Johnson v. Astrue
Filing
13
Judge George A. OToole, Jr: ORDER AND OPINION entered denying 8 Motion for Order Reversing Decision of Commissioner; granting 11 Motion for Order Affirming Decision of Commissioner (Lyness, Paul)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 11-CV-10219-GAO
DEREK BENARD JOHNSON
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
Defendant.
OPINION AND ORDER
September 21, 2012
O’TOOLE, D.J.
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), the plaintiff, Derek Johnson, appeals the
final decision of the Commissioner of the Social Security Administration (“Commissioner”)
denying the plaintiff’s application for Social Security Disability Insurance (“SSDI”) and
Supplemental Security Income (“SSI”) benefits. The plaintiff applied for SSDI and SSI benefits
on October 22, 2009, claiming disability as of June 6, 2005 due to chronic pain in his right foot.
After his claims were denied upon initial review, and again upon reconsideration, the plaintiff
filed a written request for a hearing before an Administrative Law Judge (“ALJ”). Following a
hearing, an ALJ issued a decision in which he concluded that the plaintiff was not disabled. After
the Disability Review Board failed to complete a review of the ALJ’s decision within ninety
days of its issuance, the ALJ’s decision was rendered the final decision of the Commissioner.
Before the Court are the plaintiff’s motion to reverse the Commissioner’s decision and remand
the matter for further proceedings (dkt. no. 8), and the defendant’s motion to affirm (dkt. no. 11).
I.
Background
On the date of his application for benefits, the plaintiff was forty-seven years old.
(Administrative Tr. at 98 [hereinafter R.].) 1 He has a high school diploma and, for twenty years,
worked as a laundry utility press operator. (R. at 124, 127.) The plaintiff stopped working on
June 6, 2005, the alleged onset date, and has not engaged in substantial gainful activity since. (Id.
at 10, 124.) He claims disability due to chronic pain in his right foot as a result of second and
third degree burns sustained as a child. (Id. at 25-26, 123, 196.)
The plaintiff first sought treatment for the pain in his right foot from Dr. Julien Dedier,
the plaintiff’s primary care physician, on September 28, 2009. (Id. at 181.) At that initial
meeting, Dr. Dedier examined the plaintiff and noted that his gait was antalgic, that he suffered
from tenderness in his right foot, and that he had some limitations in his range of motion. (Id. at
183.) However, Dr. Dedier found no erythema, swelling, or motor function impairment. (Id.)
Moreover, Dr. Dedier observed that the plaintiff was alert and oriented. (Id. at 183.) After
consulting with the plaintiff, Dr. Dedier prescribed naproxen, an anti-inflammatory drug, and
ordered diagnostic radiology scans. (Id. at 181, 184.) Those scans subsequently revealed no
evidence of bone, joint, or soft tissue abnormality, nor did they show any fracture or dislocation.
(Id. at 185.)
At a follow-up appointment with Dr. Dedier on February 1, 2010, the plaintiff again
presented with pain in his right foot. (Id. at 191.) Again, Dr. Dedier noted that the plaintiff’s gait
was antalgic, that he suffered from tenderness in his right foot, and that he had some limitations
1
The administrative record has been filed electronically (dkt. no. 7). In its original paper
form, its pages are numbered in the lower right-hand corner of each page. Citations to the record
are to the pages as originally numbered, rather than to numbering supplied by the electronic
docket.
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in his range of motion, but Dr. Dedier found no erythema, swelling, or motor function
impairment. (Id. at 193.) Dr. Dedier further observed that the plaintiff was alert and oriented, that
his mood and affect were appropriate, and that he made good eye contact. (Id.) Significantly, Dr.
Dedier’s notes do not indicate that the plaintiff reported any adverse side-effects from his
medication during that meeting. (Id.) Dr. Dedier prescribed the plaintiff acetaminophen and
referred him to Dr. Geoffrey Habershaw, a podiatrist. (Id. at 191, 193-194.)
The plaintiff saw Dr. Habershaw on April 5, 2010. (Id. at 195.) Again, the plaintiff
presented only with pain in his right foot and Dr. Habershaw’s notes do not indicate that the
plaintiff reported any adverse side-effects from his medication. (Id.) Upon examining the
plaintiff, Dr. Habershaw made findings substantially similar to those of Dr. Dedier, noting that
the plaintiff’s gait was antalgic and finding some limitations in his range of motion, but
observing no erythema or swelling. (Id. at 196.)
Dr. Habershaw noted probable neuritis
secondary to burn injuries and prescribed the plaintiff capsaicin topical ointment and lidocaine, a
local anesthetic. (Id. at 196, 197.)
At the plaintiff’s final documented medical appointment, with Dr. Dedier on June 28,
2010, the plaintiff again presented with pain in his right foot, but did not report any adverse sideeffects from his medication. (Id. at 199.) Dr. Dedier observed an antalgic gait, “mild-moderate
tenderness” in the plaintiff’s right foot, and limitations in his range of motion, but found no
erythema, swelling, or motor function impairment. (Id. at 201.) Dr. Dedier also observed that the
plaintiff was alert and oriented, that his mood and affect were appropriate, and that he made good
eye contact. (Id. at 201.) After the plaintiff told Dr. Dedier that none of the medications thus far
prescribed had been effective at completely relieving the plaintiff’s pain, Dr. Dedier prescribed
gabapentin, a drug used to treat neuropathic pain. (Id. at 199, 202.)
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Appearing pro se at a hearing before an ALJ on September 7, 2010, the plaintiff testified
that he experienced chronic pain and discomfort in his right foot. (Id. at 25-26.) The plaintiff also
testified that staying off of his right foot relieves the pain and discomfort, and that the
gabapentin, together with the naproxen, provides some relief. (Id.) Finally, at the hearing, the
plaintiff stated on two occasions that his medication made him drowsy, but did not indicate
which medication in particular caused this side-effect or elaborate as to its persistence. (Id. at 27,
35.) A vocational expert also testified, and identified several positions that, “someone of similar
age, education, and vocational background as the Claimant, who'll be limited to only sedentary
work with no pushing or pulling with the lower right leg,” could perform, including order clerk
and eyeglass polisher. (Id. at 30-34.)
In a decision dated September 20, 2010, the ALJ concluded that the plaintiff has a severe
impairment that prevents him from returning to work as a laundry utility press operator. (Id. at
10-12.) However, the ALJ also found that the plaintiff has the residual functional capacity to
perform unskilled sedentary work that does not require any pushing or pulling with the right
lower extremity and that such work is widely available in the national economy. (Id. at 13.)
Accordingly, the ALJ found that the plaintiff was not disabled within the meaning of the Social
Security Act, and denied the plaintiff’s application for SSDI and SSI benefits. (Id. at 14.)
II.
Standard of Review
In reviewing an ALJ’s decision to deny a claimant’s application for SSDI or SSI benefits,
this Court’s role is limited to determining “whether the ALJ used the proper legal standards and
found facts upon the proper quantum of evidence.” Ward v. Comm'r of Soc. Sec., 211 F.3d 652,
655 (1st Cir. 2000). While this Court reviews questions of law de novo, it defers to an ALJ’s
factual findings where they are supported by substantial evidence. (Id.) An ALJ’s factual finding
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is supported by substantial evidence “if a reasonable mind, reviewing the evidence in the record
as a whole, could accept [the evidence] as adequate to support his conclusion.” Irlanda Ortiz v.
Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (quoting
Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir.1981)).
III.
Discussion
The plaintiff advances several arguments in support of his motion to reverse the
Commissioner’s decision and remand the matter for further proceedings. First, he argues that the
ALJ’s disability determination was not supported by substantial evidence because the ALJ failed
to address the extent to which non-exertional limitations—namely, the side-effects of the
plaintiff’s prescribed medication and his chronic pain—affect the plaintiff’s residual functional
capacity to perform sedentary work. Second, the plaintiff argues that the ALJ’s disability
determination was not supported by substantial evidence because the ALJ failed to instruct the
vocational expert to consider these non-exertional limitations, thus rendering the expert’s
testimony incapable of supporting the ALJ’s disability determination. Finally, the plaintiff argues
that the ALJ breached his duty to develop fully a pro se claimant’s arguments for granting
benefits.
A.
The ALJ did not err by failing to address the extent to which non-exertional
limitations affect the plaintiff’s ability to perform sedentary work.
The plaintiff’s first contention is that the ALJ’s disability determination was not
supported by substantial evidence because the ALJ failed to address what effect, if any, the
plaintiff’s prescribed medication and chronic pain have on his ability to perform sedentary work.
Where, as here, a claimant establishes that he suffers from a severe physical impairment 2 that
2
The ALJ disagreed with state agency medical consultants who would not have
classified the plaintiff’s foot pain as a “severe” impairment.
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does not meet or equal an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1, an ALJ
must consider the extent to which the claimant’s impairment and any related symptoms affect his
residual functional capacity. 20 C.F.R. § 404.1529(d)(4) (2012); Avery v. Sec'y of Health &
Human Servs., 797 F.2d 19, 21 (1st Cir. 1986). Specifically, an ALJ must consider:
1. The nature, location, onset, duration, frequency, radiation, and intensity of any pain;
2. Precipitating and aggravating factors (e.g., movement, activity, environmental
conditions);
3. Type, dosage, effectiveness, and adverse side-effects of any pain medication;
4. Treatment, other than medication, for relief of pain;
5. Functional restrictions; and
6. The claimant's daily activities.
(Id. at 29) (emphasis added). However, an ALJ is only required to consider those impairments
that a claimant alleges or concerning which a claimant has submitted evidence. 20 C.F.R. §
404.1512(a) (2012).
The plaintiff first alluded to the fact that his medication made him drowsy during his
September 7, 2010 hearing. (R. at 27, 35.) The record does not indicate that the plaintiff reported
drowsiness or any other side-effects associated with his medication prior to this date. In fact, on
two forms titled “Activities of Daily Living”—one signed and dated November 26, 2009, the
other signed and dated April 5, 2010—the plaintiff indicated that he experienced difficulty
sleeping. (Id. at 137, 149.) Furthermore, at no point prior to this appeal did the plaintiff make or
provide support for the additional claim that drowsiness restricts his ability to perform sedentary
work.
As for the plaintiff’s pain, the ALJ credited the plaintiff’s claim that his pain persists,
albeit to a lesser degree, even when seated. (R. at 12, 35.) But, as the record indicates throughout,
the plaintiff claims disability because his pain prevents him from standing for long periods—not,
prior to this appeal, because it prevents him from, e.g., sitting or concentrating. As the ALJ
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observed, the fact that neither Dr. Dedier nor Dr. Habershaw referred the plaintiff for surgical
treatment or prescribed the plaintiff narcotics to manage his pain suggests that the plaintiff’s pain
is not so severe as to limit his ability to perform sedentary work. Consequently, the ALJ could
reasonably conclude, based on the plaintiff’s medical record and the absence of any assertions or
evidence to the contrary, that neither the plaintiff’s medication nor his chronic pain imposes
significant non-exertional limitations on his ability to perform sedentary work.
B.
The ALJ did not err by failing to instruct the vocational expert to consider the
extent to which non-exertional limitations affect the plaintiff’s ability to perform
sedentary work.
The plaintiff next contends that the ALJ’s disability determination was not supported by
substantial evidence because he neglected to instruct the vocational expert to consider the
plaintiff’s non-exertional limitations, thus rendering the expert’s testimony incapable of
supporting the ALJ’s disability determination. Where a claimant establishes that he is unable to
perform previous work, the ALJ bears the burden of showing that the claimant remains able to
engage in other forms of substantial gainful activity. Arocho v. Sec'y of Health & Human Servs.,
670 F.2d 374, 375 (1st Cir. 1982). Usually, an ALJ discharges this burden by relying on a
vocational expert who can testify—given the claimant’s age, education, work experience, and
residual functional capacity—to the availability of specific jobs that the claimant can perform.
Id. However, an ALJ may rely on a vocational expert’s testimony only insofar that it is informed
by the ALJ’s findings. Id. Thus, where a vocational expert’s testimony is based on a hypothetical
question that fails to convey precisely the claimant’s residual functional capacity, the ALJ cannot
rely on that testimony to discharge his burden of showing that the claimant remains able to
engage in other substantial gainful activity. See, e.g., Rose v. Shalala, 34 F.3d 13, 19 (1st Cir.
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1994) (vacating and remanding where an ALJ neglected to instruct a vocational expert to
consider the “significant functional limitation” imposed by the claimant’s fatigue symptoms).
Here, because the ALJ could reasonably conclude, based on the plaintiff’s medical record
and the absence of any assertions or evidence to the contrary, that neither the plaintiff’s
medication nor his chronic pain imposes significant non-exertional limitations on his ability to
perform sedentary work, the ALJ did not err by neglecting to instruct the vocational expert to
consider these factors.
C.
The ALJ did not err by failing to develop more fully the claimant’s arguments for
granting benefits.
Finally, the plaintiff argues that the ALJ breached his duty to develop fully a pro se
claimant’s arguments for granting benefits. When a claimant appears pro se, an ALJ has a
heightened duty to investigate the facts and develop the arguments for granting benefits.
Heggarty v. Sullivan, 947 F.2d 990, 997 (1st Cir. 1985) (per curiam). But an ALJ is not required
to “go to inordinate lengths to develop a claimant's case.” Thompson v. Califano, 556 F.2d 616,
618 (1st Cir. 1977). And where a claimant has failed to offer testimony linking an alleged nonexertional limitation to an alleged inability to perform sedentary work, an ALJ has no obligation
to develop more fully the record on this point. Devlin v. Sec'y of Health & Human Servs., 981
F.2d 1245, 1245 (1st Cir. 1992) (per curiam).
Here, while the record documents that the plaintiff consistently complained that he was
unable to stand on his feet for long periods, it indicates that only twice—and only at his
September 7, 2010 hearing—did the plaintiff complain of side-effects from his medication that
suggest non-exertional limitations on his ability to perform sedentary work. Moreover, only on
appeal does the plaintiff make the additional, necessary claim that the side-effects of his
medication and his chronic pain in fact impose such limitations. Because the plaintiff failed to
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make assertions, submit evidence, or provide testimony that sufficiently brought these questions
to the attention of the ALJ, the ALJ did not err in failing to develop the record more fully on
these points before reaching his decision. Santiago v. Sec'y of Health & Human Servs., 944 F.2d
1, 6 (1st Cir. 1991) (per curiam).
IV.
Conclusion
For the foregoing reasons, the plaintiff’s motion to reverse the Commissioner’s decision
and remand the matter for further proceedings (dkt. no. 8) is DENIED and the defendant’s
motion to affirm the Commissioner’s decision (dkt. no. 11) is GRANTED. The decision of the
Commissioner is AFFIRMED.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge
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