Hurlburt v. Colvin
Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. For the reasons stated, Pltf's Motion for Judgment on the Pleadings - 13 is DENIED, and the Commissioner's Motion for an Order Affirming the Decision of the Commissioner - 17 is GRANTED. (Finn, Mary)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JAMES MICHAEL HURLBURT,
CAROLYN W. COLVIN,
Acting Commissioner of Social
Case No. 3:15-cv-30173-KAR
MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR JUDGMENT
ON THE PLEADINGS AND DEFENDANT’S MOTION FOR ORDER AFFIRMING THE
DECISION OF THE COMMISSIONER
(Dkt. Nos. 13 & 17)
March 30, 2017
On September 29, 2015, plaintiff James Michael Hurlburt (“Plaintiff”) filed a complaint
pursuant to 42 U.S.C. § 405(g) against the Acting Commissioner of the Social Security
Administration (“Commissioner”), appealing the denial of his claims for Supplemental Security
Income (“SSI”) and Social Security Disability Insurance (“SSDI”). Plaintiff asserts that the
Commissioner’s decision denying him such benefits – memorialized in a July 24, 2014 decision
by an administrative law judge (“ALJ”) – is in error. Specifically, Plaintiff alleges that the ALJ
erred by not finding that his mental impairments of depression and anxiety were severe. Plaintiff
has moved for judgment on the pleadings requesting that the Commissioner’s decision be
reversed, or, in the alternative, remanded for further proceedings (Dkt. No. 13). The
Commissioner has moved for an order affirming the decision of the Commissioner (Dkt. No. 17).
The parties have consented to this court’s jurisdiction (Dkt. No. 12). See 28 U.S.C. § 636(c);
Fed. R. Civ. P. 73. For the following reasons, the court will deny Plaintiff’s motion and allow
the Commissioner’s motion.
Plaintiff applied for SSI and SSDI on October 3, 2011, alleging a June 6, 2007 onset of
disability due to a left shoulder injury and emphysema (Administrative Record (“A.R.”) at 191207, 215-224). Plaintiff’s applications were denied initially and on reconsideration (id. at 11924, 129-35). Plaintiff requested a hearing before an ALJ, and one was held on April 11, 2014, at
which time Plaintiff claimed disability due to a left shoulder injury, diabetes, emphysema,
depression, and anxiety (id. at 30-65). Following the hearing, the ALJ issued a decision on July
24, 2014, finding that Plaintiff was not disabled and denying Plaintiff’s claims (id. at 10-27).
The Appeals Council denied review on July 29, 2015, and the ALJ’s decision became the final
decision of the Commissioner (id. at 1-7). This appeal followed.
A. Standard for Entitlement to Social Security Disability Insurance
In order to qualify for SSI and SSDI, a claimant must demonstrate that he is disabled
within the meaning of the Social Security Act. 1 A claimant is disabled for purposes of SSI and
SSDI if 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 twelve months.” 42
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is unable to engage in any substantial
For SSDI, the claimant also must demonstrate that the disability commenced prior to the
expiration of his insured status for disability insurance benefits. See 42 U.S.C. § 423(a)(1).
gainful activity when he “is not only unable to do his previous work, but cannot, considering his
age, education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if
he applied for work.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Commissioner evaluates a claimant’s impairment under a five-step sequential
evaluation process set forth in the regulations promulgated under each statute. See 20 C.F.R. §§
404.1520, 416.920. The hearing officer must determine: (1) whether the claimant is engaged in
substantial gainful activity; (2) whether the claimant suffers from a severe impairment; (3)
whether the impairment meets or equals a listed impairment contained in Appendix 1 to the
regulations; (4) whether the impairment prevents the claimant from performing previous relevant
work; and (5) whether the impairment prevents the claimant from doing any work considering
the claimant’s age, education, and work experience. See id. See also Goodermote v. Sec’y of
Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982) (describing the five-step process). If the
hearing officer determines at any step of the evaluation that the claimant is or is not disabled, the
analysis does not continue to the next step. 20 C.F.R. §§ 404.1520, 416.920.
Before proceeding to steps four and five, the Commissioner must make an assessment of
the claimant’s “residual functional capacity” (“RFC”), which the Commissioner uses at step four
to determine whether the claimant can do past relevant work and at step five to determine if the
claimant can adjust to other work. See id. “RFC is what an individual can still do despite his or
her limitations. RFC is an administrative assessment of the extent to which an individual's
medically determinable impairment(s), including any related symptoms, such as pain, may cause
physical or mental limitations or restrictions that may affect his or her capacity to do work-
related physical and mental activities.” Social Security Ruling (“SSR”) 96-8p, 1996 WL
374184, at *2 (July 2, 1996).
The claimant has the burden of proof through step four of the analysis, Goodermote, 690
F.2d at 7, including the burden to demonstrate RFC. Flaherty v. Astrue, No. 11-11156-TSH,
2013 WL 4784419, at *9 (D. Mass. Sept. 5, 2013) (citing Stormo v. Barnhart, 377 F.3d 801, 806
(8th Cir. 2004)). At step five, the Commissioner has the burden of showing the existence of
other jobs in the national economy that the claimant can nonetheless perform. Goodermote, 690
F.2d at 7.
B. Standard of Review
The District Court may enter a judgment affirming, modifying, or reversing the final
decision of the Commissioner, with or without remanding for rehearing. See 42 U.S.C. §§
405(g), 1383(c)(3). Judicial review “is limited to determining whether the ALJ used the proper
legal standards and found facts upon the proper quantum of evidence.” Ward v. Comm'r of Soc.
Sec., 211 F.3d 652, 655 (1st Cir. 2000). The court reviews questions of law de novo, but must
defer to the ALJ’s findings of fact if they are supported by substantial evidence. Id. (citing
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.1999)). Substantial evidence exists “‘if a reasonable
mind, reviewing the evidence in the record as a whole, could accept it as adequate to support
[the] conclusion.’” Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.
1991) (quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir.
1981)). “While ‘substantial evidence’ is ‘more than a scintilla,’ it certainly does not approach
the preponderance-of-the-evidence standard normally found in civil cases.” Bath Iron Works
Corp. v. U.S. Dep’t of Labor, 336 F.3d 51, 56 (1st Cir. 2003) (citing Sprague v. Dir. Office of
Workers’ Comp. Programs, U.S. Dep’t of Labor, 688 F.2d 862, 865 (1st Cir. 1982)). In applying
the substantial evidence standard, the court must be mindful that it is the province of the ALJ,
and not the courts, to determine issues of credibility, resolve conflicts in the evidence, and draw
conclusions from such evidence. Irlanda Ortiz, 955 F.2d at 769. So long as the substantial
evidence standard is met, the ALJ’s factual findings are conclusive even if the record “arguably
could support a different conclusion.” Id. at 770. That said, the Commissioner may not ignore
evidence, misapply the law, or judge matters entrusted to experts. Nguyen, 172 F.3d at 35.
Plaintiff was 53 years old at the time of the ALJ’s decision (A.R. at 21, 191, 198). He
has a high school education and previously worked as an electrician and sheet metal mechanic
(id. at 219-220). Plaintiff was working as an electrician in February 2007, when he injured his
left shoulder on the job (id. at 37-38). He continued to work in a light duty capacity for four
months after sustaining the injury, until approximately June 2007, when he had his first shoulder
surgery (id. at 38, 55).
B. Medical Evidence 2
1. References to Mental Health in Physician Notes
On March 10, 2008, Plaintiff was seen by Sharon L. Jarmolowicz, P.A., at Concentra
Medical Centers (“CMC”) for pain in his right lower back (id. at 412-415). Jarmolowicz noted
that Plaintiff was already being treated at CMC for a left shoulder injury sustained on February
8, 2007, for which he had undergone two surgeries (id.). During the visit, Plaintiff denied any
Plaintiff has not criticized the ALJ’s assessment of his restrictions based on his physical
impairments on appeal. Accordingly, the court does not address those impairments and the
resulting restrictions, other than to note the existence of those impairments and restrictions.
“abnormal Psycho/Social changes,” and he was noted to be “alert, oriented x 3 & conversant,”
with a normal affect (id.).
Plaintiff was seen by his primary care physician, Kimat Khatak, M.D., on April 11, 2011
(id. at 506). Dr. Khatak noted that Plaintiff was “very anxious and nervous” (id.). “He went on
the internet to read about COPD [chronic obstructive pulmonary disease] and then became so
anxious and nervous that he could not take it anymore and that [sic] he was going to die that very
day” (id.). Dr. Khatak prescribed Ativan .5 mg every six hours as needed for anxiety (id.).
Plaintiff was seen again by Dr. Khatak on April 23, 2012 (id. at 505). Plaintiff reported
that he was very anxious and nervous and was taking Ativan off and on (id.).
On December 12, 2013, Plaintiff presented at the emergency room at Holyoke Medical
Center with a sore throat (id. at 525-531). Plaintiff was fully oriented with a normal mood and
affect and intact memory (id. at 525).
2. Consultative Psychological Evaluation
On November 15, 2011, Plaintiff was evaluated by Leon Hutt, Ph. D., a psychologist, at
the request of the Social Security Administration (id. at 492-96). Plaintiff’s chief complaint was
that he often woke at 4:00 a.m., and he would begin to sweat profusely, feel a sense of “gloom,”
and be unable to go back to sleep (id. at 493). Plaintiff reported that he would lie in bed for a
few hours and then it would “take everything” to get out of bed (id.). Plaintiff also stated that
he had difficulty falling asleep and was “always depressed” (id. at 494). Plaintiff’s focus was on
what he perceived to be his “declining health status,” relating to his emphysema, diabetes, and
left shoulder condition (id.). Plaintiff reported limited interpersonal contact mostly with his
girlfriend of three and one-half years and his parents (id.). Plaintiff denied past psychiatric
treatment (id.). Dr. Hutt conducted a mental status examination of Plaintiff (id. at 494-95).
According to Dr. Hutt, Plaintiff was “neatly dressed and neatly groomed, pleasant, polite, and
cooperative,” fully alert, and adequately oriented to time and place; his speech was generally
clear, relevant, and coherent; and he exhibited no oddities of thinking or speech and no
indications of psychosis (id. at 494). Dr. Hutt noted that Plaintiff impressed as “having excessive
and somewhat unrealistic worry” (id. at 495). Dr. Hutt assessed Plaintiff’s attentional capacity
as “mildly impaired, likely secondary to his being anxious” (id. at 495). “Intellectually, he
impressed as functioning broadly in the average range of adult intellectual functioning” (id.).
Plaintiff exhibited no indications of impaired memory, his affect was appropriate, and he was
“not anhedonic” (id.). Dr. Hutt’s diagnostic impression was that Plaintiff suffered from
generalized anxiety disorder with a Global Assessment of Functioning (GAF) score of 65. 3 Dr.
Hutt stated that he saw Plaintiff as “competent to manage his own finances,” but he had “some
doubts” as to his ability to “psychologically tolerate the stressors associated with employment
3. Mental Health Treatment Records
Plaintiff began treatment with Luz Martin, M.D., a psychiatrist, on March 22, 2012 (id. at
500-01). Plaintiff’s chief complaint was anxiety (id.). Plaintiff reported feeling depressed and
having a fear of impending doom (id.). Dr. Martin assessed Plaintiff as exhibiting an appropriate
affect, no flight of ideas, fair insight and judgment, and speech within normal limits (id.). He
GAF scores are expressed in terms of degree of severity of symptoms or functional impairment,
with scores of 41 to 50 representing “serious” severity, scores of 51 to 60 representing
“moderate” severity, and scores of 61 to 70 representing “mild” severity See American
Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, 32–34 (4th Ed. Text
diagnosed Plaintiff with generalized anxiety disorder and major depressive disorder, assessed a
GAF score of 65, and prescribed medications (id.).
Plaintiff returned to Dr. Martin on August 20, 2012 (id. at 502, 523). Plaintiff reported
experiencing increased anxiety relating to his unemployment (id.). The other treatment notes
from this date are illegible. Plaintiff saw Dr. Martin again on October 22, 2012, December 12,
2012, June 7, 2013, and August 6, 2013, but the treatment notes associated with those sessions
are illegible as well (id. at 522-23).
On January 4, 2013, on referral from Dr. Martin, Plaintiff met with Dr. Young K. Kim,
Ph. D., for a psychological examination “to determine his levels of cognitive, emotional, and
academic functioning, as well as coping skills” (id. at 549-552). Plaintiff reported being
depressed since his shoulder injury, with symptoms of sadness, decreased pleasure, feeling
disappointed in himself, hopelessness, increased irritability and appetite, fatigue, inability to
relax, nervousness, being scared, and fear of the worst happening (id. at 549). Plaintiff reported
owning a car and feeling capable of driving, managing finances, and shopping (id.). Dr. Kim
administered a number of tests, including the Wechsler Adult Intelligence Scale – Fourth Edition
(WAIS-IV), Bender-Gestalt, Rorschach, Thematic Apperception Test (TAT), House-Tree-Person
Test, and Wide Range Achievement Test Revised Level 2 (WRAT-R2) (id.). In administering
the tests, Dr. Kim observed that Plaintiff was appropriately and neatly dressed, that he was able
to easily establish rapport with Plaintiff, that Plaintiff was compliant with instructions and
appeared to do his best on the challenges, that Plaintiff listened carefully to directions and took
his time in carrying out the required tasks, and that Plaintiff was able to complete testing
protocols within the allotted time (id.). The WAIS-IV results showed that Plaintiff was in the
high average range for verbal comprehension, the average range for perceptual reasoning,
working memory, and full scale IQ, and the low average range for processing speed (id. at 550).
Results of the WRAT-R2 showed that Plaintiff was functioning above a twelfth grade level in
reading and spelling and at a tenth grade level in arithmetic (id. at 551). The Bender-Gestalt
results showed that his visual-motor development was intact (id). The results of the Rorschach,
Thematic Apperception Test (TAT), and House-Tree-Person tests revealed no signs of serious
psychopathology, instead showing signs that Plaintiff “possesses very tenuous ego controls and
that he struggles with a great deal of inner tension, which propagates highly agitated responses”
(id.). Plaintiff’s “primary issues … appear[ed] to be his difficulty regulating his emotions and
dealing with his shoulder pain and unemployment” (id. at 552). Dr. Kim diagnosed Plaintiff
with Major Depressive Disorder Recurrent Severe Without Psychotic Features and Anxiety
Disorder Due to Shoulder Injury and assessed him with a GAF of 55 (id.). One of Dr. Kim’s
recommendations for Plaintiff was that he engage in rehabilitative services for alternative
vocational training and job placement adaptive to his physical limitations” (id.). 4
Plaintiff’s next visit with Dr. Martin was on October 14, 2013 (id. at 520-21). Plaintiff
reported stress related to living next door to his parents and helping them out, physical aches and
pains, health issues, and his inability to find a job (id.). Dr. Martin conducted a mental status
examination and noted that Plaintiff’s appearance, attitude, and motor activity were all normal
(id.). His activities of daily living were fair (id.). Dr. Martin observed Plaintiff to be
cooperative, pleasant, and able to sit still (id.). Plaintiff was alert and oriented in all spheres
Plaintiff also saw Dr. Kim for individual therapy three times between September 2012 and
February 2013 (i.e. three times in six months) and five times between November 2013 and
March 2014 (i.e. five times in five months after an eight month gap) (id. at 548). In a note dated
March 24, 2014, Dr. Kim noted that Plaintiff was undergoing therapy to treat symptoms of Major
Depression and Anxiety Disorder Due to Shoulder Injury diagnoses, including symptoms of
pain, anxiety, anger, uneasiness around people, and sadness.” Dr. Kim noted that Plaintiff was
living with his girlfriend and was able to drive, manage his finances, and shop (id.).
(id.). His mood was anxious (id.). His speech, thought content, and thought form were all
normal (id.). His concentration, memory, and judgment were all fair (id.). Dr. Martin assessed
Plaintiff as having a GAF of 75 and added diagnoses for insomnia due to mental disorder and
anxiety state, unspecified, to his existing mental health diagnoses of generalized anxiety disorder
and major depressive disorder, single episode, moderate, and adjusted Plaintiff’s medications
Plaintiff met again with Dr. Martin on December 23, 2013 (id. at 518-19). Plaintiff
indicated that he was still depressed and anxious (id.). Dr. Martin conducted a mental status
examination and noted that Plaintiff’s appearance, attitude, and motor activity were all normal;
his activities of daily living were good; he was cooperative, pleasant, and able to sit still; he was
alert and oriented in all spheres; his speech was goal directed, with a normal rate and rhythm; he
denied suicidal or homicidal ideation; his thought content consisted of no hallucination, delusion,
or oddity; his thought form consisted of no looseness of association and no flight of ideas; his
concentration was fair; his cognition was grossly intact; his insight and judgment were fair; and
his mood and affect were depressed, dysphoric, and anxious (id.). Dr. Martin again adjusted
Plaintiff’s medications (id.).
Plaintiff’s final appointment with Dr. Martin was on March 19, 2014 (id. at 516-17).
Plaintiff indicated that he was more tired and “panicky” in the mornings, but he was sleeping
well at night (id.). Plaintiff reported that he was sleeping later in the mornings because he was
feeling more anxious and depressed (id.). He continued to provide care for his elderly parents
and was having financial issues, which was leaving him feeling easily overwhelmed (id.). Dr.
Martin conducted a mental status examination and noted that Plaintiff’s thought content and his
thought form were normal and his mood and affect were depressed, dysphoric, and anxious (id.).
Plaintiff’s diagnoses remained unchanged, but his medications were adjusted (id.).
C. State Agency Opinion Evidence
Dr. Lawrence Langer, a state agency psychologist, completed a Mental Residual
Functional Capacity Assessment following a review of the evidence on December 19, 2011 (id.
at 66-75). Dr. Langer diagnosed Plaintiff as suffering from a severe Anxiety Disorder (id. at 69).
He found that Plaintiff had mild restriction of activities of daily living, mild difficulties in
maintaining social functioning, moderate difficulties in maintaining concentration persistence, or
pace, and no episodes of decompensation of extended duration (id. at 70). In assessing
Plaintiff’s residual functional capacity, Dr. Langer opined that Plaintiff was moderately limited
in the ability to maintain attention and concentration for extended periods and in the ability to
complete a normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and length of rest
periods (id.). Dr. Langer concluded that Plaintiff could sustain concentration, persistence, and
pace for at least simple one and two step tasks (id.).
Dr. John Perlman, another state agency psychologist, reached similar conclusions in
October 2012 (id. at 88-100). He diagnosed Plaintiff with severe Anxiety Disorder and severe
Affective Disorder (id. at 93). In addition to the limitations noted by Dr. Langer, Dr. Perlman
opined that Plaintiff is moderately limited in the ability to carry out detailed instructions (id.).
Dr. Perlman concluded that Plaintiff could complete simple, routine tasks and sustain
concentration for at least two hours (id.). 5
“The Social Security Administration’s Program Operation Manual explains ‘that the mental
abilities needed for any job include the ability to understand, remember, and carry out simple
instructions by, … maintaining concentration and attention for extended periods (the
D. Plaintiff’s Statements
Plaintiff completed a Function Report on April 11, 2012 (id. at 233-40). Plaintiff
reported that he was living alone and handling his own personal care with some difficulty due to
his left shoulder injury, preparing his own meals, cleaning his house, doing his laundry, trying to
go out on a daily basis, driving, shopping for food and clothes, handling his finances, and visiting
his parents daily (id. at 234-37). Plaintiff indicated that he got anxious when around too many
people and characterized himself as “very depressed” (id. at 238-39). He reported that he did not
handle stress well (id. at 239). In checkbox format, he marked that his conditions did not affect
his “memory,” “understanding,” or “following instructions,” but did affect his “completing
tasks,” “concentration,” and “getting along with others” (id. at 238). Nonetheless, he
characterized his ability to follow written instructions, follow spoken instructions, and handle
changes in routine as “very well,” reported that he had no problem getting along with authority
figures, and advised that he was able to pay attention “[f]or a long time” and finished the things
he started (id.).
At the April 11, 2014 hearing, Plaintiff testified that he started to seek treatment for his
depression and anxiety three or four years earlier (id. at 46). According to Plaintiff, the symptom
that caused him to seek treatment was that he would wake up in the mornings in a cold sweat,
panicking and not wanting to get out of bed (id.). He stated that his anxiety could “be triggered
at a moment’s notice,” for example if he were to leave the hearing and find that his truck had a
flat tire, he would go into “panic mode” (id.). Once triggered, the anxiety could last for
approximately 2-hour segments between arrival and first break, lunch, second break, and
departure.’” Dorman v. Astrue, No. 12-40023-TSH, 2013 WL 4238315, at *13-14 (D. Mass.
May 21, 2013) (quoting McGrath v. Astrue, No. 10-cv-455-JL, 2012 WL 976026, at *6 (D.N.H.
Mar. 22, 2012) (slip op.)). Thus, a two hour limit on concentration need not be incorporated into
an RFC. Id.
anywhere from a few hours to a day (id. at 47). Plaintiff testified that, in order to attempt to calm
himself down, he would try to slow down his breathing and remove himself from the stressful
situation (id.). According to Plaintiff, medication had not helped alleviate his depression or
anxiety (id. at 48).
Plaintiff testified that he lived with his girlfriend (id. at 49). The two split household
duties with his girlfriend doing the cooking and Plaintiff doing the dishes (id.). Plaintiff also
testified that he did laundry and occasionally accompanied his girlfriend to the grocery store
(id.). Plaintiff testified that he needed reminders to remember things (id.). Plaintiff testified that
he had “bad days” and “good days” (id. at 51). “A bad day is just a day full of just being –
feeling depressed, sorry for myself, you know, how I used to work and was able to, you know,
take care of myself without having to have around someone else now for all my, you know – to
pay for everything” (id.). “A better day, like I’m visiting people, or my brother comes over,
basically, you know, we start talking and you know, I just feel better about myself on those days”
(id.). The ALJ inquired whether Plaintiff thought earning a paycheck would help with his
depression, and Plaintiff answered that he thought if he had a steady job, it might help (id.).
Plaintiff testified that he drove without difficulty, including driving to the hearing itself (id. at
46-47). Plaintiff testified that he helped his elderly parents by taking their trash out once per
week and picking up their basement (id. at 54). The ALJ highlighted a notation from March
2011 that Plaintiff was looking for a job and inquired what type of work Plaintiff thought that he
could do (id. at 52). Plaintiff responded that he did not think anyone would hire him presently
because of his breathing (id.). He added “sometimes [I] think I could find an electrical job where
I could sit on my – sit down and maybe like wire outlets all day long. But I know that’s not, you
know – they would never hire someone for that” (id. at 53).
E. Vocational Expert’s Testimony
The vocational expert (VE) testified that a hypothetical individual of Plaintiff’s age,
educational background, and work history, with an RFC for light work, with the additional
limitations of no more than occasional bending and twisting, no lifting or carrying of more than
five pounds with the left non-dominant upper extremity when used individually, and no reaching
upward above shoulder level, in an indoor environment with no concentrated exposure to dust,
fumes, strong odors, temperature or humidity extremes, and no exposure to unprotected heights
or dangerous machinery, could perform jobs as a hand sewer (DOT # 788.684-054), a cashier
(DOT #211.462-010, and an usher/ticket taker (DOT #344.677-014) (id. at 60-61).
The ALJ’s Decision
To determine whether Plaintiff was disabled, the ALJ conducted the five-part analysis
required by the regulations. At the first step, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since his alleged onset date (id. at 15). At the second step, the ALJ
found that Plaintiff had severe impairments consisting of: history of labral tear and rotator cuff
injury to the left shoulder, with some residual symptoms status post two surgical interventions;
history of obstructive airway disorder; and more recent onset of ulnar neuropathy affecting the
ring and small fingers of the left, non-dominant hand (id.). The ALJ found that Plaintiff’s
depression and anxiety were not severe (id.). At step three, the ALJ found that Plaintiff did not
have an impairment or combination of impairments that met or medically equaled the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (id. at 17). Before
proceeding to steps four and five, the ALJ found that Plaintiff had the RFC to “perform light
work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) 6 except he can perform no more than
occasional bending and twisting. His left, non-dominant upper extremity is limited to lifting and
carrying no more than 5 pounds – to the extent it is used individually, and to no upward reaching
beyond a point at which his left arm would be parallel to the ground. He is limited to work that
is done indoors, with no concentrated exposure to dust, fumes, strong odors, temperature or
humidity extremes. Due to medication side-effects, he should avoid exposure to unprotected
heights and dangerous machinery” (id. at 17) (footnotes omitted). At step four, the ALJ
determined that Plaintiff was unable to perform any past relevant work (id. at 20-21). At step
five, relying on the testimony of an independent vocational expert, the ALJ determined that
Plaintiff could perform jobs found in significant numbers in the national economy taking into
account Plaintiff’s age, education, work experience, and RFC, and, therefore, Plaintiff was not
disabled (id. at 21-22).
A. The ALJ Did Not Err
Plaintiff’s sole argument on appeal is that the ALJ erred by not finding his depression and
anxiety to be severe impairments. As set forth above, step two of the sequential evaluation
process requires the Commissioner to determine whether a claimant possesses a severe
impairment. See 20 C.F.R. § 416.920(a)(4)(ii); 20 C.F.R. § 404.1520(a)(4)(ii). It is not enough
for a plaintiff to be diagnosed with an impairment. Grady v. Astrue, 894 F. Supp. 2d 131, 141
(D. Mass. 2012). “A mere diagnosis of a condition ‘says nothing about the severity of the
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking and standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567
(b); 20 C.F.R. § 416.967(b).
condition.’” White v. Astrue, No. 10-10021-PBS, 2011 WL 736805, at *6 (D. Mass. Feb. 23,
2011) (quoting Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)). For an impairment to be
“severe,” a plaintiff must provide evidence that it significantly limits his or her physical or
mental ability to perform basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c). To
evaluate the severity of a mental impairment, an ALJ must follow the special technique set forth
in the regulations. 20 C.F.R. §§ 404.1520a, 416.920a. Once a medically determinable
impairment has been found, an ALJ must evaluate the claimant in four areas of mental
functioning, including: (1) activities of daily living; (2) social functioning; (3) concentration,
persistence, or pace; and (4) episodes of decompensation. Id. at §§ 404.1520a(c)(3),
416.920a(c)(3); see also Figueroa-Rodriquez v. Sec'y of Health & Human Servs., 845 F.2d 370,
372 (1st Cir. 1988) (describing the special technique); Guyton v. Apfel, 20 F. Supp. 2d 156, 165
(D. Mass. 1998) (same). The first three functional areas are ranked on a five-point scale
consisting of none, mild, moderate, marked, and extreme, and the fourth functional area utilizes a
four-point scale consisting of none, one or two, three, and four or more. 20 C.F.R. §§
404.1520a(c)(4), 416.920a(c)(4). If the claimant has no or mild limitations in the first three
functional areas and no episodes of decompensation, an ALJ will generally conclude that the
claimant’s mental impairment is not severe, “unless the evidence otherwise indicates that there is
more than a minimal limitation in [the claimant’s] ability to do basic work activities ….” Id. at
§§ 404.1520a(d)(1), 416.920a(d)(1).
Here, the ALJ determined that Plaintiff’s anxiety and depression imposed no significant
work-related limitations and, thus, were not severe impairments (A.R. at 15). In reaching this
conclusion, the ALJ followed the special technique required by the regulations and found that
Plaintiff had no limitation in the activities of daily living, mild limitation in maintaining social
functioning, mild limitation in maintaining concentration, persistence, and pace, and no episodes
of decompensation (id. at 16-17). As the ALJ noted, his ratings conflicted with those of the state
agency psychologists with respect to two of the functional areas. Specifically, the state agency
psychologists assessed Plaintiff as having mild restriction of the activities of daily living and
moderate difficulties in maintaining concentration, persistence, and pace (id. at 70, 94). Despite
this discrepancy, there is substantial evidence in the record to support the ALJ’s findings.
According to Plaintiff’s own testimony, as observed by the ALJ, Plaintiff conducted a
number of daily activities without difficulty attributable to his anxiety or depression, including
doing the dishes and laundry, driving, and accompanying his girlfriend to the grocery store on
occasion (id. at 16, 46-47, 49). 7 Plaintiff also testified that he helped his elderly parents by
taking out their trash once a week and cleaning their basement (id. at 46-47, 54). Plaintiff’s
testimony was consistent, again as observed by the ALJ, with the notes from Dr. Martin,
Plaintiff’s treating psychologist, describing Plaintiff’s activities of daily living as “fair” and
“good” in October and December 2013, respectively (id. at 16, 518-19, 520-21). It was also
consistent with Plaintiff’s report to Dr. Kim in January 2013 that he owned his own car and
drove it, managed his own finances, and did his own shopping, as well as Plaintiff’s statements
in the Function Report he completed in April 2012 that he handled his own personal care,
prepared his own meals, cleaned his house, did his laundry, did his shopping, and handled his
finances (id. at 234-37, 549). Thus, there is substantial evidence in the record that, as found by
the ALJ, Plaintiff had no restriction of his activities of daily living.
Indeed, the ALJ found that Plaintiff “is able to do all activities of daily living other than
cooking, which his girlfriend does …” (id. at 16). Plaintiff did testify that his girlfriend cooked
for the two of them, but he attributed this to her liking to do the cooking rather than an inability
on his part to cook (id.).
With respect to concentration, persistence, and pace, Plaintiff reported in checkbox form
on the Function Report that he had some concentration problems (id. at 238). However, he
stated in the same document that he could pay attention “for a long time,” and that he completed
the things he started (id.). Moreover, as the ALJ noted, Dr. Hutt reported in November 2011 that
Plaintiff’s attentional capacity was only mildly impaired, that he was functioning broadly in the
average range of adult intellectual functioning, and that he exhibited no indications of impaired
memory (id. at 17, 495). Dr. Hutt’s statements are consistent with Dr. Kim’s observations in
conjunction with his January 2013 psychological evaluation that Plaintiff complied with
instructions and completed testing protocols within the allotted time, as well as the results of the
testing that showed Plaintiff was in the high average range for verbal comprehension, the
average range for perceptual reasoning, working memory, and full scale IQ, and the low average
range for processing speed (id. at 549-550). Also consistent are Dr. Martin’s notes that
Plaintiff’s concentration, memory and judgment were all fair in October and December 2013 (id.
at 518-19, 520-21). 8 Thus, there is substantial evidence in the record that Plaintiff had no more
than mild limitations in maintaining concentration, persistence, and pace. While the record
arguably could support a finding of greater limitation, resolving conflicts in and drawing
conclusions from the evidence are the province of the ALJ and not the court. Irlanda Ortiz, 955
F.2d at 769. The ALJ’s findings must be upheld as long as they are supported by substantial
evidence and that standard is met here. 9 Ward, 211 F.3d at 655 (citing Nguyen, 172 F.3d at 35).
Additionally, as the ALJ noted, Dr. Hutt and Dr. Martin assigned Plaintiff GAF scores from 65
to 75, representing “no more than mild functional impairment (id. at 17, 495, 501, 520).
The court also rejects Plaintiff’s argument that the ALJ impermissibly ignored medical
evidence and substituted his own view for uncontroverted medical opinion as prohibited by Rose
v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994). In Rose, the ALJ found it “possible” that the claimant
had Chronic Fatigue Syndrome (CFS), while the uncontroverted medical opinion established that
B. Even if the ALJ Erred, the Error Would Be Harmless
As discussed, the ALJ’s ratings of Plaintiff’s functional limitations diverged from the
ratings assessed by the state agency psychologists only with respect to the functional areas of
activities of daily living and maintaining concentration persistence and pace. Where the ALJ
assessed no limitation in the activities of daily living, the state agency psychologists assessed
mild limitation. Where the ALJ assessed mild limitation in maintaining concentration,
persistence, and pace, the state agency psychologists assessed moderate limitation. Assuming
for the sake of argument that the ALJ erred in not finding that Plaintiff was mildly limited in
activities of daily living, the ALJ’s conclusion that Plaintiff’s mental impairments were not
severe would remain sound. 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1) (providing that if the
claimant has no or mild limitations in the first three functional areas and no episodes of
decompensation, an ALJ will generally conclude that the claimant’s mental impairment is not
severe). Assuming the ALJ erred in not finding that Plaintiff was moderately restricted in
concentration, persistence, and pace, which would generally merit a finding of severe, the error
would be harmless. While the ALJ did not limit Plaintiff to simple tasks in his RFC, the
positions the VE identified – hand sewer, small parts assembler, and usher/ticket taker – involve
simple tasks (id. at 60-61). The Dictionary of Occupational Titles (DOT) provides that all three
have a reasoning level of two, corresponding to “[a]pply[ing] commonsense understanding to
carry out detailed but uninvolved written or oral instructions,” and “[d]eal[ing] with problems
involving a few concrete variables in or from standardized situations.” 10 Courts regularly have
the claimant had CFS. Id. Here, the ALJ did not reject Plaintiff’s diagnoses of anxiety and
depression; he simply found that they were not severe.
The hand sewer job corresponds to DOT # 788.684-154, available at 1991 WL 681147; the
small parts assembler job corresponds to DOT # 706.684-022, available at 1991 WL 679050; the
usher/ticket taker job corresponds to DOT # 344.677-014, available at 1991 WL 672865.
found that DOT reasoning levels two and three are consistent with an RFC limitation to simple
and unskilled tasks. See Augur v. Astrue, 792 F. Supp. 2d 92, 96-7 (D. Mass. 2011); Lafrennie v.
Astrue, No. 09-40143-FDS, 2011 WL 1103278, at *7-8 (D. Mass. Mar. 23, 2011). The VE
testified that those jobs exist in significant numbers locally and nationally, satisfying the
Commissioner’s burden at step five. See, e.g., Aho v. Comm’r of Social Security Admin., No. 1040052-FDS, 2011 WL 3511518, at *8 (D. Mass. Aug. 10, 2011). Thus, even if the ALJ should
have imposed a mental RFC limitation to simple and unskilled work, Plaintiff would still be
found not disabled at step five, and there is no basis for remand. Ward v. Comm’r of Social
Security, 211 F.3d 652, 656 (1st Cir. 2000) (citing Dantran, Inc. v. United States Dep’t of Labor,
171 F.3d 58, 73 (1st Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) (“[A] remand
is not essential if it will amount to no more than an empty exercise.”).
For the reasons stated, Plaintiff’s motion for judgment on the pleadings (Dkt. No. 13) IS
DENIED, and the Commissioner’s motion for an order affirming the decision (Dkt. No. 17) IS
It is so ordered.
/s/ Katherine A. Robertson____
KATHERINE A. ROBERTSON
United States Magistrate Judge
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