Duffy v. Colvin

Filing 24

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. Duffy's motion to reverse the decision of the Commissioner (Docket No. 13 ) is DENIED. The Commissioner's motion to affirm (Docket No. 17 ) is ALLOWED. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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JOHN DUFFY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.
______________________________

Civil Action
No. 16-10719-PBS

MEMORANDUM AND ORDER
August 7, 2017
SARIS, C.J.
Plaintiff John Duffy, who suffers from neck pain, moves to
reverse the final decision of the Commissioner of the Social
Security Administration denying his claim for disability
benefits. He argues that the Administrative Law Judge (“ALJ”)
failed to properly consider the limited range of motion in his
neck.
For the reasons set forth below, the Court DENIES Duffy’s
motion to reverse the Commissioner’s decision (Docket No. 13)
and ALLOWS the Commissioner’s motion to affirm (Docket No. 17).

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BACKGROUND
Duffy claims disability based on his history of neck and
lower back pain. The alleged date of onset is November 1, 2011.
He was forty-six years old at the alleged onset date.
I.

Treatment History
Duffy worked as a glazer until April 2009, when he was laid

off and began receiving unemployment benefits while looking for
work. R. 42. He stopped looking for work after November, 2011,
when he went to the emergency room for a neck injury. R. 48.
Duffy resides with friends in two different houses and has had
this living arrangement for about one year. R. 44. He was
previously living with his sister-in-law. R. 44. He also
receives food stamps. R. 44.
On March 8, 2012, Duffy saw primary care physician Mohammed
Khedr. R. 306. Duffy stated that he had not seen a doctor in
twenty years and complained of neck pain radiating down his left
arm. R. 306. Dr. Khedr prescribed medication and recommended an
MRI of the cervical spine. R. 308.
On April 3, 2012, Duffy saw neurosurgeon Leslie Stern for
neck pain of six months. R. 338. Dr. Stern noted marked
restriction of neck extension and recommended physical therapy.
R. 339.
At a June 7, 2012 follow-up appointment with Dr. Stern,
Duffy reported continuing neck pain and told Dr. Stern that he

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had been unable to attend physical therapy because he did not
have transportation. R. 337. Dr. Stern prescribed Lodine and
advised that he be re-evaluated if the pain progressed. R. 337.
On August 9, 2012, Duffy returned to Dr. Stern and reported
increased neck pain and more frequent paresthesia in the left
arm. R. 336. Dr. Stern found that Duffy’s MRI scan showed
degenerative disc disease primarily at C6-7 and also at C5-6. R.
336.
On September 11, 2012, Duffy underwent cervical fusion at
C6-C7 and C5-C6 by Dr. Stern. R. 292. Post-surgery follow up
indicated that Duffy had done well for two weeks after the
surgery but that after that time, his neck pain became worse. R.
333.
A cervical spine MRI administered on March 22, 2013
revealed mild edematous changes within the C6 and C7 vertebrae,
which were possibly related to recent surgery, and tiny
subligamentous herniation at the C6-C7 level. R. 342. No
cervical myelopathy was noted. R. 342.
On July 25, 2013, Duffy reported continuing neck pain and
stated that turning his head and extending his head caused
temporary paresthesia in the left arm. R. 329. Dr. Stern
prescribed Oxycodone and a hard collar. R. 19, 329.
On October 13, 2013, Duffy reported to Dr. Stern that the
hard collar helped with sleep and that he had less pain during

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the day. R. 357. But Duffy would not wear the hard collar if he
had to do a “fair amount” of walking because it bothered him. R.
357.
On May 8, 2014, Duffy began to see primary care physician
Raanan Gilboa. R. 383. On physical examination, Duffy ambulated
normally but had neck tenderness and pain with motion. R. 385.
Dr. Gilboa’s assessment was cervical disc disorder with
radiculopathy and low back pain. R. 386.
A cervical spine MRI administered on May 29, 2014 revealed
no significant change in multilevel central canal narrowing with
mild cord impingement at the C3-C4 and C6-C7 levels. R. 371. A
nerve conduction study on June 13, 2014 was indicative of carpal
tunnel syndrome in the wrist with the left worse than the right.
R. 391.
On July 7, 2014, Duffy saw neurologist Michael Gieger for
cervical pain in the neck with radiation down the left arm and
aggravation from neck extension. R. 19, 376. A physical
examination showed normal range of motion and muscle strength in
the upper and lower extremities. R. 378. However, flexion of the
cervical spine was moderately limited and extension was severely
limited due to pain. R. 378.
On August 28, 2014, Duffy saw neurologist Steven Hwang for
neck and left arm pain. R. 410. Dr. Hwang stated that Plaintiff
had full strength in all extremities except for mild bilateral

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triceps weakness. R. 410. Duffy had pain to palpation of the
neck. R. 410. Dr. Hwang recommended physical therapy and facet
blocks. R. 411.
II.

Non-Examining Physician Reports
The record contains administrative findings made by two

state agency non-examining medical physicians. R. 21. State
agency physician M. Douglass Poirier reviewed the medical
evidence of record and rendered a residual functional capacity
(“RFC”) assessment in September 2013. R. 76-84. Dr. Poirier
reviewed extensive medical evidence, including the neurological
examination reports from Dr. Stern and reports from the
September 2012 cervical spine surgery. R. 79. Dr. Poirier found
exertional limitations (only occasional pushing and pulling),
postural limitations (only occasional climbing, kneeling, and
crouching), and manipulative limitations (limited overhead
reach). R. 80–81.
State agency physician Jane Matthews reviewed Duffy’s
medical records in December 2013. R. 96-105. Dr. Matthews’s RFC
analysis included limitations similar to those found by Dr.
Poirier. R. 101–03, 112.
III. Hearing Before the ALJ
A.

Duffy’s Testimony

Duffy testified about his physical condition before the ALJ
on October 15, 2014. Plaintiff stated that he could sit for

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fifteen to twenty minutes at a time before he would need to
stand up. R. 48–49. He could stand for thirty minutes at a time
before he would need to lie down. R. 49. He could walk for ten
minutes before he would feel pain in his neck and back. R. 53.
Duffy also stated that he had problems using stairs, kneeling,
and reaching overhead, especially to the left. R. 54–55. Duffy
is left-hand dominant and had difficulty writing. R. 56. He did
not drive because of unpaid excise taxes and traveled by
walking, getting rides from friends, or taking the bus. R. 58.
When he went grocery shopping, he either got a ride to the store
or walked half a mile to the store, with a five or ten minutes
stop along the way. R. 58, 63. He was able to cook and clean,
prepare fifteen- to twenty-minute meals, and visit his grandson
once a week. R. 62-64.
B. Vocational Expert’s Testimony
The vocational expert testified that Duffy’s past relevant
work experience included work as a glazer, metal fabricator, and
material handler. R. 68. The ALJ asked the vocational expert to
assume a hypothetical person with the following limitations:
This person would be able to lift and carry 20 pounds
occasionally, 10 pounds on a frequent basis. Would be
able to stand and/or walk for six hours in an eight hour
work day. Sit for six hours in an eight hour work day.
This person would be limited to occasional pushing and
pulling with the left upper extremity. This person would
be able to climb stairs occasionally, would never be
able to climb ropes, ladders or scaffolds. Would
occasionally be able to stop, crouch, kneel and crawl.

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This person would only occasionally be able to reach
overhead with the bilateral upper extremities.
R. 69. The vocational expert concluded that such a person would
not be able to perform any of Duffy’s past work but could
perform other work, such as office helper, usher, or personal
attendant. R. 69–70
The ALJ then asked the vocational expert to assume a second
hypothetical person with the following limitations:
This person would be able to lift and carry 20 pounds
occasionally, ten pounds on a frequent basis. This
person would be able to stand and/or walk for four hours
out of an eight hour work day, sit for six hours out of
an eight hour work day. Would occasionally be able to
climb stairs and ramps, never ropes, ladders and
scaffolds. Would occasionally be able to balance, stoop,
crouch, kneel and crawl. This person would only
occasionally be able to reach overhead with the
bilateral upper extremities, and this person by the way
is a left handed individual. This person would
frequently be able to perform gross manipulation with
bilateral upper extremities. Would frequently be able to
perform fine manipulation with right upper extremity.
Would occasionally be able to perform fine manipulation
with the left upper extremity. This person would have to
avoid concentrated exposure to unprotected heights.
R. 70-71. The vocational expert concluded that such a person
would be able to perform the jobs of call out operator,
surveillance monitor, or cashier. R. 72.
IV.

ALJ’s Decision
The ALJ found that Duffy was not disabled. At step one of

his analysis, the ALJ found that Duffy had not engaged in
substantial gainful activity since November 1, 2011. R. 16. At

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step two, the ALJ found that Duffy had the following severe
impairments: cervical degenerative disc disease status-post
fusion, degenerative disc disease of the lumbar spine, and
moderate bilateral carpal tunnel syndrome. R. 16.
At step three, the ALJ found that Duffy’s impairments did
not meet or medically equal any listed impairment. R. 17. The
ALJ then found that Duffy retained the RFC:
to perform light work as defined in 20 CFR 404.1567(b)
and 416.967(b) except the claimant can lift twenty
pounds
occasionally
and
ten
pounds
frequently,
stand/walk for four hours and sit for six hours out of
an eight hour workday. The claimant can occasionally
climb stairs/ramps but never climb ladders/ropes/
scaffolds. He can occasionally balance, stoop, crouch,
kneel and crawl. He can occasionally reach overhead
bilaterally with upper extremities. The claimant is left
hand dominant and could frequently perform gross
manipulation with bilateral upper extremities and
frequently able to perform fine manipulation with the
right upper extremity. He can occasionally perform fine
manipulation with the left upper extremity and
occasionally push/pull with the left upper extremity.
Finally, he should avoid concentrated exposure to
unprotected heights.
R. 17. In making this RFC determination, the ALJ considered
Duffy’s treatment records, his statements about his activities
of daily living, and medical opinion evidence. R. 17–21. The ALJ
noted that “the medical record contains no treating or examining
source detailed opinions as to the claimant’s physical
functional abilities and limitations.” R. 21. The ALJ did
“consider[] the administrative findings of fact made by the
state agency non-examining medical physicians” and stated that

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“[w]hile . . . these opinions are from non-examining and nontreating expert sources, they are not inconsistent with the
medical evidence as a whole, and are accorded great evidentiary
weight.” R. 21.
At step four, the ALJ found that Duffy could not perform
any of his past relevant work as a glazer, metal fabricator,
material handler, or forklift driver. R. 21-22.
At step five, the ALJ found that Duffy was not disabled
because he could still perform other jobs existing in
significant numbers in the national economy. R. 22.
Specifically, the ALJ relied on the vocational expert’s
testimony that Plaintiff could be employed as a call out
operator, surveillance system monitor, or cashier. R. 22.
V.

Procedural History
Duffy filed applications for disability insurance benefits

and for supplementary security income on June 25, 2013, alleging
disability beginning November 1, 2011. R. 14, 189-90, 191-99.
The application was denied initially on September 26, 2013 and
on reconsideration on December 10, 2013. R. 118–21, 123-28.
Duffy requested a hearing before an ALJ and a hearing was held
on October 15, 2014. R. 129-30, 36-75. On December 18, 2014, the
ALJ issued the unfavorable decision described above. R. 14-27.

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On March 10, 2016, the Appeals Council denied Duffy’s
request for review of the ALJ’s decision, making the decision
final pursuant to 42 U.S.C. § 405(g). R. 1-4.
DISCUSSION
I.

Standard of Review
Judicial review of the Commissioner’s decision is available

pursuant to 42 U.S.C. § 405(g), which provides, in part, that:
Any individual, after any final decision of the
Commissioner made after a hearing to which he was a
party, irrespective of the amount in controversy, may
obtain a review of such decision by a civil action
commenced within sixty days after the mailing to him of
notice of such decision . . . The court shall have power
to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing
the decision of the Commissioner, with or without
remanding the cause for a rehearing. The findings of the
Commissioner as to any fact, if supported by substantial
evidence, shall be conclusive . . .
This Court’s authority to review the Commissioner’s decision “is
limited to determining whether the [Commissioner] deployed the
proper legal standards and found facts upon the proper quantum
of evidence.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
“The findings of the [Commissioner] as to any fact, if supported
by substantial evidence, shall be conclusive.” Richardson v.
Perales, 402 U.S. 389, 390 (1971) (quoting 42 U.S.C. § 405(g)).
Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. at 401. Courts must uphold the Commissioner’s

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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 & Human Servs.,
819 F.2d 1, 3 (1st Cir. 1987). “Questions of law are reviewed de
novo.” Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).
II.

Statutory and Regulatory Framework
The Commissioner has developed a five-step sequential

evaluation process to determine whether a person is disabled.
See 20 C.F.R. § 404.1520(a)(4). “Step one determines whether the
claimant is engaged in substantial gainful activity. If he [or
she] is, disability benefits are denied. If he [or she] is not,
the decision-maker proceeds to step two, which determines
whether the claimant has a medically severe impairment or
combination of impairments.” Bowen v. Yuckert, 482 U.S. 137,
140–41 (1987). The severity regulation requires the claimant to
show that he or she has an “‘impairment or combination of
impairments which significantly limits . . .’ ‘the abilities and
aptitudes necessary to do most jobs.’” Id. at 146 (quoting 20
C.F.R. §§ 404.1520(c), 404.1521(b)).
If the ALJ determines that the claimant has a severe
impairment, the third step requires a determination as to
whether that impairment or set of impairments “is equivalent to
one of a number of listed impairments that the Secretary
acknowledges are so severe as to preclude substantial gainful

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activity. If the impairment meets or equals one of the listed
impairments, the claimant is conclusively presumed to be
disabled.” Id. at 141–42.
If the impairment is not one that is conclusively presumed
to be disabling, the evaluation proceeds to the fourth step. At
the fourth step, the ALJ must determine whether the claimant is
prevented by the impairment from performing his previous
occupation. If the claimant is able to perform his previous
work, he is not disabled.
A finding that claimant cannot perform his previous work
requires that the ALJ continue to the fifth and final step. Id.
Throughout most of the five-step disability determination
process, the burden of proof is on the claimant. See id. at 146
n. 5. At the fifth step, however, the burden shifts to the
Commissioner, who must provide substantial evidence that the
claimant is able to perform work in the national economy. If the
claimant is not able to perform other available work, the
claimant is entitled to disability benefits. Id. at 141–42.
III. Analysis
A.

RFC Evaluation

Duffy argues that the ALJ erred by not incorporating the
limited range of motion in his neck into the RFC assessment. He
points to evidence of that limited range of motion in his
treatment records and argues that the ALJ erred by relying on

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the medical opinions of two state agency non-examining
physicians, which did not include such a limitation.
Duffy is correct that regulations require an ALJ to give
more weight to a medical opinion submitted by a treating
physician. 20 C.F.R. § 404.1527(d)(2). However, as the ALJ noted
in his opinion, this record contains no treating or examining
physician medical opinion as to Duffy’s physical functional
abilities and limitations. R. 21.
“As a lay person . . . the ALJ [i]s simply not qualified to
interpret raw medical data in functional terms.” Nguyen, 172
F.3d at 35. To render a determination of a claimant’s functional
capacity, “an expert’s RFC evaluation is ordinarily essential
unless the extent of functional loss, and its effect on job
performance, would be apparent even to a lay person.” MansoPizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 17 (1st
Cir. 1996) (quoting Santiago v. Sec’y of Health & Human Servs.,
944 F.2d 1, 7 (1st Cir. 1991)).
It would not be apparent to a lay person exactly what
specific functional limitations result from the evidence in the
treating records of Duffy’s limited range of motion in his neck.
Given the lack of any treating physician medical opinion that
translate Duffy’s limited neck range of motion into functional
limitations, it was not error for the ALJ to rely to the
opinions of the non-examining and non-treating sources upon

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finding that they were consistent with the medical record as a
whole.
State agency physician M. Douglass Poirier reviewed Duffy’s
medical evidence of record and rendered an RFC assessment in
September 2013. R. 76-84. He reviewed, among other records, the
neurological reports from Dr. Stern about Duffy’s cervical spine
surgery. R. 79, 88. He noted Duffy’s complaints of neck pain and
assigned exertional, postural, and manipulative limitations,
including limitations on overhead reach. R. 81. Dr. Stern,
however, did not assign any specific limitation pertaining to
range of motion in the neck. In addition, state agency physician
Jane Matthews reviewed Duffy’s medical records in October 2013.
R. 96-105. She found limitations similar to those found by Dr.
Poirier. R. 102. The ALJ was entitled to rely on these medical
opinions and as such, there was no error in the ALJ’s RFC
assessment.
In any event, the ALJ asked the vocational expert if there
were jobs that Duffy could perform given an additional
limitation of “only occasionally looking upwards and looking
downwards.” R. 73–74. The vocational expert stated that this
limitation would only affect the occupation of cashier because
the person would look down at the cash register. R. 73. But the
vocational expert testified that Duffy would be able to work in
the other two occupations even with the additional limitation

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because a call out operator “just uses a telephone” and a
surveillance systems monitor “would be walking -- looking
straight ahead.” R. 73. The ALJ determined that this testimony
was consistent with the information in the Dictionary of
Occupational Titles. R. 23.
B.

Pain Evaluation

Duffy argues that the ALJ erred in reaching negative
credibility finding as to Duffy’s statements concerning the
intensity, persistence, and limiting effects of his pain.
In evaluating subjective complaints of pain, the ALJ must
first determine whether there is a “clinically determinable
medical impairment that can reasonably be expected to produce
the pain alleged.” Avery v. Sec’y of Health and Human Serv., 797
F.2d 19, 21 (1st Cir. 1986). When evaluating the clinical
evidence, the ALJ must also consider “other evidence including
statements of the claimant or his doctor, consistent with the
medical findings.” Id. However, “[t]his does not mean that any
statements of subjective pain go into the weighing.” Id.
(emphasis in original). The ALJ, in resolving conflicts of
evidence, may determine that the claimant’s subjective
complaints concerning his condition “are not consistent with
objective medical findings of record.” Evangelista v. Sec’y of
Health and Human Serv., 826 F.2d 136, 141 (1st Cir. 1987).

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With this evidence in hand, the ALJ must “evaluate the
intensity and persistence of [the claimant’s] symptoms so that
[he or she] can determine how [the] symptoms limit [the
claimant’s] capacity for work.” 20 C.F.R. § 404.1529(c). The
regulations recognize that a person’s symptoms may be more
severe than the objective medical evidence suggests. See id.
§ 404.1529(c)(3). Therefore, the regulations provide six factors
(known as the Avery factors) that will be considered when a
claimant alleges pain.
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.
Claimant’s daily activities.
Avery, 797 F.2d at 29.
“While a claimant’s performance of household chores or the
like ought not to be equated to an ability to participate
effectively in the workforce, evidence of daily activities can
be used to support a negative credibility finding.” Teixeira v.
Astrue, 755 F. Supp. 2d 340, 347 (D. Mass. 2010) (citing Berrios
Lopez v. Sec’y of Health & Human Servs., 951 F.2d 427, 429 (1st
Cir. 1991)). The ALJ’s credibility determination “is entitled to
deference, especially when supported by specific findings.”
Frustaglia v. Sec’y of Health and Human Serv., 829 F.2d 192, 195

16

(1st Cir. 1987). However, an ALJ who does not believe a
claimant’s testimony regarding his pain, “must make specific
findings as to the relevant evidence he considered in
determining to disbelieve the [claimant].” Da Rosa v. Sec’y of
Health and Human Serv., 803 F.2d 24, 26 (1st Cir. 1986); see
also Social Security Ruling (SSR) 96–7p, Evaluation of Symptoms
in Disability Claims: Assessing the Credibility of an
Individual's Statements, 61 Fed. Reg. 34,483, 34,485–86 (1996)
(requiring that “[w]hen evaluating the credibility of an
individual’s statements, the adjudicator must . . . give
specific reasons for the weight given to the individual’s
statements”; and “the reasons for the credibility finding must
be grounded in the evidence and articulated in the determination
or decision.”).
Although the ALJ focused on Duffy’s daily activities in his
explanation of his decision, he adequately discussed the
preceding five factors. For example, for the first factor, the
ALJ discussed Duffy’s medical history regarding his cervical
spine, lumbar spine, and carpal tunnel syndrome. R. 18-20. The
ALJ found that “[o]verall, the claimant’s allegations of severe
functional limitations caused by lower back pain, neck pain and
bilateral carpal tunnel syndrome are not entirely supported by
objective medical findings.” R. 20. The ALJ addressed specific
medical findings, including the fact that although Duffy had

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cervical spine problems and had undergone surgical intervention,
a post-surgery radiological scan indicated anatomic alignment
and no cervical myelopathy was noted. R. 20.
For the second factor, the ALJ discussed, for example, Dr.
Gieger’s July 2014 report that noted that neck extension was an
aggravating factor for Duffy’s condition. R. 19.
For the third factor, the ALJ discussed Duffy’s
prescriptions for Lodine and Oxycodone and the periods of time
in which Duffy did not take any medication, despite complaints
of allegedly disabling symptoms. R. 18-19. Notably, the ALJ
noted that Dr. Geiger reported in July 2014 that Duffy had not
been prescribed pain medications. R. 21.
For the fourth factor, the ALJ discussed the hard collar
and physical therapy. R. 19-20. The ALJ noted that Duffy stated
that his hard collar improved his sleep and resulted in less
pain during the day. R. 20. However, Duffy was bothered by the
collar when doing a “fair” amount of walking. R. 20.
Furthermore, Dr. Hwang suggested a course of physical therapy
and facet blocks for lower back pain. R. 21.
For the fifth factor, the ALJ discussed Duffy’s report that
he could sit for fifteen to twenty minutes at a time and that
after standing for half an hour, he would need to lie down. R.
18. In addition, the ALJ noted Duffy’s problems using the

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stairs, kneeling, and reaching overhead, especially on the left
side. R. 18.
The ALJ concluded that Duffy’s daily activities did not
support the intensity, persistence, and limiting effects of
these symptoms. R. 20. Duffy’s ability to walk half a mile to
the grocery store, prepare meals while standing, stand while
cooking, use public transportation, clean, and visit his
grandson once a week supported a finding that he is capable of a
range of light work. R. 21. Such findings by an ALJ may support
a negative credibility finding. Teixeira, 755 F. Supp. 2d at
347. The ALJ extensively discussed Duffy’s subjective symptoms,
and the ALJ’s credibility findings were supported by substantial
evidence. There was no error.
ORDER
Duffy’s motion to reverse the decision of the Commissioner
(Docket No. 13) is DENIED. The Commissioner’s motion to affirm
(Docket No. 17) is ALLOWED.

/s/ PATTI B. SARIS________________
Patti B. Saris
Chief United States District Judge

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