Scarafone v. Astrue

Filing 20

Judge Rya W. Zobel: Memorandum of Decision entered denying 14 Motion for Order Reversing Decision of Commissioner; granting 18 Motion for Order Affirming Decision of Commissioner. Judgment may be entered affirming the decision of the Commissioner. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 13-10477-RWZ

NICHOLAS SCARAFONE
v.
CAROLYN W. COLVIN

MEMORANDUM OF DECISION
January 6, 2015
ZOBEL, D.J.
Plaintiff Nicholas Scarafone files this appeal under 42 U.S.C. § 405(g) seeking
to reverse the decision of defendant, Acting Commissioner of Social Security Carolyn
W. Colvin (“the Commissioner”), rejecting his application for Supplemental Security
Income (“SSI”) under the Social Security Act, 42 U.S.C. § 1383(c)(3) (“the Act”).
Plaintiff claims that the Commissioner’s denial of benefits was not supported by
substantial evidence, citing three alleged errors: (1) the Commissioner’s finding that his
degenerative disc disease did not meet an entry in the Listing of Impairments was too
conclusory; (2) the commissioner’s finding that he could perform light work with certain
restrictions is inconsistent with her finding that he needed a job where he could
alternate between sitting and standing every 30 minutes; and (3) the vocational expert
(“VE”) misinterpreted what constitutes transferable skills and when they are relevant to
other occupations. Plaintiff seeks reversal of the Commissioner’s final decision on the

basis of these three errors.

I. Background
A. Applicable Statutes and Regulations
Under section 1383(c)(3) of the Act, a claimant seeking SSI must prove that he
is unable to “engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A).
To meet this definition, a person must have a severe impairment that renders him
unable to do his past relevant work or any other substantial gainful work that exists in
the economy. 20 C.F.R. § 416.905(a).
The ALJ employs a five-step sequential evaluation process to assess a claim for
SSI. See 20 C.F.R. §§ 404.1520(a)(4)(I)-(v). The evaluation may be concluded at any
step in the process if it is determined that the claimant is or is not disabled. 20 C.F.R. §
404.1520(a)(4). In order, the ALJ must determine: (1) whether the claimant is engaging
in substantial gainful work activity; if not, (2) whether the claimant has a severe medical
impairment that meets the duration requirement; if so, (3) whether the impairment
meets or equals an entry in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P,
App. 1, and meets the duration requirement; if not, (4) whether the claimant’s residual
functional capacity (“RFC”) is sufficient to allow him to perform her past relevant work;
and, if not, (5) whether in light of the claimant’s RFC, age, education, and work
experience, he can make an adjustment to other work. Id. § 404.1520(a)(4)(I)-(v).
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A claimant’s “impairment(s), and any related symptoms, such as pain, may
cause physical and mental limitations that affect what [he] can do in a work setting.” 20
C.F.R. § 404.1545(a)(1). RFC is “the most [a claimant] can still do despite [his]
limitations.” Id. A claimant can adjust to other work if he can do any jobs that “exist in
significant numbers in the national economy (either in the region where [he] live[s] or in
several regions in the country).” Id. § 404.1560(c)(1).
The claimant bears the burden of proof on steps one through four, id. §
404.1520; the Social Security Administration (“SSA”) bears the burden of proof on step
five. Id. § 404.1560(c)(2); see Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001).
B. Procedural History
Plaintiff filed an application for SSI benefits on November 12, 2009, alleging
disability as of January 1, 2006. (Tr. 161). The SSA denied his application on May 3,
2010. Plaintiff filed a timely Request for Reconsideration on October 6, 2010, and on
October 19 filed a Request for a Hearing before an ALJ. The requested hearing was
held on July 6, 2011, and plaintiff’s appeal was denied on July 15, 2011. Plaintiff then
timely appealed that decision with the SSA’s Appeal Council on August 22, 2011. That
appeal was denied by decision dated December 28, 2012. Plaintiff subsequently
instituted this civil action pursuant to 42 U.S.C. § 405(g), seeking reversal of the SSA’s
final determination.
C. Evidence at the Hearing before the ALJ
At the December 29, 2010, administrative hearing, the ALJ heard testimony from
plaintiff and a vocational expert.
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1. Plaintiff’s Personal and Medical History
Plaintiff Nicholas Scarafone was born in Boston, Massachusetts, in 1957 and for
all relevant periods resided in Revere, Massachusetts. He holds a GED, and has
previously worked as a restaurant manager, ice cream sales person, taxi driver, and
tire technician. Plaintiff alleges he suffers from back pain, leg numbness, arm
numbness and pain, and foot pain.
Plaintiff testified that he was 54 years old on the date of the hearing, and he
lived with his wife and his paraplegic, wheelchair-bound son. Tr. 29-30. His son
received 32 hours of care per week from a personal care attendant; the rest of the time
plaintiff and his wife cared for him. Tr. 31. Plaintiff last worked in 2006, when he
managed a pizza restaurant. Tr. 38-40. He also assisted his father with the
management and winding down of a family business up to approximately three years
before the hearing. Tr. 40-42.
Plaintiff stated that he had sharp, shooting pain in the middle-center of his back
that went through the tailbone into the left leg, and that he had numbness in his left leg
above the knee. Tr. 54, 68-69. He had been using a cane for two and a half years, but
it had not been prescribed by a doctor. Tr. 54. Though his back pain had been
evaluated at Boston Medical Center, he had received no treatment and was taking no
medications at the time of the hearing. Tr. 55-56. Plaintiff also described pain,
weakness, and numbness in his left shoulder and upper arm area. Tr. 57. The pain
was made worse by prolonged standing without support, walking long distances, and
bending to lift objects over 10 to 15 pounds, and it was alleviated only during sleep.
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Tr. 62.
On a typical day, plaintiff woke up around 7:00 a.m. and helped get his son
ready with his wife’s assistance. Tr. 60. He did some housework and fixed some
meals and went to bed between 9:00 and 11:00 p.m., though he never slept through the
night due to pain. Tr. 60-62.
Notably absent from plaintiff’s evidence were any medical records or testimony
from his treating physicians.
2. Opinions of State Agency Physicians
On April 26, 2010, plaintiff was examined by Doctor Roger Komer. Tr. 420-423.
Dr. Komer found plaintiff had “[c]hronic low back pain . . . [o]ccasionally . . . radiat[ing]
to the left thigh.” Tr. 422. Plaintiff’s “MRI show[ed] lumbar spondylosis with disc
disease at the level of L4-L5,” and his “movement of the lumbrosacral spine show[ed]
moderate limitation.” Id.
On April 29, 2010, John Jao, M.D., reviewed the record and issued an opinion
on plaintiff’s physical RFC for the state agency. Tr. 424-31. He found that plaintiff
could frequently lift 10 pounds; occasionally lift 20 pounds; occasionally climb, balance,
stoop, kneel, crouch, and crawl; and sit, stand, and/or walk for about six hours each in
an eight-hour workday. Tr. 425. Dr. Jao also found that plaintiff’s then-recent lumbar
MRI showed no significant central canal stenosis. Tr. 426. A state agency medical
consultant affirmed Dr. Jao’s opinion after review of the record on October 3, 2010. Tr.
453.
3. Vocational Expert
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The VE, Lawrence Take, described plaintiff’s work history and vocational
background. Plaintiff had held a number of management positions in the food industry,
all classified as skilled jobs. Tr. 78. The VE testified that plaintiff had acquired
transferable skills from his management jobs in the form of “documentation skills,
supervision skills, training, and dealing with the general public, customer service skills,
using eyes, hands, and feet or eyes and hands in coordination, and working within
accuracies within specific limitations [sic]” as well as “money-handling skills.” Tr. 7980.

The VE responded to a series of hypothetical questions posed by the ALJ,

including hypotheticals involving workers with the limitations eventually found by the
ALJ. The VE testified that a hypothetical worker with the limitations imposed could
perform the skilled job of cashier checker, DOT code 211.462-014, with 77,000 such
positions available in Massachusetts and over 3,400,000 available in the national
economy. The VE further testified that a hypothetical individual with those limitations
could also perform unskilled light jobs in small product assembly, DOT code 706.684022, or as a ticket seller, DOT code 211.467-030, with 2,000 and 77,000 such jobs in
Massachusetts respectively. Tr. 82-83.
D. The ALJ’s Decision
Working through the five-step analysis, the ALJ first found that Mr. Scarafone
has not engaged in substantial gainful activity since the date of his SSI application. Tr.
14. Next, the ALJ found that plaintiff has degenerative disc disease, a severe
impairment under 20 C.F.R. 416.920(c). Third, the ALJ found plaintiff does not have an
impairment or combination of impairments that meets or medically equals one of the
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listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 416.920(d),
416.925 and 416.926). Fourth, the ALJ considered the entire record and concluded
that plaintiff has the RFC to perform “light work” under 20 C.F.R. 416.967(b), with the
exceptions that he is able to “climb, balance, stoop, kneel, crouch, crawl” but never
able to “climb ropes, ladders or scaffolds,” and requires a “sit/stand option with
changes every half hour.” Tr. 14. The ALJ concluded that plaintiff is unable to perform
any past relevant work because the demands of his prior work exceed his RFC.
The ALJ then went through step five of the five-step analysis mandated by
404.1520(a)(4)(I)-(v), finding that plaintiff was an individual closely approaching
advanced age on the date of filing, has the equivalent of a highschool education and
can speak English, and has acquired skills from his prior relevant work in the form of
“hand/eye coordination . . . accuracy standards, customer service, document skills,
supervisory skills, training skills and money handling skills.” Tr. 17. Considering these
factors, the ALJ concluded that Mr. Scarafone is capable of performing occupations
with jobs existing in significant numbers in the national economy, and he is therefore
not disabled under the Act.
II. Standard of Review
The Commissioner's findings of fact are conclusive if supported by substantial
evidence and based on the correct legal standard. 42 U.S.C. § 405(g); Seavey, 276
F.3d at 9. Substantial evidence is “more than a mere scintilla.” Richardson v. Perales,
402 U.S. 389, 401 (1971). It is “such relevant evidence as a reasonable mind might
accept as adequate to support [the] conclusion.” Id. The court must uphold the
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Commissioner’s determination “even if the record arguably could justify a different
conclusion, so long as it is supported by substantial evidence.” Rodriguez Pagan v.
Sec’y of Health and Human Servs., 819 F.2d 1, 3 (1st Cir. 1987). However, a denial of
benefits will not be upheld if the decision was “derived by ignoring evidence,
misapplying the law, or judging matters entrusted to experts.” Nguyen v. Chater, 173
F.3d 31 (1st Cir. 1999); see Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d
15, 16 (1st Cir. 1996) (citing Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
In determining the requisite quantity and quality of the evidence, the court will
examine the record as a whole, including whatever in the record fairly detracts from the
weight of the Commissioner's decision. Rohrberg v. Apfel, 26 F. Supp. 2d 303, 306 (D.
Mass. 1998).
III. Discussion
A. The ALJ’s Step-Three Finding is Supported by Substantial Evidence
Mr. Scarafone does not allege that his degenerative disease meets any listed
criteria, but instead simply argues that the ALJ’s determination was improperly
conclusory and not supported by substantial evidence. Plaintiff relies heavily on
Burnett v. Commissioner of Social Security Administration, 220 F.3d 112, 119 (3d Cir.
2000), and other cases of insufficient step-three analysis to this end. However, the
determination here is unlike Burnett and the other cases plaintiff cites where the ALJ’s
determination was “beyond meaningful judicial review.” Id. Whereas the ALJ in

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Burnett simply stated that the impairment did not meet the criteria and moved on,1 here
the ALJ specifically cited the evidence she had considered in making her
determination.2 Because the ALJ relied on substantial evidence in the form of the state
agency medical consultant’s opinions, and because plaintiff fails to identify any listing
that he meets or any medical evidence that the ALJ failed to consider, the step-three
analysis is not deficient and not subject to reversal on review by this court.
B. Capacity for Light Work is Not Incompatible With Rest Requirement
Plaintiff argues the ALJ’s determination of an RFC for light work was inconsistent
with the sit/stand requirement also imposed, citing SSR 83-10, 1983 WL 31251 at *6.
On the contrary, the ALJ’s finding is specifically contemplated by SSR 83-12: “[in] some
disability claims, the medical facts lead to an assessment of RFC which [is] compatible
with the performance of . . . light work except that the person must alternate periods of
sitting and standing.” SSR 83-12; see Aho v. Comm'r of Soc. Sec. Admin., 2011 WL
3511518, at *11 (D. Mass. Aug. 10, 2011).
Though this limitation may prevent employment in most light and sedentary
capacities, “[t]here are some jobs in the national economy . . . in which a person can sit
or stand with a degree of choice. If an individual had such a job and is still capable of
performing it, or is capable of transferring work skills to such jobs, he or she would be

1

“Although [plaintiff] has established she suffers from a [severe impairment], said impairment
failed to equal the level of severity of any disabling condition [contained in the regulations].” Burnett, 220
F.3d at 119.
2

“In reaching this conclusion, I have considered the opinions of the state agency medical
consultants who evaluated this issue at the initial and reconsideration levels of the administrative review
process and reached the same conclusion.” Tr. 14.

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found not disabled.” SSR 83-12. In these interstitial cases, SSR 83-12 requires only
that the ALJ consult a VE “to clarify the implications for [the plaintiff’s] occupational
base,” Id., and the ALJ did so.
The ALJ’s ruling was thus entirely consistent with the VE’s testimony, SSR 8312, and internally.
C. The Vocational Expert’s Testimony Regarding Transferable Skills
Plaintiff objects that the transferability of what the VE termed skills was not
relevant to the ALJ’s ultimate finding. “Transferability will be decisive in the conclusion
of ‘disabled’ or ‘not disabled’ in only a relatively few instances because, even if it is
determined that there are no transferable skills, a finding of "not disabled" may be
based on the ability to do unskilled work.” SSR 82-41. The VE here specifically found
that, accounting for plaintiff’s specific profile, he could perform the unskilled jobs of
“small product assembly (DOT # 706.684-022) and “ticket seller” (DOT # 211.467-030),
jobs that “do not require skills acquired in the claimant’s past relevant work.” Tr. 17.
Any alleged error by the VE in determining transferable skills was thus at most
harmless error.3
IV. Conclusion
Defendant’s Motion to Affirm the Commissioner’s Decision (Docket # 18) is
ALLOWED and Plaintiff’s Motion to Reverse the Commissioner’s Decision (Docket #
14) is DENIED.

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In any event, the VE’s finding of “money-handling skills” is indisputably a “skill,” and
supportably one plaintiff acquired as a manager of a pizza restaurant. Tr. 39, 80. He thus had some
transferable skills to the cashier job, as testified to by the VE. Tr. 80, 82-83.

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Judgment may be entered affirming the decision of the Commissioner.

January 6, 2015
DATE

/s/Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

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