STEARNS, District Judge.
Appellant Cesar Matos seeks review of the final decision of the Commissioner of
Matos applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on July 5, 2006. The application was denied by the SSA on September 9, 2006, and again after reconsideration on February 14, 2007. Matos requested a hearing before an ALJ on February 28, 2007. On January 23, 2008, ALJ Francis C. Newton, Jr., heard testimony from Matos with the aid of an interpreter. The ALJ issued his decision, unfavorable to Matos, on October 23, 2008.
The ALJ found that Matos suffered from severe impairments—a rotator cuff tear, diabetes mellitus, high blood pressure, and lipoma—but that Matos nonetheless retained the residual functional capacity (RFC) to perform a range of available light jobs. After the Decision Review Board denied Matos' request for review on February 25, 2010, the ALJ's decision became the final decision of the Commissioner.
Matos was born on March 13, 1960. On the alleged disability onset date—February 1, 2006—Matos was forty-five years old. Although he cannot speak English, Matos can read and write in Spanish and perform simple mathematics. From 1994 to 2006, Matos worked as an assembler, delivery driver, maintenance person, packer, helper in an auto repair shop, food market worker, and storage facility worker. He has not worked since.
On May 15, 2006, Matos presented to the emergency room at Boston Medical Center complaining of pain in his right arm and shoulder. Matos reported that the pain had begun approximately three months prior to his visit, while he was attempting to push a heavy object. He stated that the pain—presumably intermittent at its onset—had persisted for the previous three weeks. An examination of Matos' shoulder revealed some tenderness in the glenohumeral joint
A month later, Matos had his shoulder evaluated by Jeremiah Frank, M.D., who took a more detailed history of Matos' shoulder problems. Matos reported that his shoulder pain dated back to 1992, when
On October 20, 2006, Andrew Glantz, M.D., surgically removed the subcutaneous lipoma
In March of 2007, Matos returned to Dr. Glantz complaining of intermittent pain at the surgical site. On examination, Dr. Glantz observed that the wound was well-healed. In aspirating the incision, Dr. Glantz saw that there was no sign of fluids or infection. There was, however, a bulge at the operative site. Dr. Glantz detected a palpable muscle spasm, and told Matos to continue to take pain medication. Matos returned two months later for a follow-up appointment, complaining of recurrent swelling at the surgical site. The examining physician, Neeraj Rastogi, M.D., observed a 4x4 centimeter swollen area at the site, but noted that it was "probably secondary to [the] recurrent lipoma."
In November of 2007, Matos presented to Dr. Glantz with complaints of increases in the size of, and pain associated with, the lipoma. Dr. Glantz noted a palpable mass in Matos' left posterior back that was tender to palpation. Dr. Glantz attempted to aspirate the mass, but no fluid emerged. An ultrasound confirmed the presence of a lobular mass suggestive of lipoma. Dr. Glantz removed the recurrent lipoma from Matos' upper back on January 4, 2008. Ten days later, Matos' sutures were removed after the incision was observed to be healing well.
Twelve days later, on January 16, 2008, Matos presented to an orthopedic surgeon, Anthony Schepsis, M.D., complaining of back pain. Dr. Schepsis prescribed physical therapy and gave Matos a referral for a cortisone injection. Matos returned the
Despite complying this time with Dr. Schepsis' advice, Matos continued to feel pain in his right shoulder. An examination in September of 2008 showed that Matos had a full range of motion in his neck as well as his right shoulder. On forward flexion and abduction, however, Matos felt pain. Dr. Glantz prescribed medication and diagnosed Matos with right cervical radiculopathy
Approximately one month later, Matos was examined by Douglas Comeau, D.O., for pain in his neck and shoulder. Again, Matos demonstrated a full range of motion and strength in his right shoulder. However, Matos complained of pain on forward flexion and abduction. Matos' neck also exhibited a full range of motion and strength, with decreased trapezius muscle spasm.
On September 15, 2006, a Massachusetts Rehabilitation Commission (MRC) medical consultant, Beth Schaff, M.D., evaluated the medical record. She concluded that Matos retained the capacity to occasionally lift and carry twenty pounds, and frequently lift and carry ten pounds. She also noted that Matos could stand, walk, and sit for about six hours during an eight-hour workday. Dr. Schaff added that while Matos was limited to occasional overhead reaching, pushing, and/or pulling with his right arm, he could still (frequently) climb stairs, balance, stoop, kneel, crouch, and crawl, and (occasionally) climb ladders, ropes, and scaffolds. On February 12, 2007, Dr. Schaff's findings were endorsed by Richard Goulding, M.D., the chief medical consultant at MRC.
Approximately a year and a half later on March 31, 2008, Nurse Richard Russell evaluated Matos, and again at a follow-up visit on May 6, 2008. Nurse Russell completed
The ALJ made the following written findings of fact and conclusions of law:
The decision of the Commissioner is conclusive so long as it is supported by substantial evidence and so long as the Commissioner has applied the correct legal standard. See 42 U.S.C. § 405(g); Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir.1996). "Substantial evidence ... means evidence reasonably sufficient to support a conclusion. Sufficiency, of course, does not disappear merely by reason of contradictory evidence.... [The] question [is] not which side [the court] believe[s] is right, but whether [the Commissioner] had substantial evidentiary grounds for a reasonable decision...." Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1st Cir.1998). The Commissioner's findings "are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters
Disability determinations follow a "sequential step analysis" mandated by 20 C.F.R. § 404.1520. The analysis requires that the ALJ first determine whether or not a claimant was gainfully employed prior to the onset of the disabling condition. At the second step, the ALJ must determine whether a claimant suffers from a severe impairment limiting his ability to work. If the impairment is the same as, or equal in its effect to, an impairment (or combination of impairments) listed in Appendix 1 of the regulations, the claimant is presumptively deemed disabled. If the impairment is not covered by Appendix 1, the fourth step of the analysis requires that the claimant prove that his disability is sufficiently serious to preclude a return to his former occupation. If he meets that burden, the Commissioner at the fifth step is obligated to prove that there are other jobs in the national economy that the claimant is able to perform. Gonzalez Perez v. Sec'y of HEW, 572 F.2d 886, 888 (1st Cir.1978) ("[A] claimant must establish that he can no longer perform his prior vocation before the government is obligated to prove that alternative employment is available for a person in claimant's condition.").
The ALJ found at Step 1 and Step 2 that Matos had not been engaged in substantial gainful activity since February 1, 2006, and that he suffered four severe impairments: (1) status post rotator cuff tear; (2) diabetes mellitus; (3) high blood pressure; and (4) lipoma. Notably, depression was not listed. The ALJ determined at Step 3 that these impairments, although severe, nevertheless failed to rise to level of a listed impairment as defined in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. at 14. The ALJ then proceeded to Steps 4 and 5.
Steps 4 and 5 of the analysis necessarily require an assessment of a claimant's RFC. See 20 C.F.R. § 404.1545(a)(5). To evaluate the RFC, the ALJ must follow a two-step process to: (1) determine whether the claimant has an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the complained of pain or other symptoms; and (2) if such an impairment exists, to determine the extent to which it limits his ability to do basic work activities. This latter determination requires an evaluation of the intensity, persistence, and limiting effects of the claimant's pain or other symptoms. See id. § 404.1545(a)(2)(3).
At Step 4, the ALJ determined that the impairments suffered by Matos could reasonably explain his alleged pain and other symptoms, but that Matos' complaints about the intensity, persistence, and the limiting effects of these symptoms were not consistent with his RFC assessment— and to that extent, not credible. The ALJ then proceeded to Step 5: the determination of whether—in light of Matos' RFC, age, education, and work experience—he retains the capacity to perform appropriate and available work in the national economy. The ALJ determined that Matos could perform jobs involving unskilled, light work that were available despite his illiteracy in the English language.
On appeal, Matos maintains that the ALJ's opinion was not supported by substantial evidence in three particulars: (1) the ALJ "ignored [Matos'] diagnosis of depression" in determining whether his impairments were severe; (2) he failed to support his finding that Matos' subjective complaints were not credible with specific facts; and (3) he improperly relied on the Medical-Vocational Guidelines in finding that there are other jobs in the national economy that Matos could perform.
In his application for disability benefits, Matos claimed that he suffered from five impairments which precluded him from performing substantial gainful activity: (1) status post rotator cuff tear; (2) diabetes mellitus; (3) high blood pressure; (4) lipoma; and (5) depression. While the ALJ found the first four to be severe, he did not issue a specific finding as to Matos' claim of depression. Based on this omission—which the Commissioner does not contest—Matos argues that the ALJ completely "ignored [Matos'] diagnosis of depression... and the effects of [his] depression when contemplating his ability to work." Pl. Br. at 10.
The Commissioner, for his part, points to references in the ALJ's decision to Matos' mental health examination, mood, and affect, as well as Matos' testimony regarding his depression. These references, the Commissioner argues, indicate that "[Matos'] allegation of depression was considered by the ALJ and rejected as not severe." Def. Br. at 11 & n. 5 (emphasis added). The fundamental point is that there is no "diagnosis" of depression (as Matos claims) by a qualified examiner in the record. The only medical evidence of Matos' mental state is the psychiatric review checklist completed by Nurse Russell. While noting Matos' complaints, Nurse Russell concluded that his condition was not "severe." By Matos' own account, the alleged depression had endured less than six months; Matos presented no corroborating evidence suggesting that his mental condition was "expected to last for a continuous period of at least 12 months" so as to satisfy the durational requirement set out in 20 C.F.R. §§ 404.1509, 416.909. In sum, while the ALJ might have more definitively addressed the issue, he did not ignore it: he (1) recited Matos' testimony regarding his alleged depression; (2) noted his mood and affect, both of which were found to be "appropriate"; and (3) cited the findings of Matos' mental health examination, which were likewise "unremarkable."
Matos next contends that the ALJ erred when he dismissed as not credible Matos' subjective complaints of disabling pain, allegedly without adequately supporting his conclusion. Specifically, Matos takes issue with the ALJ's alleged failure to address "any of the Avery factors even though all the factors were required to be discussed." Pl. Br. at 14 (emphasis added).
First, as a matter of law, the ALJ is not required to address all of the Avery factors in his decision. N.L.R.B. v. Beverly Enters.-Mass., Inc., 174 F.3d 13, 26 (1st
Second, as a factual matter, the ALJ discussed many, if not all, of the relevant factors in his decision. He made specific citations to Matos' statements regarding his symptoms of pain: namely, (1) that Matos has continually experienced pain in the right arm and shoulder since his initial shoulder injury in 1992; (2) that he also has pain in the left arm and neck resulting from the surgery to remove his lipoma; (3) that he has been depressed since his wife and father died in August of 2007; and (4) that he suffers from low energy and sleeping difficulties. The ALJ also noted Matos' claims regarding his functional limitations: (1) that he could sit for only one or two hours a day; (2) that he could only stand and/or walk for thirty minutes at a time, for a total of four hours; and (3) that he could lift and/or carry only ten to fifteen pounds with his left arm, and only five pounds with his right arm.
The ALJ then highlighted specific evidence in the record that supported his finding that Matos' complaints were not credible. The lipoma on Matos' upper back had been repaired, without any resultant limitations. While the rotator cuff problem persisted, there was no evidence of muscle atrophy. Moreover, Matos testified that the pain associated with the rotator cuff tear had dissipated as a result of his taking Ultram. The ALJ added that the findings of Matos' physical and mental status examinations were on the whole "unremarkable": (1) Matos' gait and station were normal; (2) his mood and affect were appropriate; and (3) there was no erythema or swelling of his shoulder. He also noted that Matos had been found able to stand, sit, and walk for a total of six hours over the course of an eight hour workday. Finally, he gave weight to the professional judgment of the MRC medical consultants, who opined that Matos was able to perform light work.
Matos finally alleges that the ALJ's use of the Medical-Vocational Guidelines (Grids) at Step 5 in finding that he could perform other jobs in the national economy was improper. Specifically, Matos claims that the ALJ was required to elicit the testimony of a vocational expert to supplement or supplant the Grids, because Matos' non-exertional limitations—pain and the inability to read, write, or converse in English—"erode the occupational base and significantly impact his ability to do substantial gainful activity." Pl. Br. at 19.
While the First Circuit has cautioned against the mechanical application of the Grids where both exertional and non-exertional limitations are alleged, Da Rosa v. Sec'y of HHS, 803 F.2d 24, 26 (1st Cir.1986), the Commissioner may rely on the Grids "if a claimant's nonexertional limitations do not impose significant restrictions on the range of work that the claimant is exertionally capable of performing." Ortiz v. Sec'y of HHS, 890 F.2d 520, 524 (1st Cir.1989) (per curiam). In their relevant aspect, the court agrees with the Commissioner that Matos' claimed pain was not so severe so as to influence his ability to perform light work, even if his complaints were deemed credible. As the Commissioner contends, Matos' inability
For the foregoing reasons, the Commissioner's motion for an order of affirmance is ALLOWED. Matos' motion to reverse or remand is DENIED. The Clerk will enter judgment for the Commissioner and close the case.
SO ORDERED.
