Anderson v. Social Security Administration

Filing 31

Judge Nathaniel M. Gorton: MEMORANDUM AND ORDER entered. For the foregoing reasons,1) plaintiffs motion to reverse or remand the Commissioners decision (Docket No. 24) is ALLOWED, in part, and DENIED, in part;2) defendants motion to affirm the Commissioners decision (Docket No. 26) is ALLOWED, in part, and DENIED, in part; and3) the case is REMANDED for further consideration consistent with this opinion.So ordered. (Vieira, Leonardo)

United States District Court
District of Massachusetts
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ERIK ANDERSON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Defendant.

Civil Action No.
17-11171-NMG

MEMORANDUM & ORDER
GORTON, J.
Erik Anderson (“Anderson” or “plaintiff”) seeks judicial
review of the partial denial of his application for disability
insurance benefits by Nancy A. Berryhill (“the Commissioner” or
“defendant”), the acting Commissioner of the Social Security
Administration (“the SSA”).

Anderson asserts that the decision of

the Administrative Law Judge (“ALJ”) was erroneous and that he was
improperly denied benefits as a result.
Pending before this Court are plaintiff’s motion to reverse
or remand the Commissioner’s decision (Docket No. 24) and
defendant’s motion to affirm the Commissioner’s decision (Docket
No. 26).

For the following reasons, those motions will be

allowed, in part, and denied, in part, and the case will be
remanded to the ALJ for further proceedings consistent with this
opinion.

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I.

Background
A.

Employment History and Alleged Disability

Anderson was born in 1961.

He is a high school graduate.

He took some additional classes while serving in the Navy where
he was an active duty aviation anti-submarine warfare operator
from 1980 to 1987.

After his active duty, Anderson continued to

serve in the Navy Reserve until 1993.

He was employed in the

fast food industry until the early 2000s and as a general
laborer thereafter for Labor Ready performing construction
cleanup.

He has not maintained steady employment since March,

2008, his alleged onset date.
Anderson testified that he worked for one day in 2010 when
he traveled in a van for Labor Ready but he stopped working
after that as a result of pain in his lower back, legs and arms.
He also testified that he helped one of his friends who is a
plumber for a few hours on one other occasion in 2014 but that
was not regular employment.

In addition to his general pain,

Anderson asserts that his medications cause him dizziness and
cognitive impairment.
On March 5, 2008, the alleged onset date for purposes of
his application for disability insurance benefits, Anderson
visited a doctor for arm pain.

Before his onset date, plaintiff

consulted with a variety of doctors to deal with his ailments.
In 2000 or 2001, Anderson had a bad period of back pain and saw
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a doctor at Milton Hospital.
injection.

That doctor gave him a lower back

The injection helped for a few years after which his

condition worsened.

In 2008, plaintiff saw a second

neurosurgeon for his symptoms.

The record reflects that

Anderson had an MRI on his spine in 2007, an EMG of his lower
left leg in 2008 and that those exams revealed a form of
stenosis, a disc bulge and a root lesion.
Since March, 2013, Anderson’s last date of insurance and
eligibility for disability benefits, he has continued to receive
treatment from various doctors for his back pain and mental
health.

Anderson began treatment with Dr. Veronica Vedensky in

February, 2014, and has continued to meet with her
intermittently at all relevant times.

Dr. Vedensky referred

Anderson to a pain clinic and various specialists and monitored
his progress as he underwent multiple lumbar epidural steroid
injections.

He was also prescribed various medications during

that time to help treat his pain, including Tizanidine and
Gabapentin.
In August, 2014, Anderson met with Dr. Paul Blachman for a
neurological consultation where he complained of radiating back
pain, pain in his right arm and left leg and numbness in his
lower leg.

After ordering MRI studies, Dr. Blachman found no

evidence of spinal cord abnormality but observed that there was
significant degenerative arthritis in Anderson’s spine.
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Upon

further examination, Dr. Blachman determined that Anderson
exhibited normal strength and tone, normal gait and no sensory
abnormalities.

Dr. Blachman referred plaintiff for additional

epidural steroid injections.

Those injections were partially

successful in alleviating his pain for a few months at a time.
Anderson visited Dr. Blachman again in June, 2015, after
experiencing an intense onset of pain in multiple joints
resulting from a tetanus vaccination.

Dr. Blachman referred

Anderson to a rheumatologist.
In July, 2015, Anderson was referred to physical therapy
after complaining that his pain had spread to his shoulders.
was also prescribed Percocet around that time.

He

In October,

2015, it was noted that Anderson had passed out due to
dehydration after engaging in vigorous exercise.
In November, 2015, Anderson first met with rheumatologist
Dr. Peter Martens who noted that plaintiff had a stiff gait,
tenderness and decreased range of motion of the spine.

He was

prescribed Etodolac for his pain and later Cymbalta, although
Anderson was unable to fill the latter prescription because of
financial limitations.

He saw Dr. Martens again in March, 2016,

where he reported that he was unable to lift more than 10 pounds
and could not stand more than 10 to 15 minutes at a time or for
more than an hour per day.

He also stated that he had

difficulty with concentration because of his pain and the side
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effects from his medication.

Anderson’s neurological

examination was normal during that visit and the musculoskeletal
examination showed limited range of motion in the shoulders and
lower back but no muscular tenderness or swelling and normal
range of motion in the upper back and neck.

During that visit,

Dr. Martens also completed a disability form in which he
expressed the opinion that plaintiff could 1) lift and carry no
more than 10 pounds, 2) stand and walk less than two hours in an
eight-hour work day, 3) sit for less than six hours in an eighthour work day and 4) never crouch, crawl or stoop but
occasionally balance, kneel and climb.
Anderson consulted with Dr. Martens again in July, 2016.
The doctor recorded that Anderson was not taking his medication
because he could not afford it but that Anderson had reported
that physical therapy had significantly decreased his pain.
In addition to his treatment for his physical symptoms,
Anderson was seen by two mental health professionals after his
date of last insurance.

In October, 2014, Jessica Silbermann, a

clinical social worker at Bayview Associates, diagnosed Anderson
with a nonspecific anxiety disorder.

As part of her diagnosis,

Silbermann noted that Anderson exhibited abnormalities in his
mental status examination and difficulty with memory.

She

conducted a cognitive assessment known as a Global Assessment of
Functioning (“GAF”), which is a numeric score used by mental
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health physicians to assess the severity of mental impairment.
That assessment yielded a score of 50 which indicated serious
symptoms or impairments.
In March, 2015, Anderson underwent a psychiatric
consultative examination by Dr. Leah Logan.

She recorded that

Anderson had difficulty remembering words after a short delay
but that his speech was normal in rate, volume and tone and that
he appeared to be in a good mood throughout the interview.

She

conducted both a GAF and a Montreal Cognitive Assessment
(“MoCA”), another test to assess cognitive impairments.
Anderson scored a 63 and a 23 respectively on those cognitive
tests, both of which indicate mild limitations or cognitive
impairments.
B.

State Physician Medical Opinions

State agency medical opinions were submitted pertaining to
Anderson’s physical and mental health conditions.

With respect

to plaintiff’s physical impairments, Dr. Rudolf Titanji reviewed
plaintiff’s record in January, 2015, and Dr. Mary Connelly
reviewed his record in September, 2015.

Both physicians

provided opinions as to plaintiff’s physical limitations.

Dr.

Titanji opined that Anderson had a severe impairment of
degenerative disc disease.

Both physicians agreed that

plaintiff could 1) occasionally lift and/or carry 20 pounds, 2)
frequently lift and/or carry 10 pounds, 3) sit, stand and/or
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walk for about six hours each in an eight-hour work day, 4)
occasionally climb and stoop and 5) should avoid concentrated
exposure to fumes, odors, dusts, gases and poor ventilation.
With respect to plaintiff’s mental impairments, Dr. William
Alexander reviewed plaintiff’s record in March, 2015, and Dr.
Lawrence Langer reviewed his record in September, 2015.

Both

doctors agreed that Anderson did not have a severe mental
impairment.
C.

Application for Disability Insurance

Anderson filed applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income benefits
(“SSI”) on October 28, 2014, and November 14, 2014,
respectively.

He claimed multiple disabilities including 1)

hearing issues (tinnitus and hearing loss), 2) a back condition
(degenerative disc disease), 3) a neck condition (nerve damage),
asthma and 4) various cognitive impairments (memory loss,
anxiety disorder and PTSD).

After receiving an initial denial

and a denial of reconsideration from the Commissioner, plaintiff
requested a hearing before an ALJ.
D.

The ALJ’s Decision

In November, 2016, a hearing was held before ALJ Carol Sax.
The ALJ issued a partially favorable decision for Anderson in
December, 2016, finding that he was not disabled through October
29, 2016, but became disabled on October 30, 2016, the day
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before his 55th birthday.

On that date, plaintiff entered the

“person of advanced age” category pursuant to the MedicalVocational Rules. 20 C.F.R. § 404.1563.

Prior to that date, he

was in the “person closely approaching advanced age” category
for individuals between the ages of 50 and 54. Id.

To qualify

for disability benefits prior to his 55th birthday, plaintiff
would have needed a residual function capacity (“RFC”)
determination of “sedentary” but after that he needed only to
have a “light” RFC determination to qualify for disability
benefits.
Because the ALJ found that Anderson had a RFC for light
work, she determined that he was not disabled before his 55th
birthday but became disabled thereafter once he entered the
“person of advanced age” category.

She thus granted him SSI

benefits from his 55th birthday onward.

The ALJ did not,

however, grant Anderson DIB benefits because to receive DIB
benefits the period of disability cannot begin after the date of
the worker’s last insurance which, for plaintiff, was March,
2013.
To arrive at that decision, the ALJ utilized the standard
five-step evaluation process to evaluate Anderson’s disability
claims. See 20 C.F.R. § 404.1520(a)(4).
At step one, the ALJ found that Anderson’s onset date was
March 5, 2008, and that he had not engaged in substantial
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gainful activity (“SGA”) since that date.

The ALJ also

determined that plaintiff met the insured status requirements
through March 31, 2013, his date of last insurance.
At step two, the ALJ concluded that Anderson has had a
severe impairment of degenerative disc disease since his alleged
onset date of March, 2008.

The ALJ determined that Anderson’s

asthma, hearing loss and anxiety are non-severe impairments.

In

concluding that Anderson’s anxiety disorder is not severe, the
ALJ noted that his GAF score of 63 indicated only mild symptoms
or limitations in functioning.

The ALJ did not discuss the

lower GAF score, the MoCA score or Dr. Logan’s additional
observations that Anderson exhibited memory issues.
At step three, the ALJ found that Anderson’s impairments
did not meet or equal one of the listed impairments in 20 C.F.R.
§§ 404.1520(d), 404.1525 and 404.1526.
Before proceeding to step four, the ALJ found that
plaintiff had the RFC to perform light work with the additional
limitations of: 1) only occasional pushing or pulling with his
left arm; 2) occasionally reaching overhead with his upper
extremities; 3) occasionally climbing, balancing, stooping,
kneeling, crouching and crawling; and 4) avoiding concentrated
exposure to extreme cold, extreme heat, humidity, fumes, dust,
odors, gases and poor ventilation.

The ALJ concluded that the

objective medical evidence, while supporting a finding of severe
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impairment based on Anderson’s back and arm pain, did not
support the greater level of severity suggested by plaintiff’s
subjective complaints.
The ALJ discounted the opinion of Dr. Martens with respect
to Anderson’s physical limitations.

She found that Dr.

Martens’s opinion was not supported by other evidence in the
record, which showed that Anderson was able to engage in
significant daily activities, such as grocery shopping, riding
his motorcycle and bicycle, taking public transportation and
participating in family activities.

The ALJ also noted that Dr.

Martens’s opinion was made after only a few visits and appeared
simply to recite Anderson’s own subjective complaints at that
particular visit.

Finally, the ALJ reasoned that Dr. Martens’s

opinion was inconsistent with Anderson’s treatment history,
which consisted of routine and conservative treatment that has
been effective in treating his back pain.
The ALJ also considered the opinions of the state agency
physicians, Drs. Titanji and Connelly, but afforded them only
partial weight because she found that plaintiff is slightly more
limited than those medical advisors concluded.

Specifically,

the ALJ determined that Anderson was slightly more limited with
respect to his upper extremities, including his ability to reach
bilaterally and push and pull with his left arm.

The ALJ did

not discuss any of Anderson’s documented cognitive impairments
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in calculating his RFC.

Based on the above RFC determination,

the ALJ concluded that since March, 2008, plaintiff has been
unable to perform any past relevant work as a general laborer.
At step five, the ALJ determined that Anderson could
perform other jobs in light of his RFC, age, education and work
experience that existed in significant numbers in the national
economy.

Based on testimony of a vocational expert at the

hearing, the ALJ found that plaintiff could perform the
following three jobs: order caller, shipping and receiving
weigher and mail clerk.

In response to questioning by

plaintiff’s counsel, however, the vocational expert conceded
that a worker with the additional physical limitations described
in Dr. Martens’s assessment would be unable to perform any
relevant work.

The vocational expert also acknowledged that a

worker with the additional limitation of mild cognitive
impairment, specifically the inability to concentrate for a
significant period of time, may be unable to perform any
relevant work which would require a finding of disabled.
E.

District Court Action and Parties’ Arguments

In April, 2017, the Appeals Council denied plaintiff’s
request for review and the ALJ’s decision became the final
decision of the Commissioner.
complaint in this case.

In June, 2017, Anderson filed his

Pending before the Court is Anderson’s

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motion to reverse or remand the Commissioner’s decision and
defendant’s motion to affirm that decision.
Anderson asserts that the ALJ erred in partially denying
his claim for benefits because 1) she erroneously rejected the
treating source opinion of rheumatologist Dr. Peter Martens, 2)
she failed to develop the record with respect to plaintiff’s
mental impairments and 3) her analysis of the vocational
testimony was flawed.
Anderson submits that Dr. Martens’s opinion as to
plaintiff’s physical limitations should have been afforded
controlling weight because he was the only treating physician to
offer a source opinion and the ALJ failed to do so.

Moreover,

Anderson contends that the ALJ did not offer adequate reasons
for giving Dr. Martens’s opinion less weight.

He asserts that

the ALJ should have concluded, based on Dr. Martens’s
assessment, that Anderson had an RFC for only sedentary work
which would have necessitated a finding of disabled.
Anderson also claims that the ALJ failed to assess
adequately his mental limitations and thus inaccurately analyzed
the vocational expert’s testimony.

Anderson contends that the

assessments of both Silbermann and Dr. Logan indicate that
plaintiff has difficulty with his memory and that the three
cognitive tests administered produced consistent results
indicating that he had at least mild cognitive impairments.
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Despite those various indicators of cognitive impairment,
Anderson asserts that the ALJ neglected to discuss any mental or
cognitive limitations in her RFC analysis.

Anderson submits

that the ALJ also ignored the colloquy between plaintiff’s
counsel and the vocational expert which indicated that a worker
with mild cognitive limitations, in addition to Anderson’s other
physical limitations, would be unable to perform any job
available in the national economy.
The Commissioner denies plaintiff’s contentions and asserts
that its decision should be upheld because the ALJ findings are
supported by substantial evidence and are free of material
errors of law.

The Commissioner submits that Dr. Marten’s

opinion was inconsistent with other substantial evidence in the
record, such as Anderson’s ability to engage in various physical
activities and his alleviated levels of pain after physical
therapy, and that the opinion was also primarily based on
plaintiff’s own subjective complaints.

Defendant therefore

submits that the ALJ was entitled to give that opinion less
weight.
With respect to the alleged mental and cognitive
limitations, the Commissioner contends that the ALJ adequately
developed the record as to those potential limitations.
Defendant asserts that the ALJ correctly discounted the
assessment of Silbermann because clinical social workers are not
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acceptable medical sources under SSA regulations.

Furthermore,

defendant notes that Dr. Logan, the only psychologist who
examined Anderson, did not diagnose him with any cognitive or
mental impairment that would preclude him from working and the
state agency psychologist, Dr. William Alexander, agreed with
that determination.

Defendant argues that those determinations

are substantial evidence in support of the ALJ’s conclusions at
steps four and five of her analysis.
II.

Pending Motions
A.

Legal Standard

Title II of the Social Security Act gives United States
District Courts authority 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
conclusion. Evangelista v. Sec’y of Health & Human Servs., 826
F.2d 136, 144 (1st Cir. 1987).

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

Application
1.

Weight of Treating Physician Opinion

Anderson contends that the ALJ committed reversible error
by failing to give controlling weight to the opinion of his
treating physician, Dr. Martens.

While the law in this Circuit

does not require an ALJ to give greater weight to the opinions
of a treating physician, the ALJ must give good reasons for his
or her decision not to give controlling weight to such an
opinion. Sullivan v. Berryhill, 317 F. Supp. 3d 658, 663 (D.
Mass. 2018) (citing Arroyo v. Sec’y of Health & Human Servs.,
932 F.2d 82, 89 (1st Cir. 1991)).

When determining whether to

attribute less than controlling weight to a treating source
opinion, the ALJ may consider: 1) “the length, frequency,
nature, and extent of the treatment relationship”; 2) “the
supportability of the opinion”; 3) “the consistency of the
opinion with the record as a whole”; 4) “the treating
physician’s specialization in the relevant area of medicine”;
and 5) “other factors brought to the ALJ’s attention”. Id.
(citing 20 C.F.R. §§ 402.1527(c)(2)-(6), 416.927(c)(2)-(6)).
Brevity of the treatment relationship, a lack of detail in the
explanation of the patient’s physical limitations and
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inconsistency with the other objective medical evidence may all
be good reasons for not giving the opinion of a treating
physician controlling weight. See Arruda v. Barnhart, 314 F.
Supp. 2d 52, 72-74 (D. Mass. 2004).
Here, the ALJ gave several reasons for attributing less
than controlling weight to Dr. Martens’s opinion.

First, the

ALJ noted that Dr. Martens’s opinion as to plaintiff’s physical
limitations was made after only two visits.

While there is a

dispute as to the exact number of visits Anderson had with Dr.
Martens, the Court finds that the disputed opinion was made
after no more than three visits which is a relatively brief
treatment relationship.

Second, the ALJ explained that Dr.

Martens’s opinion seemed to be based primarily on the claimant’s
own reports of his symptoms rather than on the objective medical
evidence.

Relying solely on the patient’s own subjective

complaints when making an opinion may be a good reason to give
less weight to that treating source opinion. See Figueroa v.
Colvin, Civil Action No. 14-12399-ADB, 2015 WL 4465350, at *9
(D. Mass. July 21, 2015).
Finally, the ALJ found that Dr. Martens’ opinion was not
consistent with the other evidence in the record, including the
fact that Anderson was able to ride his motorcycle and bicycle,
take public transportation and engage in certain daily
activities like grocery shopping.
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Moreover, the ALJ noted that

Anderson had only been receiving conservative treatment and that
his pain levels had actually gone down in response to physical
therapy.

That evidence provides further support for her

determination that, as to Anderson’s physical limitations, Dr.
Martens’s opinion was inconsistent with other evidence in the
record.
While Dr. Martens is a rheumatologist, his status as a
specialist alone does not mean that the ALJ must give his
opinion controlling weight.

All of the reasons provided by the

ALJ, when taken together, provide ample support for her decision
not to give controlling weight to Dr. Martens’s opinion.
Accordingly, the ALJ did not err in analyzing that treating
source opinion and thus her RFC determination with respect to
Anderson’s physical limitations is supported by substantial
evidence.

That part of the ALJ’s decision will be affirmed.
2.

Assessment of Mental Limitations

The ALJ failed, however, to document adequately her
findings and conclusions with respect to Anderson’s mental
limitations and the effects those limitations had, if any, on
his RFC.

Remand is appropriate where the ALJ has failed to

develop an adequate record upon which judicial review can be
made. King v. Colvin, 128 F. Supp. 3d 421, 237, 440-41 (D. Mass.
2015) (holding that where the record contained evidence of both
physical and mental limitations but “the ALJ failed to address
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this evidence anywhere in his opinion”, remand was appropriate
because “the ALJ’s decision is not sufficiently developed to
allow for judicial review”).

Where the record is not

sufficiently developed, the plaintiff must still demonstrate
that he was prejudiced by that deficiency in order to warrant
remand. Id. at 237.
At step two of the five-step analysis, the ALJ determined
that Anderson’s anxiety and other alleged cognitive impairments
were not severe.

Dr. Logan assessed Anderson with a GAF score

of 63, indicating only mild symptoms or limitations but Dr.
Logan also noted that Anderson exhibited some difficulties with
his memory.

The ALJ neglected to discuss the other two

cognitive tests assessed by Silbermann and Dr. Logan, which
yielded a GAF score of 50 and a MoCA score of 23, respectively.
The ALJ did not explain why she relied upon the GAF score of 63
but not the results of the other two cognitive tests,
particularly the first GAF score of 50 which indicated severe
symptoms or cognitive limitations.

Based on the record as a

whole, however, there is substantial evidence to support the
ALJ’s determination that Anderson’s mental limitations are not
severe given Dr. Logan’s overall assessment, the scores of the
latter two tests which both indicated only minor symptoms or
cognitive limitations and plaintiff’s ability to engage in
activities of daily life.
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Notwithstanding the finding that the ALJ’s determination at
step two of the analysis is supported by substantial evidence, her
determination at step four and step five of the analysis is
insufficiently developed to warrant judicial review.

The ALJ

explicitly found that Anderson has at least mild cognitive
limitations with respect to “concentration, persistence and pace”.
In determining a claimant’s RFC, the ALJ must consider both severe
and non-severe impairments. 20 C.F.R. 404.1520(e), 404.1545,
416.920(e), 416.945.

In determining Anderson’s RFC here, however,

the ALJ discussed only Anderson’s physical limitations but did not
mention his mental and cognitive limitations.

It is unclear from

the record whether the ALJ considered Anderson’s mild mental
limitations and found them to have no bearing on his RFC or
whether she ignored those impairments altogether in determining
his RFC.
The resulting gap in the record is significant and
prejudicial in light of the testimony of the vocational expert
that a person with mild cognitive impairments, in addition to
plaintiff’s other physical limitations, may be precluded from
employment.

Specifically, the vocational expert opined that a

person with plaintiff’s physical limitations who could not sustain
attention or concentration for a significant period of time would
not be able to perform any of the jobs identified at the light

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exertional level.

That testimony is significant given Anderson’s

alleged mild cognitive impairments.
At best, the ALJ assessed Anderson’s potential memory and
concentration issues in light of the vocational expert’s testimony
and found them to be insufficiently serious to preclude
employment.

At worst, the ALJ ignored the effect of plaintiff’s

mild cognitive impairments on his ability to concentrate even
though that determination is dispositive of the issue of whether
he can perform relevant work.

The Court is incapable of

determining which is true based on the current record.
Anderson’s motion will, therefore, be allowed with respect to
the ALJ’s analysis of his mental limitations at steps four and
five of the analysis and the Commissioner’s decision will be
remanded for further development of the record.

The ALJ shall

either properly document her previous consideration of plaintiff’s
mental impairments at steps four and five of the analysis or
consider the impact of his mental impairments in the first
instance.
ORDER
For the foregoing reasons,
1) plaintiff’s motion to reverse or remand the
Commissioner’s decision (Docket No. 24) is ALLOWED, in
part, and DENIED, in part;

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2) defendant’s motion to affirm the Commissioner’s decision
(Docket No. 26) is ALLOWED, in part, and DENIED, in part;
and
3) the case is REMANDED for further consideration consistent
with this opinion.

So ordered.
/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated March 19, 2019

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