistence or pace. As detailed below, this court agrees.
(Tr. 57). The ALJ then asked the VE to state whether those limitations would preclude the claimant from performing Viveiros' past work, and whether there were other jobs that a claimant with those limitations could perform. (Tr. 57). The VE testified that a claimant having those restrictions would be unable to perform the plaintiff's past work, but that there were jobs within the national and regional economy that the claimant could perform, including the jobs of surveillance system operator, table worker, and order clerk. (Tr. 57-58).
In the second hypothetical, the ALJ asked the VE to consider a claimant with the same limitations who also "required periods of recumbent rest outside their normal work break or lunch break[.]" (Tr. 59). When asked whether the additional limitation would preclude the jobs that the VE had described in response to the first hypothetical, the VE responded that it would preclude those jobs. (Tr. 59). No further hypothetical questions were posed to the VE at the hearing.
On January 26, 2010, the ALJ issued a decision denying the plaintiff's application for benefits. (Dec. 12; Tr. 18). The Decision Review Board selected Viveiros' claim for review, but because it did not complete its review within the required time period, the ALJ's decision became the final decision of the Commissioner for purposes review. (Tr. 1-3). Thus, the plaintiff has exhausted all of his administrative remedies, and the case is ripe for review by this court pursuant to 42 U.S.C. § 405(g).
As described above, in order to qualify for SSDI benefits, Viveiros had to establish that he was disabled prior to the expiration of his insured status on December 31, 2005. The ALJ concluded that from December 2, 2002 through the date when Viveiros was last insured, the plaintiff was not "under a disability within the meaning of the Social Security Act[,]" which defines "disability" as "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment or combination of impairments that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months." (Dec. 1-2;Tr. 7-8). See also 42 U.S.C. § 423(d)(1)(A). There is no dispute that the ALJ, in reaching his decision that Viveiros was not disabled, applied the five-step sequential evaluation required by 20 C.F.R. § 404.1520. The procedure resulted in the following analysis, which is detailed in the ALJ's "Findings of Fact and Conclusions of Law." (See Dec. 3-12; Tr. 9-18).
The first inquiry in the five-step process is whether the claimant is "engaged in substantial gainful work activity[.]" Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). If so, the claimant is automatically considered not disabled and the application for benefits is denied. See id. In the instant case, the ALJ determined that Viveiros did not engage in substantial work activity during the period from his alleged onset date of December 2, 2002 through his last insured date of December 31, 2005, so the ALJ proceeded to the next step in the analysis. .
The second inquiry is whether the claimant has a "severe impairment," meaning an "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]" 20 C.F.R. § 404.1520(c). If not, the claimant is considered not disabled and the application for benefits is denied. See Seavey, 276 F.3d at 5. Here, the ALJ concluded that Viveiros suffered from several severe impairments, including lumbosacral degenerative disc disease, a pain syndrome, and a depressive disorder. . Therefore, his analysis continued.
The third inquiry is whether the claimant has an impairment equivalent to a specific list of impairments contained in Appendix 1 of the Social Security regulations, inwhich case the claimant would automatically be found disabled. See Seavey, 276 F.3d at 5; 20 C.F.R. § 404.1520(d). At this step, the ALJ concluded that Viveiros' impairments, either alone or in combination, did not meet or medically equal any of the listed impairments. . While the plaintiff does not challenge this conclusion, as detailed below, the parties dispute the significance of the ALJ's finding at this stage that Viveiros had moderate limitations in an area of mental functioning.
To continue reading
Request your trial