Allen v. Colvin

Filing 18

District Judge Timothy S. Hillman: MEMORANDUM OF DECISION AND ORDER entered denying 12 Motion for Judgment on the Pleadings and granting 16 Motion for Order Affirming Decision of Commissioner. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_________________________________________
)
JOANNE M. ALLEN,
)
Plaintiff,
)
)
v.
)
)
1
NANCY A. BERRYHILL,
)
Acting Commissioner of Social Security
)
Administration,
)
)
Defendant.
)
_________________________________________ )

CIVIL ACTION
NO. 16-40058-TSH

MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR JUDGMENT ON
THE PLEADINGS (Docket No. 12) AND DEFENDANT’S MOTION TO AFFIRM
THE COMMISSIONER’S DECISION (Docket No. 16)
September 29, 2017
HILLMAN, D.J.
This is an action for judicial review of a final decision by the Commissioner of the Social
Security Administration (the “Commissioner” or “SSA”) denying the application of Joanne Allen
(“Plaintiff”) for Social Security Disability Insurance Benefits. Plaintiff filed a motion for
judgment on the pleadings (Docket No. 12) seeking a reversal of the Commissioner’s decision.
The Commissioner filed a cross-motion seeking an order affirming the decision of the
Commissioner (Docket No. 16).2 For the reasons set forth below, Defendant’s motion is granted
and Plaintiff’s motion is denied.

1

Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23, 2017,
replacing Carolyn W. Colvin. See Fed. R. Civ. P. 25(d).
2
A transcript of the Social Security Administration Official Record (“AR.”) has been filed with the court under seal.
(Docket No. 11). Citations to the AR page numbers are those assigned by the agency and appear on the lower right
hand corner of each page.

Discussion
The parties are familiar with the factual history of this case, the standard of review, and
the applicable five-step sequential analysis. Accordingly, the court will review the procedural
and substantive history of the case as it relates to the arguments set forth by the Plaintiff.
Plaintiff filed an application for disability benefits (DIB) on April 10, 2013, alleging
disability as of August 1, 2002 (AR. 483-86). The application was denied initially (AR. 402-09,
419-22), and on reconsideration (AR. 410-18, 425-27), and Plaintiff requested a hearing with an
ALJ (AR. 428-29). On September 15, 2014, ALJ Addison C.S. Masengill held a hearing at
which Plaintiff, represented by counsel, appeared and testified (AR. 364-401). Plaintiff’s
husband testified in support of her application, and an independent vocational expert also
appeared and testified (AR. 364-401). The ALJ issued a decision on November 21, 2014, finding
that Plaintiff was not disabled at any time relevant to the decision (AR. 136-52). On March 18,
2016, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the
final decision of the Commissioner of Social Security (AR. 1-7). This case is now ripe for review
under 42 U.S.C. § 405(g).
The ALJ’s Findings
At step one in his decision, the ALJ found that Plaintiff had not engaged in substantial
gainful activity between her alleged onset date of August 1, 2002, and her date last insured of
September 30, 2008. (AR. 141). At step two, the ALJ found that Plaintiff had severe
impairments of diabetes mellitus, obesity, hypertension, high cholesterol, peripheral neuropathy,
right elbow pain tendonitis, plantar fasciitis with some neuropathy, heel pain, bursitis, and
tendonitis (AR. 141-42). At step three, the ALJ found that Plaintiff’s impairments did not meet
or medically equal any listed impairments (AR. 142). Prior to proceeding to step four, the ALJ
found that Plaintiff had the residual functional capacity (RFC) to perform light work as defined
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in 20 C.F.R. § 404.1567(b), except that she was limited to only four hours of standing and
walking in an eight-hour day; could not use any foot or leg controls; would need to avoid
exposure to heights, ladders, ropes, and scaffolding; and was further limited to no more than
incidental exposure to extremes of cold and vibration (AR. 142-47). At step four, the ALJ relied
on testimony from a vocational expert (VE) in finding that Plaintiff could perform her past
relevant work as a claims clerk (AR. 147). The ALJ thus found that Plaintiff was not disabled
(AR. 147).
In seeking to reverse the decision, Plaintiff first argues that the ALJ erred by not calling
on the services of a medical advisor to determine the onset date of her disabling impairments.
Second, Plaintiff argues that, in assessing the Plaintiff’s Residual Functional Capacity (RFC), the
ALJ did not take into account all of Plaintiff’s severe impairments in assessing more limitations.
Whether the ALJ Was Required to Call on the Services of a Medical Advisor
Plaintiff asserts that based on the medical evidence in the record, it could be reasonably
inferred that the onset of her disabling condition occurred prior to the date last insured. She then
argues that if the ALJ did not find sufficient proof of such a disabling condition in the medical
record, in accordance with Social Security Ruling (“SSR”) 83-207, he should have called on the
services of a medical advisor. The Respondent argues that because the ALJ did not find that
Plaintiff was disabled at any point during the insured period, he was not required to obtain
medical expert testimony.
Pursuant to SSR 83-20, where Commissioner has determined the claimant is disabled, the
ALJ must establish the onset of the disability. See SSR 83–20, 1983 WL 31249, at *1
(S.S.A.1983).
In some cases, it may be possible, based on the medical evidence to reasonably infer that
the onset of a disabling impairment(s) occurred some time prior to the date of the first
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recorded medical examination, e.g., the date the claimant stopped working. How long the
disease may be determined to have existed at a disabling level of severity depends on an
informed judgment of the facts in the particular case. This judgment, however, must have
a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call
on the services of a medical advisor when onset must be inferred. If there is information
in the file indicating that additional medical evidence concerning onset is available, such
evidence should be secured before inferences are made.
Id., at *3.
Plaintiff’s claim fails in the first instance because “[a]n ALJ is not required to consider
SSR 83–20 unless the ALJ first finds that the claimant was disabled at some point prior to the
date last insured.” Silverio v. Astrue, No. CIV.A. 10–40202–FDS, 2012 WL 996857, at *6
(D.Mass. Mar. 21, 2012). In this case, the ALJ determined that Plaintiff was not disabled during
the relevant period. However, even if I were to assume that SSR-83-20 applies, for the following
reasons Plaintiff’s argument fails.
Where the onset date must be inferred from the medical and other evidence describing the
history and symptomatology of the disease process, SSR 83–20 directs the ALJ to retain the
assistance of a medical advisor. See Mason v. Apfel, 2 F.Supp.2d 142, 150 (D.Mass. 1998). In
this case, the record evidence was unambiguous that Plaintiff was not disabled during the insured
period, that is, it was not necessary to infer an onset date.
State agency physicians such as Dr. Perel and Dr. McFee are medical specialists who are
experts in Social Security disability evaluation. 20 C.F.R. § 404.1527(e)(2)(i). Their opinions
must be considered by the ALJ as medical expert opinion evidence. Id. Both physicians reviewed
Plaintiff’s record and provided opinions regarding her residual functional capacity as of her date
last insured. The ALJ thus obtained evidence from two medical advisors regarding the issue of
whether her impairments were disabling as of her date last insured. In so doing, the ALJ relied
on precise medical evidence establishing that her impairments were not disabling on or before

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September 30, 2008. See Fischer v. Colvin, 831 F.3d 31, 36 (1st Cir. 2016) (diagnostic findings
supported ALJ’s determination that medical evidence showed claimant’s impairments were not
disabling prior to DLI). Therefore, it was not necessary for the ALJ to call on the services of a
medical advisor. See Silverio, 2012 WL 31249 (ALJ required to call on medical expert on after
first making a finding of disability; where ALJ found no objective support for finding of
disability during insured period, no medical expert was necessary).
Failure to Consider Severe Impairments in RFC Assessment
In her second argument, Plaintiff argues that the ALJ erred because he ignored medical
evidence and the opinions of state agency consulting physicians and did not assess more
limitations to her RFC to account for her severe impairments that the ALJ found at Step 2. The
Commissioner argues that the RFC is supported by substantial evidence.
In Plaintiff’s RFC finding, the ALJ limited Plaintiff to light work as defined in 20 C.F.R.
§ 404.1567(b), except she was limited to standing and walking for four hours in an eight-hour
workday (AR. 142). The ALJ additionally limited Plaintiff to no use of foot or leg controls, no
exposure to heights, ladders, ropes, and scaffolds, and no more than incidental exposure to
extremes of cold and vibration (AR. 142). In her argument, Plaintiff gives a full summary review
of her medical records, but fails to specify the limitations she claims that her impairments
require. The court is not inclined to do so for her. See Perez v. Colvin, 2014 WL 6905599, at *3
(D. Mass. Dec. 4, 2014), citing Carlton v. Social Sec. Admin. Com’r, No. 10–00463, 2011 WL
4433660, at *5 (D.Me. Sept. 21, 2011) (claimant has the burden to put forth the medical
evidence necessary to establish his impairments and the degree to which they limit his functional
capacity).

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From the record, it is clear that the ALJ determined Plaintiff’s RFC by considering all of
the medical evidence available to him and incorporated appropriate limitations based on those
conditions. It is left to an administrative law judge to resolve conflicts in evidence and, where
such determinations are supported by the record, they are to be affirmed. See Irlanda Ortiz v.
Secretary of Health and Human Serv., 955 F.2d 756, 769 (1991) (even if the administrative
record could support multiple conclusions, a court must uphold the Commissioner's findings “if a
reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to
support his conclusion.). Plaintiff has failed to identify any specific limitation that the ALJ
erroneously excluded from the RFC finding. Plaintiff has not me her burden of proving that her
limitations prevent her from returning to that past relevant work.

Conclusion
For the reasons set forth above, Plaintiff's Motion for Judgment on the Pleadings
Reversing Decision of the Commissioner (Docket No. 12) is denied and Defendant's Motion for
Order Affirming the Commissioner’s Decision (Docket No. 16) is granted.

SO ORDERED.
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
UNITED STATES DISTRICT JUDGE

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