Foxworth v. Colvin

Filing 25

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERIn accordance with the foregoing, plaintiffs motion to reverse or remand the decision of the Commissioner (Docket No. 16) is DENIED and defendants motion for an order affirming the decision of the Commissioner (Docket No. 22) is ALLOWED. So Ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts

DOLLY FOXWORTH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Defendant.

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Civil Action No.
16-10243-NMG

MEMORANDUM & ORDER
GORTON, J.
Plaintiff Dolly Foxworth (“Foxworth” or “plaintiff”) seeks
judicial review of the denial of her application for disability
benefits by defendant, Carolyn W. Colvin (“the Commissioner” or
“defendant”), in her official capacity as Commissioner of the
Social Security Administration (“SSA”).

Before the Court are

plaintiff’s motion to reverse or remand the decision of the
Commissioner and defendant’s motion for an order affirming her
decision.

For the reasons that follow, the motion to reverse or

remand will be denied and the motion to affirm will be allowed.
I.

Background
A.

Employment History and Alleged Disability

Foxworth was born in 1963 and has a seventh grade
education.

She states that she experienced physical, sexual and

emotional abuse from certain family members and acquaintances
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during her childhood.

She also purportedly suffered physical

and emotional abuse from two former spouses.
For the past 15 years, Foxworth has worked in a variety of
jobs.

From 1997 to 2001, she was a cashier, salesperson and

shelf stocker at a Kmart.

In the early 2000s, she worked at a

metal finishing company dying metal airplane parts.
to 2005, she worked at a cat shelter.

From 2002

In 2010 and 2011, she

worked as a counter at Reynolds Food Packaging and a paper
sorter at a Christmas Tree Shop.
unemployed.

Since 2011, Foxworth has been

To support herself, she relies on state disability

payments, food stamps and Section Eight housing subsidies.
The record shows that, since 2000, Foxworth has sought
treatment for mental and physical health issues from numerous
psychologists, doctors, therapists and other professionals.

She

has been diagnosed with chronic obstructive pulmonary disease
(“COPD”), sleep apnea, Hepatitis C, morbid obesity, major
depressive disorder, bi-polar disorder, anxiety, affective
disorder, a learning disability and post-traumatic stress
disorder (“PTSD”).
B.

Procedural Background

In 2012, Foxworth applied for supplemental security income
under Title XVI of the Social Security Act (“the Act”) and for
disability insurance benefits under Title II of the Act.
Plaintiff alleges that she became disabled in March, 2011
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because of the numerous ailments described above.

In April,

2013, the SSA denied Foxworth’s claim and the following
September her claim was again denied after reconsideration.
In October, 2013, Foxworth filed a request for a review
hearing which was held in July, 2014, before Administrative Law
Judge Paul W. Goodale (“the ALJ”).

Foxworth was represented by

counsel and the testifying witnesses were Foxworth and an
impartial third party, vocational expert James Scorzelli Ph.D.
(“Dr. Scorzelli" or “vocational expert”).

The ALJ found that

Foxworth was not disabled under § 1614(a)(3)(A) of the Act.
In October, 2014, Foxworth filed a timely appeal of the
ALJ’s decision to the Appeals Council.

In December, 2015, the

Appeals Council denied her request for review.

In February,

2016, Foxworth filed her complaint in this Court.
C.

The ALJ’s Decision

The ALJ applied the five-step test promulgated by the SSA
to determine if a claimant is disabled and may obtained benefits
under § 1602 of the Act. 42 U.S.C. § 1381a.

The test evaluates

1) whether the claimant is engaged in a “substantial gainful
activity”, 2) whether she has a severe impairment, 3) if there
is a severe impairment, whether it is equivalent to impairments
identified in the regulation, 4) whether the claimant’s residual
functional capacity (“RFC”) is adequate for her previous work
and, if not, 5) whether there are other jobs in the economy to
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which the claimant could adjust. 20 C.F.R. § 404.1520(a); see
also Deblois v. Sec’y of Health & Human Servs., 686 F.2d 76, 79
(1st Cir. 1982).
In some circumstances, the guidelines in 20 C.F.R. Part
404, Subpart P, Appendix 2, § 200.00(a), commonly referred to as
“the Grid”, mandate a specific conclusion with respect to
whether a claimant is disabled.

The Grid takes into account

age, education level, prior work experience and whether an
individual has an RFC of “sedentary”, “light”, “medium” or
“heavy” work and then determines, based on those factors,
whether the individual is disabled.
Under the five-step analysis, the ALJ found that Foxworth
was not engaged in substantial gainful activity and that she had
several severe impairments but they were not equivalent to those
identified in the Social Security Regulations.

He further

concluded that she had an RFC of light work with significant
limitations, including an inability to stand for more than four
hours a day.

He also determined that she has numerous

nonexertional limitations, including that she may work only at a
low stress job and have only occasional interactions with
others.
In his decision, the ALJ observed that the Grid is a tool
to help simplify the disability analysis for the adjudicator.
He stated that if an applicant is unable to perform the work
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considered appropriate for her RFC due to nonexertional
limitations, the Grid does not apply.

Because nonexertional

limitations prevented Foxworth from performing many light work
jobs, the ALJ determined that the Grid did not apply to her.

To

determine if there were any light work jobs to which she could
adjust, he sought the testimony of a vocational expert, Dr.
Scorzelli.
Dr. Scorzelli concluded that when her physical limits alone
are considered, Foxworth can perform the light work job of
cashier.

When he took her nonexertional limits into account,

however, Dr. Scorzelli determined that Foxworth cannot work as a
cashier because it involves too many interactions with people
but that she could adjust to three other jobs: 1) a call-out
operator, 2) an addresser and 3) a surveillance system monitor.
These three jobs all fall within the sedentary RFC
classification.

Because Dr. Scorzelli’s testimony establishes

that Foxworth can successfully adjust to jobs available in the
economy, the ALJ found that she was not disabled.
Finally, the ALJ concluded that Foxworth is not entitled to
Title II benefits because her date last insured for the purposes
of her Title II application was March 11, 2011, and before that
date, her claims for Title II benefits were denied in a final
administrative decision.
II.

Legal Analysis
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A. Legal Standard
The Act gives United States District Courts (“District
Courts”) the power to affirm, modify or reverse an ALJ’s
decision or to remand the case for a rehearing. 42 U.S.C.
§ 405(g).

A District Court’s review of an ALJ decision is not

de novo, however. See Lizotte v. Sec’y of Health & Human Servs.,
654 F.2d 127, 128 (1st Cir. 1981).

The Act provides that the

findings of the Commissioner are conclusive if 1) they are
“supported by substantial evidence” and 2) the Commissioner has
applied the correct legal standard. See 42 U.S.C. § 405(g);
Seavey v. Barhart, 276 F.3d 1, 9 (1st Cir. 2001).

If those

criteria are satisfied, the Court must uphold the Commissioner’s
decision even if the record could justify a different
conclusion. Evangelista v. Sec’y of Health & Human Servs., 826
F.2d 136, 144 (1st Cir. 1987).

Substantial evidence means

evidence “reasonably sufficient” to support the ALJ’s
conclusion. See Doyle v. Paul Revere Life Ins. Co., 144 F.3d
181, 184 (1st Cir. 1998).
B.

Application

Foxworth submits that when the ALJ denied her benefits he
1) improperly found that she had a RFC of light work, 2) failed
to revise the RFC of light work to sedentary after Dr.
Scorzelli’s testimony, 3) ignored a medical assessment and

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4) wrongly calculated her date last insured for her Title II
claim.
1.

The ALJ’s Initial RFC Determination

Foxworth claims that, because testimony from Dr. Scorzelli
showed that only sedentary jobs are suitable for her, the ALJ’s
determination that her RFC is light work was in error.

The

Commissioner responds that the ALJ’s decision was correct
because he properly applied the law in his disability
determination and that plaintiff’s objections are based on a
misunderstanding of the regulatory framework.
The Commissioner’s contention that the ALJ correctly
determined that Foxworth’s RFC is light work is sound.

The SSA

regulations define “light work” to include lifting up to 20
pounds on occasion, frequently lifting 10 pounds, a good deal of
walking or standing and some pushing or pulling of leg and arm
controls. 20 C.F.R. § 416.967(b).

There is substantial evidence

in the record to buttress the ALJ’s finding of an RFC of light
work and the ALJ correctly applied the legal standard.
First, substantial evidence exists to support the ALJ’s
conclusion that Foxworth’s RFC is light work with significant
limitations.

Testimony and documentation indicate that Foxworth

is able to complete household tasks on her own, visit with
family, go grocery shopping and attend appointments.

The record

also indicates that her condition improves when she follows
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prescribed treatment regimens.

The opinions of medical doctors

and psychologists Drs. Julie Cohen, Ronald Nappi, Mark Colb and
Rudolph Titanji also support the ALJ’s decision.
Second, as addressed above, the ALJ correctly applied the
five-step test for determining whether a claimant is disabled.
In applying the test, he considered relevant evidence contained
in the record and did not substitute his judgment for the
uncontroverted medical evidence.

Accordingly, because the ALJ

relied on substantial evidence and applied the correct legal
standard, his decision must be upheld. Rodriguez Pagan v. Sec’y
of Health & Human Servs., 819 F.2d 1, 2 (1st Cir. 1987).
2.

The ALJ’s Refusal to Revise Foxworth’s RFC to
Sedentary Work After Dr. Scorzelli’s Testimony

Foxworth asserts that the ALJ should have revised her RFC
based on Dr. Scorzelli’s determination that she could only
perform sedentary jobs.

If her RFC were changed from light to

sedentary work, she would be considered disabled under the Grid.
The Commissioner responds that the Grid does not apply because
the RFC is determined before the vocational expert’s analysis
and a vocational expert’s testimony regarding nonexertional
factors does not change the RFC.
This Court agrees with defendant’s contention that the RFC
is determined prior to a vocational expert’s testimony
concerning nonexertional limitations and does not change because
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of it.

The First Circuit Court of Appeals (“First Circuit”) has

not directly addressed whether the RFC should change based on a
vocational expert’s analysis.

Other United States Courts of

Appeals that have addressed the matter have disagreed.

The

Ninth Circuit Court of Appeals has held that if a vocational
expert fails to identify a suitable job at a specified RFC, the
RFC must be adjusted based on the expert’s testimony and the
Grid must be applied based on the adjusted RFC. See Diastasio v.
Shalala, 47 F.3d 348, 350 (9th Cir. 1995); see also Cooper v.
Sullivan, 880 F.2d 1152, 1157 (9th Cir. 1989).

Conversely, the

Sixth Circuit Court of Appeals (“Sixth Circuit”) has concluded
that “the [vocational expert’s] testimony depends upon the RFC
and not the other way around.” Anderson v. Comm’r of Soc. Sec.,
406 Fed. Appx. 32, 36 (6th Cir. 2010).

Accordingly, the Sixth

Circuit does not retroactively change the RFC based on a
vocational expert’s testimony. Id.
This Court finds that the Sixth Circuit approach is
appropriate.

First Circuit decisions are consistent with an

understanding of the Grid as a tool of expediency utilized to
reduce the need for testimony from a vocational expert when a
claimant’s traits align neatly with the Grid. See Sherwin v.
Sec’y of Health & Human Servs., 685 F.2d 1, 5 (1st Cir. 1982)
(finding that the Grid is a simplification of the labor market
that provides information about available jobs based on a
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claimant’s characteristics); see also Ortiz v. Sec’y of Health &
Human Servs., 890 F.2d 520, 524 (1st Cir. 1989) (holding that the
Grid should be used instead of vocational expert testimony when
a claimant’s characteristics meet the Grid criteria).
Under the First Circuit approach, if a claimant is on the
lower end of an RFC and it is unclear whether the Grid will
apply, a vocational expert is brought in to clarify what jobs,
if any, are available in the general economy for the claimant.
Ortiz, 890 F.2d at 524-25.

Furthermore, the Grid:

assumes merely that enough jobs are available for [nondisabled] claimants that, in all likelihood, there will be at
least some jobs that each such claimant can perform.
Sherwin, 685 F.2d at 5.

When the Grid does not apply,

vocational expert testimony satisfies the purposes of the Grid,
as well as the ultimate goal of the five-step test promulgated
by the SSA, by determining whether or not significant jobs exist
in the general economy for a claimant. See 20 C.F.R. §
404.1520(a)(4)(v).

Accordingly, because this Court concludes

that the RFC does not change based on a vocational expert’s
testimony, there was no error in the ALJ’s refusal to revise the
RFC after Dr. Scorzelli’s testimony.
3.

Dr. Robert Mullaly’s Findings

Foxworth maintains that the ALJ erred by ignoring the
medical assessment of psychiatrist Dr. Robert Mullaly.
Specifically, she submits that the ALJ ignored Dr. Mullaly’s
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opinion that she had a global assessment of functioning (“GAF”)
score of 50.

Plaintiff contends this GAF score of 50, along

with Dr. Mullaly’s finding that there is a low probability of
Foxworth improving her ability to function, renders her unable
to hold almost any job.

According to Foxworth, the ALJ did not

consider this evidence and, if he had, he should have determined
that she was unable to perform jobs available in the economy and
thus disabled.
Although the ALJ never specifically mentioned Dr. Mullaly,
he explicitly stated that he reviewed and considered Foxworth’s
Massachusetts state disability application contained in
Exhibit B14F.

The first section of Exhibit B14F is the report

produced by Dr. Mullaly, so it is logical to conclude that the
ALJ considered that report.

The ALJ noted that he gave little

weight to that section as many of its findings were contradicted
by Foxworth’s own testimony at the hearing.

Given that Dr.

Mullaly’s opinion was a fairly old one, from 2000, and that
subsequent evidence on the record showed an increase in GAF and
other capabilities, the ALJ’s discounting of Dr. Mullaly’s
evidence was reasonable, sufficient and does not warrant a
remand for consideration.
4. Calculation of Foxworth’s Date Last Insured
Foxworth is correct in noting the ALJ erred in calculating
her Date Last Insured (“DLI”) for Title II benefits.
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It appears

that the ALJ referenced an earlier application for disability
benefits when determining a DLI of March 31, 2011, and did not
report the DLI listed on a more recent application which was
December 31, 2013.

Regardless, the SSA determines disability in

an identical fashion for Title II and Title XVI, so the finding
that Foxworth is not disabled under Title XVI necessitates the
same finding under Title II, making this error harmless. See 20
C.F.R. § 404.1520(a)(3); see also Seavey v. Barhart, 276 F.3d 1,
5 (1st Cir. 2001).

ORDER
In accordance with the foregoing, plaintiff’s motion to
reverse or remand the decision of the Commissioner (Docket No.
16) is DENIED and defendant’s motion for an order affirming the
decision of the Commissioner (Docket No. 22) is ALLOWED.

So ordered.

/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated April 19, 2017

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