COLLINGS, United States Magistrate Judge.
On September 5, 2013, plaintiff Linda Roeschlaub ("Roeschlaub") filed a complaint (# 1) pursuant to 42 U.S.C. § 405(g) against the Commissioner of Social Security ("the Commissioner"), appealing the denial of her claim for Social Security Disability Income ("SSDI") and Supplemental Security Income ("SSI") benefits. On December 13, 2013, the Commissioner filed an answer to the complaint (# 14); the administrative record was submitted on or about December 17, 2013.
On January 22, 2014, the plaintiff filed a motion to reverse (# 17) which incorporated a memorandum of law and two exhibits. Thereafter on March 4, 2014, the defendant submitted a motion to affirm the Commissioner's decision (# 19) together with a memorandum of law (# 20) and two exhibits. Roeschlaub filed a response (# 21) on March 18, 2014 and, with leave having been granted, the defendant filed a sur-reply (# 24) on March 20, 2014. With the record complete, the cross-motions stand ready for decision.
Roeschlaub originally filed for Social Security disability insurance benefits on January 21, 2009, alleging a disability onset date of December 31, 2005. (TR
On November 16, 2010, the ALJ issued a decision wherein she found that Roeschlaub had not been under a disability from December 31, 2005. (TR at 4-14) With the Disability Review Board having failed to complete its review within ninety days of the ALJ's decision, that decision became to final decision of the Commissioner. (TR at 1-3) Roeschlaub appealed the denial of her SSDI and SSI benefits claims to the United States District Court for the District of Massachusetts pursuant to 42 U.S.C. § 405(g).
On December 5, 2011, the undersigned issued a Report and Recommendation, subsequently adopted by the District Judge to whom the case was then assigned, recommending that the case be remanded to the Commissioner because the ALJ had erred in her handling of the treating physician's opinion evidence. Roeschlaub v. Astrue, 2011 WL 7477033 (D.Mass., Dec. 5, 2011), adopted by 2012 WL 787388 (D.Mass., Mar. 8, 2012). Specifically, I wrote:
Roeschlaub, 2011 WL 7477033, at *5 (footnote omitted)
The matter was remanded to the Commissioner. (TR at 771) On July 20, 2011, Roeschlaub "filed a new subsequent claim for a period of disability and disability insurance benefits." (TR at 775) Thereafter on April 18, 2012, Appeals Council consolidated the remanded claim and the new claim, and then remanded the case back to the ALJ "for further proceedings consistent with the order of the court" and to issue a new opinion on the consolidated claims. (TR at 775).
A supplemental hearing attended by the plaintiff, her attorney and an impartial vocational expert was held before the ALJ on April 16, 2013. (TR at 998-1025) Within a month, on May 10, 2013, the ALJ issued her decision denying Roeschlaub's claims. In her decision, the ALJ made the following
On July 10, 2013, Roeschlaub requested that the Appeals Council review the unfavorable decision. (TR at 728-31) The appeal was untimely (TR at 724-25), and, although Roeschlaub initially requested an extension of time to file the appeal with the Appeals Council (TR at 724), she thereafter decided to appeal directly to the federal district court (TR at 723).
A portion of the facts are repeated, verbatim, from the December 5, 2011 decision. (TR at 753-72) Additional facts, including those developed after the remand, shall be duly noted, although, as plaintiff's attorney indicated at the hearing before the ALJ on April 16, 2013, there are no subsequent medical records "showing dramatic changes," only "a record indicating that this is ongoing difficulty and continuing difficulty with function." (TR at 1003).
Roeschlaub, age thirty-nine at the time of the ALJ's initial decision, completed the twelfth grade. (TR at 25) She has past work experience as a home health aide. (TR at 39) Roeschlaub alleges that she has been disabled since December 31, 2005, due to herniated discs, deteriorating discs,
Roeschlaub was examined by Lawrence Johnson, M.D., an orthopedic surgeon, in January 2006 for her complaints of back and right leg pain. (TR at 536) Dr. Johnson remarked that Roeschlaub ambulated with a mild limp, and she had moderately reduced back range of motion. Dr. Johnson diagnosed probable mild right sciatica. A magnetic resonance imaging ("MRI") scan of the lumbosacral spine on February 17, 2006, showed disc degeneration at L3-L4, L4-L5, and L5-S1, as well as a large disc herniation at L4-L5 eccentric toward the left side. (TR at 538, 591) In 2006, Roeschlaub received multiple epidural steroid injections, as well as a lumbar facet injection.
On September 23, 2007, Roeschlaub was admitted to Saints Medical Center and assessed as having suffered an "acute left hemispheric stroke with an NIH Scale around 15." (TR at 546-47) On December 28, 2009, treating physician Arya Farahmand, M.D., stated that Roeschlaub had "excellent recovery" from her stroke. (TR at 553) When the plaintiff complained of a memory problem in May 2009, Dr. Farahmand noted that "there has been a decline in her sleep and she only sleeps for three hours for no good reason" and that her memory problems were "due to very poor sleep quality." (TR at 899-900).
Roeschlaub reported right shoulder pain and difficulty raising her arm at a February 19, 2009 examination by Dr. Johnson. (TR at 541) Dr. Johnson diagnosed right shoulder pain associated with subacromal bursitis. (TR at 541) During an April 2009 office visit, the plaintiff reported a sore back with some numbness in her left leg. (TR at 545) Roeschlaub was reported to be "walking a bit stiffly," had "mildly reduced back ROM," turned easily on the examining table, and had "minimal tenderness to palpation of the lumbar spine." (TR at 545) Dr. Johnson's impression was "[p]ersistent left sciatic symptoms associated with previously documented L4-5 disk herniation." (TR at 545) The plaintiff was referred for epidural steroid injections and advised to return "if her symptoms intensify." (TR at 545) She again received lumbar epidural injections in 2009 and 2010. (TR at 467, 585, 587).
In August 2009, Roeschlaub complained to Family Nurse Practitioner Kathleen Saucedo ("Saucedo") of low back pain during a physical examination. (TR at 696-97) The plaintiff was advised to follow-up with the pain clinic for her low back pain, ice for ten to fifteen minutes every hour and pace her activities. (TR at 697).
In November of 2009, medical consultant Barbara Trackman, M.D. completed a physical residual functional capacity assessment of the plaintiff wherein Dr. Trackman concluded that Roeschlaub could occasionally lift and/or carry twenty pounds; frequently lift and/or carry ten pounds; stand and/or walk about six hours in an 8-hour day; had an unlimited ability to push and/or pull; could frequently balance, kneel and crawl; could occasionally climb, stoop and crouch; and should avoid concentrated exposure to hazards such as machinery and heights. (TR 527-34).
When the plaintiff was seen by Saucedo with complaints of chronic low back pain in May of 2010, it was noted that:
TR at 692.
Saucedo referred Roeschlaub to Dr. Bhat for back care and consultation. (TR at 693).
Physiatrist Atual Bhat, M.D., examined Roeschlaub in July 2010, administered steroid injections at the right L4-L5 and L5-S1 joints, and prescribed physical therapy which yielded some improvements in the symptoms. (TR 558-60, 562-63) At a follow-up examination in October 2010, Dr. Bhat stated that while the injections did not significantly change Roeschlaub's pain, surgery was not warranted. (TR at 557).
At a September 28, 2010 appointment with Saucedo, the plaintiff complained of acute back pain, having awoken the previous day "with severe back pain to her right lower back." (TR at 688) While her spine was palpated Roeschlaub appeared comfortable, "[t]here was no grimacing or guarding." (TR at 688) She was advised to ice frequently and follow up with Dr. Bhat. (TR at 689) After an October 4, 2010 visit with Dr. Bhat, the doctor's impression was:
TR at 557.
The treatment plan was for the plaintiff to forego further injections due to her lack of response to that treatment and to be referred to the Boston Pain Care Center for "a multi-disciplinary approach to her chronic pain." (TR at 557).
On October 18, 2010, Dr. Johnson stated that his impression of Roeschlaub's back pain was that she had "chronic back pain," and his suggested plan included "weight loss, [a] walking program, back exercises and use of anti-inflammatory medication." (TR at 678) Dr. Johnson specifically stated: "She is not a surgical candidate." (TR at 678) Various x-rays of the plaintiff's cervical spine on October 18, 2010 revealed "[l]ower cervical degenerative changes with foraminal compromise and some intrusion on the central canal." (TR at 679).
On October 28, 2010, Dr. Johnson completed a medical source statement regarding Roeschlaub's ability to engage in physical, work-related activities. (TR at 674-677) Dr. Johnson opined that Roeschlaub could occasionally lift and carry ten pounds and could frequently lift and carry less than ten pounds. (TR at 674) He further opined that Roeschlaub could stand and/or walk less than two hours in an eight-hour workday, and she would need to alternate between sitting and standing.
Roeschlaub followed up with Dr. Farahmand on December 9, 2010. (TR at 908-09) The doctor reported that her prior stroke was stable but that an MRI of the cervical spine showed multilevel disc degenerative disease. (TR at 908-09) The plaintiff was going for a repeat MRI to compare with her initial MRI. (TR at 909) At an appointment on February 3, 2011, Dr. Farahmand reported that the repeat MRI indicated no changes and that there was "still evidence of demyelinating disease on the cervical spine but no enhancement." (TR at 921).
At an appointment for a routine physical examination with Saucedo in November 2011, Roeschlaub indicated that she felt "alright" that day. (TR at 834) She denied any pain or other concerns. (TR at 834) It was noted that the plaintiff had chronic back pain, had been seen by Drs. Bhat and Johnson as well as the pain clinic, had done physical therapy for months and that her pain varied from 4-9/10. (TR at 834) Notes from Dr. Farahmand dated January 10, 2012 reflect that Roeschlaub's recent MRI of her brain and cervical spine revealed no changes and "the C3 lesion on her cord [was] less in intensity." (TR at 931).
In March 2012 the plaintiff was an unrestrained driver in a motor vehicle accident. (TR at 944) She presented at the emergency room of Saints Medical Center the following day with complaints of headache, lower and upper back pain. (TR at 944) Roeschlaub arrived "ambulatory with steady gait," she was "cooperative, alert and oriented x3", and she appeared "in no acute distress." (TR at 944) The plaintiff appeared comfortable although she exhibited tenderness in the neck and lower back. (TR at 945-46) She was instructed to alternate ice and heat to sore areas, take Tylenol or Motrin as needed, no gym for two days and to follow up with her primary care physician if she did not feel better in a few days. (TR at 946).
Saucedo completed a mental medical source treatment statement with regard to the plaintiff in March 2012. (TR at 820-21) Saucedo found Roeschlaub to be markedly limited in eleven of the twenty listed work-related qualities. (TR at 820-21) As support for her assessment, Saucedo wrote:
TR at 821.
On the same day Saucedo also completed a physical medical source statement. (TR at 822-25) Therein Saucedo opined that the plaintiff could occasionally lift and/or carry less than ten pounds; could stand and/or walk for less than two hours in an 8-hour workday (noting that Roeschlaub "can stand for only 10-15 minutes and then needs to change position/rest due to low back pain"); can occasionally climb, balance, kneel, crouch and stoop, but never crawl; is limited to less that two and a half hours a day of reaching and handling; her concentration and ability to maintain focus is limited by pain; and she should not work with machinery or heights or fumes because her balance, judgment and focus are "off." (TR at 822-25).
On a typical day, Roeschlaub gets up around 6:30 AM, has coffee, wakes up her daughter and brings her to school, then goes home, lies down and watches television. (TR at 35) She tries to get up and do something like sweep, but it hurts too much. (TR at 35-6) During the day she will sit down, then get up, then sit down again, then lay down. (TR at 36) She prepares some of the meals with her daughter's help, but does not really do any household chores; her husband does the food shopping and her son does the laundry. (TR at 36) The plaintiff testified that she could walk for about five minutes, stand for around twenty minutes, and lift a gallon of milk. (TR at 38-9).
According to Roeschlaub, the steroid injections she had worked for only a short period, maybe a week, so she stopped having them done. (TR at 41-2) Physical therapy made the pain worse. (TR at 42) She estimated that she would miss three days out of the week because of pain if she tried to go back to work full time. (TR at 48) At the April 2013 administrative hearing, the plaintiff testified that she had not tried to work since the prior hearing. (TR at 1006).
Title 42 U.S.C. § 405(g) provides, in relevant part:
The Court's role in reviewing a decision of the Commissioner under this statute is circumscribed:
Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15, 16 (1 Cir., 1996); see also Reyes Robles v. Finch, 409 F.2d 84, 86 (1 Cir., 1969) ("And as to the scope of court review, `substantial evidence' is a stringent limitation.").
Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128 (1 Cir., 1981) (quoting Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1 Cir., 1981)); Geoffroy v. Secretary of Health and Human Services, 663 F.2d 315, 319 (1 Cir., 1981) ("In any event, whatever label the parties or the court ascribe to the procedure used to review the Secretary's decision, statute and long established case law make clear that the court's function is a narrow one limited to determining whether there is substantial evidence to support the Secretary's findings and whether the decision conformed to statutory requirements." (citations omitted)).
In other words, if supported by substantial evidence, the Commissioner's decision must be upheld even if the evidence could also arguably admit to a different interpretation and result. Ward v. Commissioner of Social Security, 211 F.3d 652, 655 (1 Cir., 2000); see also Nguyen v. Chater, 172 F.3d 31, 35 (1 Cir., 1999) (per curiam). Lastly,
Musto v. Halter, 135 F.Supp.2d 220, 225 (D.Mass., 2001).
The plaintiff challenges the Commissioner's decision on the grounds that the ALJ's RFC
First with respect to the RFC, Roeschlaub argues the ALJ did not adequately account for the plaintiff's memory loss with the limitation to simple 1-2 step tasks. In advancing this argument, the plaintiff relies on Saucedo's opinion to the effect that Roeschlaub was markedly limited 1) in her ability to remember locations and work-like procedures; 2) the ability to understand and remember very short and
Roeschlaub does not dispute the correctness of the ALJ's determination that Saucedo, as a nurse practitioner, is not an "acceptable medical source" within the meaning of the regulations, but rather is an "other source." (TR at 744
While the ALJ considered Saucedo's March 2012 opinion, that opinion was afforded "minimal probative weight" because it was "inconsistent with the record as a whole." (TR at 744) The ALJ noted that the plaintiff's claim of memory loss subsequent to her stroke was "not corroborated by any objective medical findings."
There is substantial evidence in the record to support the ALJ's rejection of Saucedo's opinion that Roeschlaub suffered marked limitations with respect to memory loss.
In the prior appeal, I found "that the ALJ erred in failing to give any indication or explanation as to why she did not credit this evidence from the treating physician." See Burnett v. Comm'r of Social Sec'y Admin'n, 220 F.3d 112, 121 (3 Cir., 2000) ("Although the ALJ may weigh the credibility of the evidence, he must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence. `In the absence of such an indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored.'" (internal citations omitted)). Roeschlaub, 2011 WL 7477033, at *5. On remand, the ALJ made the following determinations with respect to Dr. Johnson's medical opinion:
TR at 744.
Although the ALJ has now set forth her reasons for dismissing Dr. Johnson's stand/walk limitation, the explanation offered is insufficient.
Turning to the plaintiff's "conservative, irregular treatment history," the record is replete with consistent references to the plaintiff's chronic back pain. Over the years Roeschlaub has been prescribed various pain and anti-inflammatory medications, has undergone steroid injections for pain, has participated in physical therapy and ultimately was referred to a pain care center for "a multi-disciplinary approach to her chronic pain." (TR at 557) According to the plaintiff, the majority of these treatments were ineffective or yielded little relief. It is uncontroverted in the medical notes that Roeschlaub is not a surgical candidate.
There is nothing in the record to indicate that the plaintiff's course of treatment has somehow been inadequate or inappropriate. There is also no medical opinion in the record
Of course, where the medical evidence shows relatively little physical impairment, an ALJ permissibly can render a commonsense judgment about functional capacity even without a physician's assessment. But when, as now, a claimant has sufficiently put her functional inability to perform her prior work in issue, the ALJ must measure the claimant's capabilities, and to make that measurement, an expert's RFC evaluation is ordinarily essential unless the extent of functional loss, and its effect on job performance, would be apparent even to a lay person." (internal
Because Dr. Johnson provided no explanation for the stand/walk limitation (although such an explanation is requested on the form), this could well be a situation where it was incumbent upon the ALJ to investigate further. As noted in the December 2011 Report and Recommendation,
Roeschlaub, 2011 WL 7477033, at *5, n. 8.
If Dr. Johnson was uncooperative, a consultative examination could be ordered. 20 C.F.R. § 404.1512(e).
Secondly, based on the record, it cannot be said that Roeschlaub's daily activities as she described them were necessarily inconsistent with Dr. Johnson's stand/walk limitation. The ALJ wrote that "several tasks [reported by the plaintiff] ... require prolonged periods of standing, such as cooking, cleaning, shopping, and attending appointments."
To summarize, whether considered individually or in combination, Roeschlaub's
For all the reasons stated, it is ORDERED that the Motion to Reverse (# 17) be, and the same hereby is, ALLOWED to the extent that final judgment shall enter REMANDING this case to the Commissioner for further proceedings in accordance with this opinion. It is FURTHER ORDERED Defendant's Motion to Affirm the Commissioner's Decision (# 19) be, and the same hereby is, DENIED.
SSR 96-2p, 1996 WL 374188, at *4 (July 2, 1996).
