Drew v. Colvin

Filing 25

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER. In accordance with the foregoing, 1) Petitioner's Motion for Order Reversing the Decision of the Commissioner (Docket No. 17 ) is DENIED. 2) Respondent's Motion for Order Affirming the Decision of the Commissioner (Docket No. 22 ) is AFFIRMED.So Ordered. (Franklin, Yvonne)

United States District Court
District of Massachusetts

Pamela Jane Drew,
Plaintiff,
v.
Carolyn W. Colvin,
Defendant.

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Civil Action No.
16-cv-12122-NMG

MEMORANDUM & ORDER
GORTON, J.
Pamela Jane Drew (“Drew” or “petitioner”) filed this action
to appeal the denial of her application for disability benefits
against Carolyn W. Colvin, Commissioner of the Social Security
Administration (“the Commissioner” or “respondent”).

Petitioner

claims she was wrongfully denied disability insurance benefits
because the Administrative Law Judge (“ALJ”) improperly
discounted the medical opinion of her attending physician and
otherwise made findings not supported by substantial evidence.
Pending before the Court are petitioner’s motion for an order
reversing the Commissioner’s decision and respondent’s motion
for an order affirming the Commissioner’s decision.

For the

reasons that follow, petitioner’s motion to reverse will be

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denied and the Commissioner’s motion to affirm will be allowed.
I.

Background
A.

Employment History and Alleged Disability

Drew was 50 years old on the alleged “onset date” of
October 30, 2013.

She was previously employed as a Certified

Nursing Assistant, hospital coordinator and home health aide.
The nature of the claimed disability arises from back pain, leg
pain and associated weakness with significant pain in the
tailbone area.
Beginning in May, 2013, petitioner began treatment with Dr.
Ian Colon, M.D., who noted decreased lumbar motion and
sacroiliac (“SI”) joint tenderness.

He prescribed the

painkiller Percocet which had a seemingly positive effect.

At

subsequent examinations, petitioner’s pain had worsened and Dr.
Colon prescribed three different replacement painkillers:
Celebrex, Gabapentin and MS Contin, a longer lasting opioid to
help petitioner manage her pain levels.
In October, 2013, petitioner began seeing Dr. Allison
Gorski, M.D., for her lumbar spine pain.

Dr. Gorski placed

petitioner on a mix of opioid and non-opioid painkillers
including Oxycodone, OxyContin, Gabapentin, Celebrex, Methadone
and Topamax.

Dr. Gorski frequently questioned petitioner about

her level of pain, noting that the answers were usually between
a seven and ten on a pain scale.

With respect to petitioner’s

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work capacity, Dr. Gorski opined that petitioner could only sit
or stand for one hour at a time during a standard eight-hour
work day.

She found that petitioner had to change positions

every 15 minutes while sitting, be allowed to take 10-15 minute
unscheduled breaks and constantly be allowed to change from
sitting, standing or walking.

Dr. Gorski also added that

petitioner could not lift more than ten pounds and would likely
be absent from work four days per month.
Petitioner consulted with two other doctors during the
period after the alleged “onset date”.

In April, 2014, she was

treated by James Rainville, M.D., specifically for the radiating
pain in her back.

Dr. Rainville noted that petitioner was very

pain-focused during most of the examination and opined that her
pain could be originating from her central nervous system.

He

suggested water therapy using petitioner’s pool as a
supplementary form of relief.

In June, 2014, petitioner

underwent a psychological evaluation by Sol Pittenger, Psy.D.
Dr. Pittenger found petitioner’s mood to be irritable, low and
sad and ultimately decided petitioner’s psychological issues to
be opioid related.

Her primary source of relief had come from

painkiller prescriptions and she later discontinued the water
therapy despite initial positive effects.
Drew asserts that, due to her health problems as of October
30, 2013, the “onset date”, she was unable to be gainfully
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employed for the following four years through October 30, 2017,
the date last insured.
B.

Procedural Background

On November 25, 2013, petitioner applied for Title II
disability benefits under the Social Security Act (“the Act”).
She states she has been disabled and unable to work since the
“onset date”, October 30, 2013.

On March 5, 2014, her claim was

denied and on June 26, 2014, her claim was denied after
reconsideration.
Petitioner filed a timely request for a hearing and a
hearing was held on August 18, 2015, before ALJ Paul S. Carter.
Petitioner was represented by counsel.

Evidence from petitioner

was considered alongside the testimony of an impartial
vocational expert (“the VE”).

The ALJ found that Drew was not

disabled under sections 216(i) & 223(d) of the Act.

Petitioner

filed a request for review in October, 2015, claiming she was
still absolutely disabled.

In August, 2016, petitioner’s

request for reconsideration was also denied.
C.

Legal Standard

To obtain benefits under § 1602 of the Act, 42 U.S.C.
§ 1381a, an individual must demonstrate that he is unable
to engage in 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.
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42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A).
The impairment must be of such severity that the claimant
is not only unable to continue his previous work but also unable
to engage in other kinds of substantial work that exist in the
national economy fitting his age, education and work experience.
42 U.S.C. § 423(d)(2)(A).
To determine whether an individual is disabled, the ALJ
determines whether
1) the claimant is engaged in “substantial gainful
activity”, 2) the claimant has a severe physical or
mental impairment, 3) that impairment is equivalent to
an impairment enumerated in the regulations, 4) the
claimant’s RFC meets the requirements of his previous
work and 5) there are jobs that would be appropriate
for the claimant given her RFC, age, education and
work experience.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v).
Furthermore, the ALJ must determine whether claimant met
the insured status requirements of 42 U.S.C. §§ 416(i) and 423.
Drew’s earning records showed that she acquired sufficient
quarters of coverage to remain insured through December 31,
2017.

Therefore, Drew is required to establish disability on or

before the date last insured in order to be entitled to a period
of disability and to disability insurance benefits. See 42
U.S.C. §§ 423(a)(A) & (c)(1).

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D.

The ALJ’s Decision

The ALJ found that Drew was not disabled under the Act.

He

considered evidence submitted by petitioner, testimony at
petitioner’s hearing, testimony from medical experts and the
opinions of the VE to make his decision.
At step one, the ALJ found that Drew had not engaged in
substantial gainful activity since October 30, 2013.

Despite

the fact that petitioner worked for profit into early 2014, her
hours worked and salary realized did not rise to the level of
substantial gainful employment.

At step two, the ALJ found that

petitioner had the following severe impairments: (1) myofascial
pain syndrome, (2) anxiety and (3) depression.

At step three,

the ALJ found that petitioner did not have an impairment or
combination of impairments that meets or medically equals the
severity of the listed impairments in 20 C.F.R. §§ 404.1520(d),
404.1525 and 404.1526.

If petitioner’s impairments had met or

exceeded that standard, she would be considered disabled but
because her impairments did not meet the severity needed to
trigger that provision, the ALJ continued to step four.
In his analysis of the record, the ALJ found that
petitioner had the Residual Functional Capacity (“RFC”) after
the onset of her impairment to undertake light work as defined
by 20 C.F.R. § 404.1567(b) with the caveat that she must be
allowed frequently to change posture.
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In making that finding,

considerable weight was given to the opinion of state agency
examiners Dr. M. Gopal and Dr. William Goulding.

When examining

medical reports of the petitioner, Dr. Gopal found that she
could perform light work for six hours of an eight-hour work
day.

Upon reconsideration Dr. Goulding further limited

petitioner to light work for four hours in an eight-hour work
day, with the need to change positions every hour.

Those

opinions were in conflict with the severe prognosis of the
treating physician.
The ALJ gave more weight to the State medical examiners and
noted inconsistencies between reported pain levels and the
amount of activity undertaken by petitioner.

A further

inconsistency was observed between representations of severe
pain and observations of acute focus and ability to work.
Moreover, the ALJ noted instances where petitioner stopped water
therapy despite its reported positive effects and demanded more
opioid painkillers despite the advice of her doctors, going so
far as to change doctors when one would not prescribe stronger
opioids.

The ALJ also discerned that many of Dr. Gorski’s

claims regarding petitioner’s work ability were given without
adequate explanation.
At step four, the ALJ found that petitioner’s RFC would not
allow her to perform any past relevant work.

According to the

testimony of the VE, all of petitioner’s past relevant work
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required a level of exertion or specialization beyond
petitioner’s stated RFC.

At step five, however, based on

testimony of the VE, the ALJ found that there are a significant
number of jobs in the national economy that petitioner can
perform.

Due to that finding, the petitioner was classified by

the ALJ as “not disabled”.
Petitioner filed a complaint with this Court in October,
2016.

Pending before the Court are petitioner’s motion for an

order reversing the decision of the Commissioner and defendant’s
motion for an order affirming the decision of the Commissioner.
II.

Social Security Disability Insurance Appeal
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,

however, de novo. 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
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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

Petitioner claims the ALJ erred in denying her claim
because: 1) he improperly discounted the opinion of Dr. Gorski
and 2) the resulting RFC is not supported by substantial
evidence.
The Commissioner responds that the ALJ properly evaluated
the opinion evidence when assessing petitioner’s RFC and that
the ALJ properly considered the effects of petitioner’s pain on
her ability to maintain attention and concentration.
1.

Weight of Professional Opinion Evidence

Petitioner claims that the weight given to the state
examiners’ findings was inappropriate and that the assignment of
lesser weight to Dr. Gorski’s opinions resulted in an erroneous
assignment of her RFC.

Respondent claims the ALJ properly

weighed the testimony of all medical examiners under the
standard set forth by the regulations.

Social Security Ruling

96-8p provides guidance on how to weigh various medical opinions

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in an RFC finding, stating,
If the RFC assessment conflicts with an opinion from a
medical source, the adjudicator must explain why the
opinion was not adopted.
In weighing evidence to determine a RFC, an ALJ may discount the
attending physician’s testimony so long as an explanation is
given within the decision. See Tetreault v. Astrue, 865
F.Supp.2d 116, 125 (D. Mass. 2012).

In this case, the ALJ

provided such an explanation, illustrating a pattern of
inconsistency between Dr. Gorski’s prognosis and actions taken
by petitioner.
Drew stresses that the rejection of Dr. Gorski’s opinion is
improper, maintaining that because the doctor had seen
petitioner most consistently and frequently, her opinion should
be accorded more weight than second-hand analysis from agency
consultants.

The ALJ explained that Dr. Gorski’s opinions,

despite outlining severe physical impediments to work, offer no
relevant explanation as to why petitioner’s symptoms are so
debilitating.

Because the ALJ stated his reasons for according

less weight to Dr. Gorski’s opinion, the decision was not
improper. See King v. Colvin, 128 F.Supp.3d 421, 436 (D. Mass.
2015).
In light of representations made by the petitioner with
respect to her daily life, the ALJ found a palpable difference
between Dr. Gorski’s opinion of petitioner’s ability to work and
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what petitioner actually was doing at the time of the RFC
report.

Specifically, the ALJ pointed to petitioner performing

a full range of daily activities such as brief working spells,
playing computer games and watching television with no evidence
of attention deficit or labor hardship.

Those particularized

examples show a direct contrast between reported levels of
activity by the petitioner and Dr. Gorski’s opinion.

The ALJ

properly explained why the opinion was inadequate. See Bourinot
v. Colvin, 95 F.Supp.3d 161, 177 (D. Mass. 2015).
Reliance on the opinion of Dr. Gopal and, to a lesser
extent, Dr. Goulding, was also appropriate.

Dr. Gopal’s opinion

made use of legitimate evidence on record, such as medical
records from the various doctors who attended to petitioner and
MRI scans of the affected area.

The analysis of Dr. Goulding’s

second opinion and the modification of it by the ALJ to include
a provision allowing for position changes are evidence of
specific analysis of the facts and particularized consideration
of petitioner’s RFC. Cf. 128 F.Supp.3d at 436 (in which a
treating psychiatrist’s opinion regarding claimant’s PTSD was
discounted due to evidentiary inconsistency).
Petitioner claims that due to inappropriate weighing of
medical testimony, the RFC to do light work is erroneous and not
supported by substantial evidence.

The ALJ’s explanation

detailing inconsistencies in the evidentiary record and his
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concern for the petitioner’s unwillingness to commence
recommended therapy, however, constitute substantial evidence to
the contrary under 42 U.S.C. §405(g).
2.

Substantial Evidence Supporting the RFC

Petitioner claims that an erroneous reliance on state
medical examiners tainted the RFC and that therefore there is no
substantial evidence supporting the ALJ’s finding that
petitioner can do light work as defined in 20 C.F.R. §
404.1567(b).

Respondent rejoins that the ALJ properly and

consistently analyzed the evidentiary record when handing down
his decision.
On examination of the record, every decision of the ALJ in
weighing the evidence was supported by an adequate explanation.
When analyzing claimant’s credibility, the ALJ outlined
inconsistencies between pain reporting levels and activities
petitioner undertook at work and at home.
For this Court to grant relief, petitioner must show that
the Commissioner improperly ignored evidence, offered less than
a satisfactory explanation for the use of evidence or applied an
incorrect legal standard. Derbes v. Colvin, 270 F.Supp.3d 520,
523 (D. Mass 2017).

Petitioner’s motion for reconsideration, by

contrast, simply restates facts probative of a finding in favor
of the petitioner.

The ALJ’s decision properly complied with

the provisions of 42 U.S.C. § 405(g).
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The District Court will

therefore uphold his ruling even if the facts on their own could
lead to a different result. 826 F.2d at 144.

The ALJ’s decision

was supported by substantial evidence and applied the proper
legal standard.

Accordingly, his decision will be upheld.
ORDER

In accordance with the foregoing,
1) Petitioner’s Motion for Order Reversing the Decision of
the Commissioner (Docket No. 17) is DENIED.
2) Respondent’s Motion for Order Affirming the Decision of
the Commissioner (Docket No. 22) is AFFIRMED.

So ordered.
/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge

Dated February 14, 2018

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