United States District Court, D. Connecticut
DANIEL S. NELSON, Plaintiff,
NANCY A. BERRYHILL, Acting Comm'r, Social Security Administration, Defendant.
RULING AND ORDER ON PENDING MOTIONS
A. BOLDEN UNITED STATES DISTRICT JUDGE
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.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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.
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.”).
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.”).
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,
anxiety, and heart condition. Transcript of Oral Hearing
(Dec. 7, 2016), Tr. 37, 45; see also Tr. 61, 67, 76,
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.
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.
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.
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.
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.
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.
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.
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
determined that Mr. Nelson's last insured date was
December 31, 2015. ALJ Decision, Tr. 18.
One, the ALJ determined that Mr. Nelson had not engaged in
substantial gainful activity since May 15, 2013. Tr. 20.
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.
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.
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.
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.
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.
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
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.
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 ...