Pennell v. Colvin

Filing 20

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER"For the foregoing reasons, the Court AFFIRMS the decisionof the hearing officer, GRANTS the Defendants Motion to Affirmthe Commissioners Decision, ECF No. 17, and DENIES thePlaintiffs Motion to Vacate the Decision of the Commissionerand to Reverse or Remand, ECF No. 11.SO ORDERED."(Sonnenberg, Elizabeth)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

WILLIAM T. PENNELL JR.,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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CIVIL ACTION
NO. 13-11519-WGY

YOUNG, D.J.

September 25, 2014
MEMORANDUM AND ORDER

I.

INTRODUCTION
This is an action under section 205(g) of the Social

Security Act, 42 U.S.C. § 405(g).

Compl. 1, ECF No. 1.

The

Plaintiff, William T. Pennell Jr. (“Pennell”), is seeking
judicial review of the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying him
Social Security disability insurance (“SSDI”) benefits.

Id.

Pennell argues that the decision of the Administrative Law Judge
(the “hearing officer”) denying him benefits contained errors of
law and was not based on substantial evidence.

Id. at 2-3.

Specifically, he claims the hearing officer did not give

1

appropriate weight to the medical evidence existing prior to the
date last insured and failed to apply the proper standard of law
in determining the onset date of his disability.

Mem. Supp.

Pl.’s Mot. Vacate Comm’r’s Final Decision (“Pl.’s Mem.”) 6, ECF
No. 12.

Pennell therefore requests that this Court reverse the

hearing officer’s decision and award benefits under the
provisions of the Social Security Act, or, alternatively, remand
the case for further hearing.
an award of attorney’s fees.

Compl. 3.
Id.

Pennell also requests

The Commissioner requests

that this Court affirm her decision and deny Pennell SSDI
benefits.

Def.’s Mot. Affirm Comm’r’s Decision (“Def.’s Mot.

Affirm”) 1, ECF No. 17.
A.

Procedural Posture

Pennell applied for SSDI benefits on April 17, 2009.
Compl. 1-2; Answer 2, ECF No. 6.

The Social Security

Administration denied his application initially and upon
reconsideration.

Admin. R. 9, 81, ECF No. 7.

On February 12,

2010, Pennell completed a request for a hearing before a hearing
officer.

Id. at 104.

A hearing took place on February 22,

2011, in Boston, Massachusetts.

Id. at 50.

The hearing officer

issued a decision denying Pennell’s application for SSDI
benefits on March 18, 2011.

Id. at 81, 87.

Pennell appealed

the unfavorable decision to the Appeals Council of the Social
Security Administration.

Id. at 92.
2

On September 21, 2011, the

Appeals Council vacated the hearing officer’s decision and
remanded the case to the Social Security Administration.

Id.

A

second hearing occurred on May 3, 2012, before the same hearing
officer.

Id. at 23.

On May 18, 2012, the hearing officer again

denied Pennell’s request for SSDI benefits.

Id. at 6.

On May

31, 2012, Pennell filed an appeal of that decision to the Social
See id. at 5.

Security Appeals Council.

On April 26, 2013, the

Appeals Council denied his request for review.

Id. at 1.

On June 26, 2013, Pennell filed the present action pursuant
to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of the
Commissioner’s decision.

Compl. 1.

answer on August 27, 2013.

The Commissioner filed an

Answer 1-3.

On November 12, 2013,

Pennell filed a motion and supporting memorandum requesting a
reversal of the Commissioner’s decision.

Pl.’s Mot. Vacate

Decision Comm’r & Reverse or Remand, ECF No. 11; Pl.’s Mem.

The

Commissioner responded on February 4, 2014, by filing a motion
for an order affirming her decision.

Def.’s Mot. Affirm.

The

same day, the Commissioner filed a memorandum supporting her
motion.

Mem. Law Supp. Def.’s Mot. Affirm Comm’r’s Decision

(“Def.’s Mem.”), ECF No. 18.

On February 15, 2014, Pennell

filed a reply memorandum to the Commissioner’s response.
Reply Mem. (“Pl.’s Reply”), ECF No. 19.
B.

Factual Background

3

Pl.’s

Pennell was born on January 27, 1957.

Admin. R. 26.

As of

his date last insured,1 December 31, 2007, he was fifty years
old.

See id. 9, 81.

Since January 2000, Pennell has sought

medical treatment for back problems.

Id. at 284-85.

On

February 11, 2009, Pennell sustained serious injuries in a motor
vehicle accident.

See id. at 337.

As a result of the accident,

related surgeries, and other medical issues, Pennell suffered
from split muscles, a hernia, an open wound, abrasions requiring
skin grafts, carpal tunnel syndrome, and the loss of sight in
his left eye.

Id. at 61-62.

On his application for SSDI

benefits, Pennell listed his disability onset date as April 1,
2006, claiming he could no longer work at that point due to back
pain.
27.

Id. at 221.

Pennell is a high school graduate.

Id. at

His past work experience includes working as a car salesman

for thirteen years from 1990 to 2003.

Id. at 222.

Pennell also

spent a few summers in the early 2000s working as a pool
salesman.

Id. at 29-30.

He later worked as a gutter salesman

from February 2006 through April 2006.
1.

Id. at 222.

Medical Evidence

In regards to his pre-accident disability, Pennell reported
having back pain as early as 2000.
1

See id. at 284-85.

On

The date last insured is the last date on which an
applicant is eligible to receive SSDI. To be Title II
Disability Insurance Benefit eligible, an applicant must have
disability insured status as of the onset date of a disability.
See 20 C.F.R. 404.131(a).
4

January 6, 2000, he saw Dr. Jeffrey Jackel at Milton Hospital
and was given a lumbar epidural block with steroid injection.
Id. at 284, 286.

Pennell received additional steroid injections

numerous times between 2000 and 2002.

Id. at 284, 289, 291-92.

In 2002, neurological reports produced by Dr. Patrick J. Madden
(“Dr. Madden”) at Milton Hospital indicated that there was
evidence of acute left L5 radiculopathy and mild chronic left S1
radiculopathy.

Id. at 285.

Subsequent neurological

examinations through 2003 documented Pennell’s complaints of
neck and back pain as well as upper and lower extremity numbness
and weakness.

See id. at 311-12, 314, 322, 327-29.

On January

29, 2002, a lumbar spine MRI revealed anterolisthesis of L5 on
S1 and moderate to severe diffuse disc bulging resulting in
moderate to severe bilateral neural foraminal stenosis.

Id. at

581.
Neurophysiological testing conducted on February 18, 2002,
revealed evidence of a predominantly sensory demyelinating
polyneuropathy and mild to moderate chronic right-sided cervical
polyradiculopathy.

Id. at 314-15.

A cervical MRI conducted by

Dr. Madden on April 3, 2002, showed disc bulges at the C3-C4 and
C5-C6 levels.

Id. at 312.

Subsequent MRI exams in 2003 showed

these bulges as well as stenosis at L2-L3 and a protrusion at
C5-6.

Id. at 305-08.

During a July 2003 examination with Dr.

Madden, Pennell complained of left upper extremity numbness and
5

decreased left hand grip.

Id. at 309.

Testing showed left

median mononeuropathy at the carpal ligament, which is
consistent with left carpal tunnel syndrome, as well as left C6
radiculopathy.

Id. at 310.

A CT scan conducted on August 17,

2004, showed degenerative changes of the L4-L5 facet joints and
bilateral L5 spondylolysis.

Id. at 583.

Later, during a

follow-up examination at Highland Medical Center on November 24,
2004, Pennell reported having continued back pain.

Id. at 577.

Between at least December 2003 and June 2005, the claimant was
prescribed the medication Vicodin.

See id. at 576, 579-80.

Pennell again reported having back pain during an appointment at
Highland Medical Center on April 18, 2006.
2.

Id. at 575.

The 2011 and 2012 Hearings

On February 22, 2011, Pennell appeared before a hearing
officer for the first time to testify about his application for
SSDI benefits.

Id. at 50.

Pennell explained that he worked for

years as a car salesman, during which he spent a substantial
amount of time on his feet, walking around, taking customers on
test drives, and filling out paperwork.

Id. at 58-59.

During

the winters, as a part of his job description, the claimant
shoveled snow, cleaned snow off of cars, and moved cars to
alternate locations.

Id. at 59-60.

In his capacity as a gutter

salesman, Pennell went to homes, took measurements, climbed
ladders, and made estimates for customers.
6

Id. at 60.

Pennell was not working at the time of this hearing and
explained that his medical conditions prevented him from
working.

Id. at 61.

Many of the impairments he listed were a

result of his February 2009 car accident.

Id. at 61-62, 337.

Pennell went on to explain that he has had back problems since
at least 2000, stating that the resulting pain prevented him
from working.

Id. at 62.

The claimant was on medication to

alleviate his back pain, but weaned himself off of it over the
course of a few years because it made him dizzy and unable to
function.

Id. at 63.

In response to questioning by his attorney, Pennell
explained that Dr. Madden treated his back problems by
prescribing medication and referring him to receive epidurals.
Id. at 64.

Pennell attempted to return to work in 2002 but

could not stand the pain and stopped working at his car
dealership in 2003.

Id. at 65.

Pennell had difficulty writing,

holding a ruler, and performing household chores.
66.

See id. at

While he was able to take out the trash and cook for

himself and his wife, he re-injured his back when mowing the
lawn.

Id. at 66-67.

With regard to his injuries sustained in

the 2009 car accident, Pennell explained that he struggled to
conduct daily activities such as bending over, tying his shoes,
and sleeping.

Id. at 69.

He stated that even when performing a

sedentary task, sitting for six hours and standing for two hours
7

a day, he would be in severe pain.

Id. at 69-70.

Pennell

testified that in 2004, he was instructed not to lift more than
ten pounds.

Id. at 70.

The hearing officer then examined a vocational expert as to
Pennell’s past jobs.

Id. at 71-73.

The expert testified that

working as a car, gutter, and pool salesman were skilled
positions that required light exertional levels.

Id. at 71.

The vocational expert explained that Pennell’s jobs provided him
with transferrable skills including “customer service,
communication, product knowledge, financing, [and] negotiating.”
Id. at 72.
A second hearing occurred on May 3, 2012, following the
notice of an order issued by the Social Security Appeals Council
vacating the decision and remanding the case to the hearing
officer.

Id. at 23, 92.

Pennell’s testimony concerning his

age, education, and work history remained consistent with his
previous testimony during the February 22, 2011, hearing.
at 26-27.

Id.

He provided additional details regarding his work as

a pool salesman, explaining that he would travel to the homes of
potential customers, take measurements, and discuss with
customers what type of pool could be installed.

Id. at 30.

Pennell asserted that since December 31, 2007, he has been
unable to work as a car salesman or in any of his other previous
jobs, due to back pain and neck pain.
8

Id. at 31-32.

Pennell posited that his back pain arose as early as 2000,
and that the back pain did not develop over time, but rather
“just happened.”

Id. at 33.

On a typical day, the claimant

spent three to four hours standing up and would have to sit for
one or two hours and rest because of the pain.

Id. at 34-36.

On occasion, Pennell would miss work due to the pain or show up
late because he had to take additional measures to alleviate his
pain.

Id. at 34-35.

He took pain medications including

Oxycontin, Vicodin, and fentanyl patches between 2003 and 2006.
Id. at 37.

At the time of this hearing, Pennell was taking

oxycodone and using a fentanyl patch prescribed by a doctor at
Massachusetts General Hospital.

Id. at 37-38.

Pennell also noted problems using his left hand due to
carpal tunnel syndrome.

Id. at 39.

He discussed surgery as an

option for his back problems in 2000, but decided against it.
Id. at 40.

He also stated that he has difficulty sleeping and

breathing at night.
3.

Id. at 42.

State Agency and Medical Source Assessments

The record contains two state agency assessments: one
conducted in September 2009, and the other conducted in February
2010.

Id. at 472, 569.

These assessments were conducted by

doctors who reviewed Pennell’s medical records to determine
whether there was sufficient evidence of a disability prior to
the date Pennell was last insured.
9

Id.

In the September 2009

assessment conducted by Dr. Theresa Kriston, she found there to
be “insufficient evidence upon which to adjudicate the claim at
this time.”

Id. at 472.

She noted, however, that the claimant

appeared to have a history of back pain which caused him to
cease working in 2006.

Id.

Dr. M.A. Gopal conducted the

February 2010 state agency assessment, which similarly revealed
that there was insufficient medical evidence from April 2006 to
December 2007 to determine whether the claimant was disabled as
of the date last insured.

Id. at 569.

In a medical source statement dated October 2009, following
the February 2009 motor vehicle accident, a physician observed
that Pennell could lift and carry ten pounds, could stand and
walk for less than two hours in an eight-hour workday, and must
periodically alternate between sitting and standing to relieve
pain or discomfort.

Id. at 527-28.

The physician’s assessment

also indicated that Pennell had limitations in both his upper
and lower extremities with regards to pushing and pulling, and
that he could perform certain postural activities only
occasionally.

Id. at 528.

Further, Pennell’s eyesight was

limited due to optical nerve damage.

Id. at 529.

Finally, the

physician concluded that Pennell’s impairments limited his
ability to handle extreme temperatures; dust; vibration;
humidity or wetness; hazards such as machinery or heights; and
fumes, odors, chemicals, and gases.
10

Id. at 530.

II.

LEGAL STANDARD
A.

Standard of Review

This Court’s review of a Social Security disability benefit
determination is governed by 42 U.S.C. § 405(g), which provides
that “a district court has the power to affirm, modify, or
reverse a decision of the Commissioner.”
F. Supp. 2d 30, 33 (D. Mass. 2011).

Rivera v. Astrue, 814

The Court “must uphold a

denial of social security disability benefits unless ‘the
Secretary has committed a legal or factual error in evaluating a
particular claim.’”

Manso-Pizarro v. Sec'y of Health & Human

Servs., 76 F.3d 15, 16 (1st Cir. 1996) (quoting Sullivan v.
Hudson, 490 U.S. 877, 885 (1989)).

Additionally, in making a

ruling, “[t]he findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be
conclusive.”

42 U.S.C. § 405(g).

The First Circuit has stated

that “if a reasonable mind, reviewing the evidence in the record
as a whole, could accept it as adequate to support his
conclusion,” then the Commissioner’s findings must be upheld.
Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991) (quoting Rodriguez v. Sec’y of Health and
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) (internal
quotation marks omitted)).

“As it is the role of the

Commissioner to draw factual inferences, make credibility
determinations, and resolve conflicts in the evidence, the Court
11

must not perform such tasks in reviewing the record.”
814 F. Supp. 2d at 33.

Rivera,

“[U]nder the substantial evidence

standard, the Court must uphold the Commissioner's
determination, ‘even if the record arguably could justify a
different conclusion, so long as it is supported by substantial
evidence.’”

Id. (quoting Rodriguez Pagan v. Sec’y of Health &

Human Servs., 819 F.2d 1, 3 (1st Cir. 1987)).

This Court,

however, may “review the conclusions of law of the
administrative law judge, . . . and may invalidate findings of
fact which are ‘derived by ignoring evidence, misapplying the
law, or judging matters entrusted to experts.’”

Bazile v.

Apfel, 113 F. Supp. 2d 181, 184 (D. Mass. 2000) (quoting Nguyen
v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam)).
B.

Social Security Disability Standard

Under 20 C.F.R. § 404.1505, a person is disabled if he or
she lacks the ability “to do any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than 12 months.”

The Social Security Administration uses a

five-step evaluation process to determine whether a person is
disabled.

Id. § 404.1520(a)(1).

work ability is considered.

At step one, the claimant’s

Id. § 404.1520(a)(4)(i).

If the

claimant is performing "substantial gainful activity,” he or she
12

will be found not disabled.

See id.; see also id. § 404.1572.

Substantial work activity “involves doing significant physical
or mental activities,” id. § 404.1572(a), and gainful work
activity describes work “done for pay or profit, whether or not
a profit is realized,” id. § 404.1572(b).
If the claimant is not performing substantial gainful
activity, the evaluation proceeds to the second step, where the
medical severity of the claimant’s impairments is considered.
Id. § 404.1520(a)(4)(ii).

In order to be found disabled, this

step requires that the claimant “have a severe medically
determinable physical or mental impairment that meets the
duration requirement in section 404.1509, or a combination of
impairments that is severe and meets the duration requirement.”
Id.

Current regulations define a severe impairment as an

impairment which “significantly limits your physical or mental
ability to do basic work activities.”

Id. § 404.1520(c).

“[T]he claimant bears the burden of showing that he has a severe
impairment or a combination of severe impairments.”
F. Supp. 2d at 35.

Rivera, 814

In addition, unless the impairment at issue

“is expected to result in death, it must have lasted or must be
expected to last for a continuous period of at least 12 months.”
20 C.F.R. § 404.1509.
If this step is satisfied, the evaluation proceeds to the
third step, where the medical severity of the claimant’s
13

impairments is considered under specific criteria.
404.1520(a)(4)(iii).

Id. §

Here, the claimant will be found disabled

if his or her impairments “meet[] or equal[] one of [the]
listings in appendix 1 of this subpart and meet[] the duration
requirement.”

Id.

If the claimant fails to satisfy step three

by not having an impairment that meets or equals a listed
impairment, then the residual functional capacity of the
claimant must be determined prior to moving to step four of the
analysis.

Id. § 404.1520(e).

The claimant’s residual

functional capacity “is the most [he or she] can still do [in a
work setting] despite [his or her] limitations.”
404.1545(a)(1).

Id. §

This is determined based on all the relevant

evidence in the case record.

Id.

In reaching this

determination, all medically determinable impairments are
considered, including those that are not severe.
404.1545(a)(2).

Id. §

In addition, the claimant’s “ability to meet

the physical, mental, sensory, and other requirements of work”
is also considered.

Id. § 404.1545(a)(4).

The fourth step evaluates the claimant’s residual
functional capacity.

Here, the claimant’s residual functional

capacity is considered in conjunction with his or her past
relevant work.

Id. § 404.1520(a)(4)(iv).

If the claimant can

still perform his or her past relevant work, the hearing officer
will find the claimant not disabled.
14

Id.

At the fifth and final step of this analysis, the hearing
officer considers the claimant’s residual function capacity,
along with his or her “age, education, and work experience to
see if [the claimant] can make an adjustment to other work.”
Id. § 404.1520(a)(v).

If the claimant is able to perform other

work, the hearing officer will find the claimant not disabled.
Id.

Likewise, if the claimant is unable to adjust to other

work, he or she will be found disabled.

Id.

“The claimant

bears the burden in the first four steps to show that he is
disabled within the meaning of the Act,” while the Commissioner
bears the burden of proving that the claimant is able to perform
other work at the final step of analysis.

Rivera, 814 F. Supp.

2d at 34.
III. THE HEARING OFFICER’S DECISION
Following Pennell’s first hearing on February 22, 2011, the
hearing officer denied Pennell’s application for SSDI benefits
on March 18, 2011.

Admin. R. at 50, 81-87.

The hearing

officer, applying the five-step sequential analysis process,
explained his findings of facts and conclusions.

First, he

concluded that Pennell did not engage in substantial gainful
activity between the alleged onset date of April 1, 2006, and
the date last insured of December 31, 2007.

Id. at 84.

Next,

the hearing officer found that the claimant had multiple
“medically determinable” impairments, but that the “record
15

fail[ed] to establish any severe impairment.”

Id. at 86.

After

considering the administrative record and Pennell’s testimony,
the hearing officer found Pennell not disabled.

Id. at 86-87.

Upon Pennell’s appeal, the Appeals Council for the Social
Security Administration vacated and remanded his case, id. at
93, instructing the hearing officer to “further evaluate the
claimant’s impairments and proceed to the next step . . . in the
sequential evaluation process,” id., and to “further evaluate
the claimant’s subjective complaints and provide rationale in
accordance with the disability regulations pertaining to
evaluation of symptoms,” id. at 93-94.
After further evaluation of Pennell’s case at a subsequent
hearing, the hearing officer again denied his application for
benefits on May 18, 2012, after following the five-step process
outlined above.

Id. at 9-17.

First, the hearing officer

concluded that Pennell did not engage in substantial gainful
activity between the alleged onset date of April 1, 2006,
through Pennell’s date last insured of December 31, 2007.
at 12.

Id.

At step two, the hearing officer concluded that Pennell

“had the following medically determinable impairments: mild
stenosis at L2-3 and grade I anterolisthesis at L5-S1 with
radiation to the left lower extremity; C3-4 and C6-7 bulges and
C5-6 disc protrusion with left C6 radiculopathy; right-sided
polyneuropathy; and left carpal tunnel syndrome.”
16

Id.

Despite

finding the claimant had these impairments, the hearing officer
found that the claimant “did not have a severe impairment or
combination of impairments.”

Id. at 15.

Although the hearing officer concluded that Pennell’s
impairments were not severe at step two, the hearing officer
continued to step three as instructed by the Appeals Council.
Id. at 16.

Here, the hearing officer concluded that Pennell

failed to establish that his conditions met or equaled a listed
impairment, and also failed to describe his physical and mental
limitations as of the date last insured.

Id. at 16-17.

As a

result, the hearing officer concluded that Pennell was not
disabled during the time between the alleged onset date through
the date last insured.

Id. at 17.

The hearing officer was not

required to continue to steps four and five of the analysis
because “all five steps are not applied to every applicant, as
the determination may be concluded at any step along the
process.”

Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir.

2001).
IV.

ANALYSIS
A.

Pennell’s Arguments

Pennell requests that this Court reverse the decision of
the Commissioner and approve his application for benefits,
arguing that the decision was not supported by substantial
evidence and that the hearing officer made errors of law in
17

evaluating his testimony.

Compl. 2-3.

First, Pennell claims

that the hearing officer did not give proper weight to the
medical evidence existing prior to the date last insured,
particularly in regards to his impairments stemming from his
back pain.

Pl.’s Mem. 6-7.

Specifically, Pennell argues that

the hearing officer improperly treated a noticeable decline of
medical treatment between 2004 and 2009 as an indication that
the Plaintiff was not disabled as of December 31, 2007, the date
last insured.

Id. at 8; see also Def.’s Mem. 9.

His second

argument alleges that the hearing officer failed to follow the
proper procedures for establishing the onset date of his
disability, and also failed to establish any findings as to his
current disability.

Pl.’s Mem. 9-11.

In the event that this

Court decides not to reverse the decision of the Commissioner,
Pennell further requests that his case be remanded for further
hearing.

Compl. 3.

“[A] denial of disability benefits need not be upheld if
there has been an error of fact or law in the evaluation of the
particular claim.”

Bitsacos v. Barnhart, 353 F. Supp. 2d 161,

164 (D. Mass. 2005) (Neiman, M.J.).

Upon careful review of the

written conclusions provided by the hearing officer, as well as
the administrative record and parties’ briefs, the Court
determines that the 2012 denial of disability benefits should be

18

upheld, ruling that there was no error of fact or law made by
the reviewing hearing officer.
B.

Disputed Medical Evidence Prior to the Date Last
Insured

Following the May 2012 hearing, the hearing officer
determined that Pennell did not have a severe impairment or
combination of impairments that significantly limited his
ability to perform work-related activities for twelve
consecutive months, as of the date last insured.
see also 20 C.F.R. § 404.1521.

Admin. R. 15;

In reaching this decision, the

hearing officer considered Pennell’s symptoms, together with
objective medical evidence and the testimony of a vocational
expert.

Admin. R. 10, 15.

The hearing officer relied heavily

on the assessments of Drs. Kriston and Gopal, finding that their
assessments were consistent with the record as a whole.
15.

Id. at

Dr. Kriston in September 2009 found that there was

“insufficient evidence upon which to adjudicate the claim,” id.
at 472, and Dr. Gopal in February 2010 also found insufficient
evidence to conclude that the claimant had a disability from
April 2006 to December 2007, id. at 569.

Although the hearing

officer acknowledged that Pennell testified to back pain and
left carpal tunnel syndrome prior to the date last insured, he
noted that had these symptoms been truly severe, Pennell would
have reasonably sought medical treatment during the five-year
19

period between 2004 and the date of the accident in 2009, id. at
16, especially in light of the fact that Pennell received a
noticeably greater amount of medical treatment for his back pain
between 2000 and 2003.

See id. at 12-15 (including multiple

steroid injections, pain medication prescriptions for Oxycontin,
fentanyl, and Vicodin, and numerous nerve and MRI tests); see
also Pl.’s Mem. 8.

Noting the decline in treatment records

between 2004 and 2009 in comparison to this earlier period, the
hearing officer concluded there was insufficient medical
evidence to support the finding of a severe impairment as of the
date last insured, and denied benefits to Pennell.

Admin. R.

15-17.
Pennell strongly contests the hearing officer’s conclusion
that although he found evidence that Pennell sought testing and
treatment for back pain between 2000 and 2003, “[t]he record
indicate[d] no treatment for 5 years between 2004 and the 2009
motor vehicle accident.”

Id. at 16.

Pennell argues that the

hearing officer improperly disregarded medical evidence in the
record which indicated that Pennell had received treatment
during this period.

For instance, there is a report of a CT

scan conducted on August 17, 2004, showing degenerative changes
of the L4-L5 facet joints and bilateral L5 spondylolysis.
at 583.

Id.

Pennell also sought treatment at Highland Medical

Center on November 24, 2004, where he reported continued back
20

pain.

Id. at 577.

In addition, between at least December 2003

and June 2005, Pennell was prescribed Vicodin.
80.

Id. at 576, 579-

Pennell again reported having back pain during an

appointment at Highland Medical Center on April 18, 2006.
at 575.

Id.

Though the Court acknowledges that such evidence

contradicts the hearing officer’s claim that the claimant did
not seek treatment between 2004 and 2009, it agrees with the
hearing officer’s overall determination that the evidence did
not support a finding of a severe impairment lasting at least
twelve months, nor did it support any of the listed impairments
under the Act.

See Def.’s Mem. 9-10.

Pennell provided several explanations for the gap, or
perceivable decline, in medical treatment for his pre-accident
impairments, such as the June 2005 move of his treating
physician, Dr. Peppino Butera, to Italy.

Def.’s Mem. 4.

While

the Commissioner notes that Pennell did not seek treatment after
his doctor left the country until the time of the 2009 accident,
Pennell argues that this gap in medical treatment for his back
was explained by his desire to wean himself off medication in
2006 and 2007, Pl.’s Mem. 8-9, as well as his unemployed status
and his wife’s job change.

Id. at 11 (citing earlier testimony

that he had to find new insurance as well as a new doctor,
resulting in his delay in filing for disability right away).
While this Court certainly understands the delays created by
21

circumstances of unemployment, see Garcia v. Colvin, 741 F.3d
758, 762 (7th Cir. 2013) (“Persons who don't have health
insurance often delay in seeking medical care even for serious
conditions.”), Pennell did not clearly indicate the dates during
which he was uninsured, and testified only to the fact he was
unemployed around 2007 and 2008 and that he switched insurance
plans around 2009.

See Admin. R. 38-39.

Based on this

explanation, the Court looks to the medical evidence directly to
determine whether the hearing officer’s conclusions were
supported by the record.
Pennell’s medical records between 2004 until the 2009
accident reveal uncertainties as to the severity of the alleged
impairments.

For instance, the Commissioner acknowledged that

Pennell reported lower back pain during a visit to Highland
Medical Center in April 2006, but points out that this doctor’s
visit was to treat allergy, cold, and dizziness symptoms, as
well as to refill an anti-anxiety medication.
(citing Admin. R. 575).

Def.’s Mem. 4 n.4

During an October 2008 new patient

visit with Dr. Cynthia Cullinane, Pennell reported lower back
pain, but did not receive specific treatment for it.
R. 433-35.

See Admin.

During a subsequent check-up in December 2008,

Pennell did not report new complaints about his lower back pain,
although his symptom of “chronic intermittent low back pain

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[without] radiculopathy” was noted in his medical history, as
well as under the comprehensive system review.

Id. at 427.

To the extent that the hearing officer concluded that
Pennell did not seek treatment between 2004 and 2009, this Court
acknowledges that Pennell did, on a couple of occasions, note
his lower back pain during doctor’s visits.

But on the question

of whether this evidence was sufficient to support a conclusion
establishing a severe impairment, the Court agrees with the
hearing officer’s determination.

Taking into consideration

Pennell’s explanations, the desire to wean himself off of pain
medications and his search for a new doctor cannot fully explain
the lengthy period of time in which Pennell barely reported his
physical impairments for medical treatment.

Based on the full

record before this Court, and understanding that “remand is
appropriate only where the court determines that further
evidence is necessary to develop the facts of the case fully,
that such evidence is not cumulative, and that consideration of
it is essential to a fair hearing,” Evangelista v. Sec'y of
Health & Human Servs., 826 F.2d 136, 139 (1st Cir. 1987), this
Court upholds the hearing officer’s determinations that no
severe impairment was demonstrated.
C.

Establishing a Disability Onset Date is Inapplicable

A crucial step in determining eligibility for benefits is
establishing an onset date of disability, which is “the first
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day an individual is disabled as defined in the Act and the
regulations.”

SSR 83-20, 1983 WL 31249 (August 20, 1980).

Pennell argues that the hearing officer did not employ the
proper standard in making this determination, stating that a
medical expert should have been called to aid in establishing
the onset date.

Pl.’s Mem. 10; id. at 6 (“The presiding ALJ did

not employ the proper standard in determining the onset date of
Mr. Pennell’s disability.

Where present disability has been

established, the ALJ must then determine, by inference if
necessary, when the disability began.”).

In opposition, the

Commissioner points out that Pennell bases his argument upon an
assertion that he was disabled at the time of the hearing
officer’s decision – when in fact, no such conclusion was made
by the hearing officer.

Def.’s Mem. 14.

Because the hearing

officer did not find that Pennell was then presently disabled,
the Commissioner argues there was no need to bring in a medical
expert.

Id.

The Court agrees with the Commissioner.

The findings of fact and conclusions of law set out by the
hearing officer included: (1) the date last insured of December
31, 2007, (2) the period of time in which the claimant did not
engage in substantial gainful activity between April 2006 and
December 2007, (3) the medically determinable impairments
through the date last insured, (4) the determination that the
combination of impairments did not significantly limit work24

related activities for twelve consecutive months, and therefore
was not severe, and (5) the conclusion that the claimant was not
disabled from April 2006 through the date last insured.
Admin. R. 12, 15, 17.

See

No conclusions were drawn as to Pennell’s

then present state of disability, incorporating the impairments
sustained in the 2009 accident and, as a result, Social Security
Ruling 83-20 does not apply here.

See Scheck v. Barnhart, 357

F.3d 697, 701 (7th Cir. 2004) (“SSR 83-20 addresses the
situation in which [a hearing officer] makes a finding that an
individual is disabled as of an application date and the
question arises as to whether the disability arose at an earlier
time.

The ALJ did not find that the claimant was disabled, and

therefore, there was no need to find an onset date.” (internal
citations omitted)); see also Biron v. Astrue, No. 09-cv-40084FDS, 2010 WL 3221950, at *6 (D. Mass. Aug. 13, 2010) (Saylor,
J.) (“Several courts have held, however, that such a
determination concerning the onset of disability does not need
to be made unless an individual has been determined at some
point to have been disabled during the insured period.”).
This Court recognizes the severity of the injuries and
impairments suffered by Pennell as a result of his February 2009
motor vehicle accident, and notes that the hearing officer
considered the medical evidence following this incident in
determining whether pre-existing injuries or impairments could
25

be gleaned from the record.

Admin. R. at 13-14.

Nothing in the

medical records, however, indicates a link between the
degenerative spine impairments complained of prior to the date
last insured, and the traumatic injuries incurred in 2009.
Finding no need for the use of a medical expert to establish the
onset date of disability here, the Court upholds the hearing
officer’s determination denying disability benefits to the
claimant.
V.

CONCLUSION
For the foregoing reasons, the Court AFFIRMS the decision

of the hearing officer, GRANTS the Defendant’s Motion to Affirm
the Commissioner’s Decision, ECF No. 17, and DENIES the
Plaintiff’s Motion to Vacate the Decision of the Commissioner
and to Reverse or Remand, ECF No. 11.

SO ORDERED.

/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE

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