Nelson v. Berryhill

          RULING AND ORDER ON PENDING MOTIONS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Daniel S. Nelson (“Plaintiff”) filed this administrative appeal under 42 U.S.C. § 405(g) and 1631(c)(3) against Nancy A. Berryhill, Acting Social Security Commissioner (“Defendant” or “Acting Commissioner”), seeking review of the Social Security Administration's (“SSA”) decision denying his claim for Social Security Disability (“SSDI”) and Supplemental Security Income Benefits (“SSI”). Complaint (“Compl.”), ECF No. 1; see also Pl. Mem. of Law in Supp. of Mot. for Order Reversing the Decision of the Comm'r (“Pl. Mem.”), ECF No. 20-1.

         The Acting Commissioner moves the Court to affirm her decision, Mot. to Affirm the Decision of the Comm'r (“Def. Mot. to Affirm”), ECF No. 22.

         For the reasons set forth below, the Court now DENIES Mr. Nelson's motion to reverse the decision of the Acting Commissioner, Pl. Mot. for Order Reversing the Decision of the Comm'r (“Pl. Mot. to Reverse”), ECF No. 20; and GRANTS the Acting Commissioner's motion to affirm her decision. Def. Mot. to Affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Background

         Born in 1965, Daniel Scott Nelson worked as a carpenter from 1983 to 2013. Transcript of the Administrative Record (“Tr.”), ECF No. 17, at 61, 71. Laid off in May 2013, Tr. 65, he then worked briefly as a retail store cashier in 2014, Tr. 54, 386-87, 455. Mr. Nelson initially filed for SSDI and SSI in the fall of 2014, claiming an onset of disability in May 2013. Pl. Mem at 1.

         Also, in the fall of 2014, Mr. Nelson reported left shoulder pain to his treating physician. Tr. 579. From then until early 2016, health care providers treated the shoulder with steroid injections, lidocaine treatments, and physical therapy. Tr. 564, 574. The treatments provided only temporary relief. See Susan K. Schroeder, PA-C, Note (July 29, 2015), Tr. 454, 574-75 (“He has gone to physical therapy. He has had a steroid injection that has provided him with transient relief, and I did discuss at length with him a surgical procedure.”).

         By early 2016, Mr. Nelson's SSDI/SSI application had been denied, reconsidered, and denied again. Pl. Mem. at 1, Tr. 102-112. On February 22, 2016, Mr. Nelson filed a request for a hearing before an administrative law judge (“ALJ”). Pl. Mem. at 1, Tr. 112.

         Seven days later, Mr. Nelson had shoulder surgery at Lawrence Memorial Hospital. Tr. 562 (“Procedures performed: Arthroscopy, left shoulder debridement, flap lesion, open acromioplasty, distal clavicle excision, open double row rotator cuff repair.”).

         Following surgery, Mr. Nelson completed approximately four months of physical therapy. Joseph E. Noonan, Jr., M.D., Note (July 18, 2016), Tr. 561. Those treatments proved effective. Id. (“On examination today, his wound is in good repair . . . . There is symmetrical external rotation passively in neutral and he internally rotates quite well at the back. The patient was tested in resisted external rotation with minimal pain associated, certainly less than his previous visit and there is no tenderness associated with resisted internal rotation.”).

         On December 7, 2016, an ALJ heard Mr. Nelson's Social Security case. Pl. Mem. at 1, Tr. 35. At that hearing, Mr. Nelson testified about his shoulder injury, schizophrenia, ^[1] anxiety, and heart condition. Transcript of Oral Hearing (Dec. 7, 2016), Tr. 37, 45; see also Tr. 61, 67, 76, 90.

         Mr. Nelson testified about having shoulder problems since the summer or fall of 2014, pursuing treatment with his primary care physical and physical therapists for a year, and seeing a specialist in the summer of 2015. Tr. 51. He explained that the surgery had enabled him to reach above his head (e.g., to get medicine off the top of the refrigerator), but not to lift heavy items from that height. Tr. 40. Mr. Nelson testified that he could carry twenty-five to thirty pounds. Tr. 39.

         Mr. Nelson also testified that he gets anxious when leaving the house and only leaves the house once or twice a week, but can force himself to do the things he needs to do (e.g., going to the grocery store), Tr. 44-46. Mr. Nelson reported problems interacting with co-workers and supervisors that allegedly have worsened with age. Tr. 47. He testified to being able to care for himself (e.g., making meals for himself). Tr. 50.

         The ALJ also heard from a vocational expert who holds a Master's degree in Rehabilitation Counseling. Resume of Vocational Expert, Tr. 260-61. He testified that Mr. Nelson's prior work as a carpenter was medium and skilled, while his work as a cashier was light and semi-skilled. Tr. 53-54.

         The ALJ asked the vocational expert to consider a hypothetical person of Ms. Nelson's age, education level, and past relevant work, who could lift and carry twenty-five to thirty pounds, but would have problems with repetitive reaching and the lifting of items of more than five pounds on the left side, who also has problems with crowds, stress outside the home, long-term memory, concentration when he lacks interest, and might not be able to perform complex tasks for eight hours a day, five days a week. Tr. 53-54. The vocational expert testified that no jobs would exist for such a person. Tr. 54.

         The ALJ then suggested lifting and carrying capabilities of fifty pounds occasionally and twenty-five pounds frequently with occasional left arm overhead reaching, and specified that the person would have an ability to do simple, routine, repetitive tasks on a sustained basis over an eight hour work day in a stable work environment with no close interpersonal interactions with supervisors or co-workers and no interactions with the public. Tr. 55. The vocational expert testified that such a person would be able to do machine tender work at a medium level, of which there were 600 jobs in Connecticut and 80, 000 nationally. Tr. 56, as well as packaging jobs and some cleaning positions, id.

         The ALJ asked the vocational expert to consider only light jobs for such a person. Tr. 56. The vocational expert testified that light jobs included unskilled packaging, machine operation, and cleaning positions. Tr. 56.

         The ALJ then asked the vocational expert how long such a person would have to stay on task to remain employed, Tr. 57; the vocational expert estimated that the person would need to stay on task ninety percent of the day, id.

         On January 6, 2017, the ALJ determined that Mr. Nelson was not disabled from May 15, 2013 until January 6, 2017. Notice of Decision - Unfavorable (“ALJ Decision”), Tr. at 15-29.

         The ALJ determined that Mr. Nelson's last insured date was December 31, 2015. ALJ Decision, Tr. 18.

         At Step One, the ALJ determined that Mr. Nelson had not engaged in substantial gainful activity since May 15, 2013. Tr. 20.

         At Step Two, the ALJ determined that Mr. Nelson had two severe impairments: “status post left shoulder arthroscopic surgery in February 2016 and schizophrenia (20 CFR 404.1520(c) and 416.920(c)).” Tr. 20.

         At Step Three, the ALJ found that Mr. Nelson “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926), ” Tr. 21, and that Mr. Nelson has the residual functional capacity to perform medium work with certain limitations, including only occasionally reaching in front, laterally, or overhead with the left arm. Tr. 22.

         The ALJ found that Mr. Nelson had musculoskeletal impairments but not an “extreme” limitation of his fine and gross movements, Tr. 21, and that the medical evidence suggested that he could perform medium work with left-side accommodations. Tr. 23. The ALJ based these findings, in part, on Mr. Nelson's ability to carry out activities of daily living. Id.

         The ALJ acknowledged that, before surgery, Mr. Nelson “showed pain with range of motion, limited strength, and a positive impingement sign in [his] left shoulder.” Tr. 24. The ALJ considered the July 2015 MRI, which revealed “diffuse supraspinatus tendinopathy, mild infraspinatus tendinopathy, and a partial tear, possibly as great as 50%.” Tr. 24.

         The ALJ afforded some weight to Dr. Herbert Reiher's April 2015 conclusion that Mr. Nelson had “only limited range of motion in [his] left shoulder” and “could only occasionally lift 20 pounds throughout a workday, ” Tr. 24, because Dr. Reiher's lifting restriction “appears to be based on the claimant's own reported limitations. Dr. Reiher, however, did not specify the degree of manipulate limitation the claimant would have.” Tr. 24-25. The ALJ then afforded full weight to the 2015 state agency physicians' assessments that Mr. Nelson could perform medium exertional work. Tr. 25, 27; Def. Mem. in Supp. of Mot. to Affirm (“Def. Mem.”), ECF No. 22-1, at 6. The ALJ concluded that “even based upon the limitations suggested by Dr. Reiher the significant number of light representative positions enumerated by the impartial vocational expert could be performed.” Tr. 25.

         Following surgery, the ALJ determined that Mr. Nelson experienced “minimal pain” and “reported only mild pain with overhead reaching, but otherwise no pain in his left shoulder.” Id.

         The ALJ found that Mr. Nelson's mental impairments “cause mild restrictions in his activities of daily living; moderate difficulties in social functioning; moderate difficulties in maintaining concentration . . . and no episodes of decompensation.” Tr. 22. The ALJ considered 2013 and 2014 therapy notes, which were “largely unremarkable with normal mental status examinations, and few, if any complaints.” Tr. 25. He noted that 2015 and 2016 treatment notes showed some anxiety, nervousness, increased isolation, and difficulty with finances. Tr. 25.

         The ALJ also considered the opinion of treating physician Dr. Rajesh C. Parekh. Tr. 26. Dr. Parekh gave Mr. Nelson a global assessment of functioning (“GAF”) of 59, and indicated that he would not be able to concentrate for extended periods or travel to unfamiliar places for 10% of the workday. Tr. 26. The ALJ gave little weight to Dr. Parekh's opinion because “[i]t is unclear why Dr. Parekh indicated that many areas of functioning did not apply [and] the opinion that the claimant would have difficulty concentrating for more than 10% of the workday is not supported by the evidence of ...