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Lobov v. Colvin

United States District Court, D. Massachusetts

June 23, 2014

BRITT LOBOV, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner, Social Security Administration, Defendant.

REPORT AND RECOMMENDATION

DAVID H. HENNESSY, Magistrate Judge.

Pursuant to 28 U.S.C. ยง 636(b)(1)(B), and by Order of Reference (Docket #23), this matter was referred to me for a Report and Recommendation on Plaintiff Britt Lobov's Motion for Order Reversing the Decision of the Commissioner (Docket #15) and the Defendant's Motion to Affirm the Decision of the Commissioner (Docket #21). These motions are ripe for adjudication. For the reasons stated below, I recommend that Lobov's motion be DENIED and the Commissioner's motion be ALLOWED.

BACKGROUND

Lobov filed for Social Security Disability Insurance Benefits ("DIB") and Social Security Supplemental Security Income ("SSI") on April 29, 2009, alleging disability beginning October 4, 2007.[2] (Tr. 139-46).[3] The Social Security Administration ("SSA") originally denied Lobov's applications on November 19, 2009. (Tr. 73). Lobov filed a Request for Reconsideration but the SSA again denied her applications for DIB and SSI on June 16, 2010. (Tr. 77). Thereafter, Lobov requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 83).

An ALJ held a hearing on July 14, 2011. (Tr. 3). On September 16, 2011, the ALJ issued a decision denying benefits, finding that Lobov was not disabled. (Tr. 44-63). On October 6, 2011, a timely Request for Review of the Hearing Decision was filed with the Social Security's Appeals Council. (Tr. 33). On October 9, 2012, the Appeals Council denied Plaintiff's request for review and the September 2011 decision became the final decision of the Commissioner. (Tr. 26).

A. Personal, Educational, and Occupational History

Lobov was twenty-six years old on October 4, 2007, the date she claims she became disabled. (Tr. 141). She graduated from high school and completed at least six months of college. (Tr. 7). Her past relevant work includes employment as a home health aide, pizza maker, medical records clerk, mental retardation aide, automobile service station attendant, and dispatcher. (Tr. 18).

B. Medical History

On February 9, 2007, Lobov was involved in a motor vehicle accident and sustained a back injury. (Tr. 229). On October 23, 2008, Lobov visited UMass Memorial hospital and was treated by Dr. Said. (Tr. 224). Dr. Said diagnosed Lobov with morbid obesity. (Id.). With regard to her depression, Dr. Said observed that Lobov was doing "extremely well" and continued to participate in therapy at the Prescott Health Center, which continued through at least October 27, 2009. (Tr. 224, 315). Dr. Said prescribed Vicodin for Lobov's back pain. (Tr. 224).

On January 8, 2009, Lobov again visited Dr. Said, complaining of neck pain and lower back pain, hip pain, hand pain, and swelling of the hands. (Tr. 223). Lobov indicated that she had migraines that come every change of season, or about four times a year. (Id.). Dr. Said diagnosed her to be morbidly obese, and further opined that Lobov had very mild scoliosis and seasonal migraines, for which she was to see Dr. Markley. (Id.).

Lobov was evaluated by Dr. Charles Birbara, a rheumatologist, on February 18, 2009, for complaints of muscular and skeletal pains. (Tr. 258-60). Lobov reported pain in her left bicep and hands and swelling in her wrists. (Id.). Lobov also indicated that her back pain had progressively worsened and that she was very depressed. (Id.). Dr. Birbara diagnosed Lobov with hyper-mobility syndrome ("HMS"), obesity, fibromyalgia, suicidality, bipolar disorder, and a history of cocaine use with sobriety since October 2007. (Tr. 260).

On May 28, 2009, Dr. Mark Kaplan completed a Treating Physician Report based on his observations of Lobov in February 2009. (Tr. 275-76). Lobov complained of chronic low back and sacral pain with radiation to the hips that had been exacerbated by the motor vehicle accident in February 2007. (Id.). Dr. Kaplan found Lobov had limited spinal range of motion and it was his impression that most of her problems were the result of her morbid obesity. (Id.). Dr. Kaplan concluded that Lobov's obesity would preclude her from performing work at the light duty level because of the prolonged standing and walking requirements involved. (Tr. 276). However, Dr. Kaplan concluded that Lobov would be able to perform full-time sedentary work. (Id.).

On June 15, 2009, Dr. S. Ram Upadhyay, a Department of Developmental Services medical consultant, completed a physical residual functional capacity ("RFC") assessment of Lobov. (Tr. 281-88). Dr. Upadhyay indicated Lobov's back ailments, fibromyalgia, and her obesity as prior diagnoses or impairments. (Tr. 281). Dr. Upadhyay found that Lobov could occasionally lift twenty pounds and could frequently lift ten pounds. (Tr. 282). He also found that Lobov could stand and/or walk with normal breaks for a total of at least two hours in an eight-hour workday, that she could sit for about six hours in an eight-hour workday, and that she had an unlimited ability to push and/or pull. (Id.). With regards to postural limitations, Dr. Upadhyay found that Lobov could occasionally climb, balance, stoop, kneel, crouch, and crawl. (Tr. 283). Dr. Upadhyay found Lobov did not have any other limitations except avoiding concentrated exposure to hazards because of her lack of agility. (Tr. 283-85). On June 1, 2010, Dr. E. Montoya affirmed Dr. Upadhyay's physical RFC assessment. (Tr. 349).

Lobov saw Dr. C. Graham Campbell on October 8, 2009, and he performed a psychodiagnostic interview.[4] (Tr. 290-94). Dr. Campbell acknowledged Lobov's obesity, specifically noting that she stood 5'6" and weighed approximately 325 pounds. (Tr. 290). He found that Lobov was alert and responded to questions directly and logically. (Tr. 290-91). Lobov denied auditory and visual hallucinations or other symptoms of a formal thought disorder, her affect varied appropriately according to the topic being discussed, and she reported discrete episodes of intense anxiety with symptoms including heart pounding, difficulty breathing, tingling in the hands, shaking, and fear of death.[5] (Tr. 291). Dr. Campbell stated that "[i]f she is to become successfully employed her anxiety will need to be more aggressively treated than it is at this time." (Tr. 293). Dr. Campbell determined that Lobov's abstract reasoning was intact, her fund of knowledge was adequate, and she did not appear to have cognitive deficits. (Id.).

On November 12, 2009, Dr. Ginette Langer completed a psychiatric review technique form ("PRTF"), as well as a mental RFC assessment of Lobov. (Tr. 317-30). Dr. Langer found Lobov was mildly limited in daily activities; moderately limited in maintaining social functioning; moderately limited with maintaining concentration, persistence, or pace; and had no episodes of decompensation. (Tr. 327). Furthermore, Dr. Langer determined that Lobov did not have significant limitations with understanding or adaption. (Tr. 331-32). Specifically, Dr. Langer found that Lobov would be able to concentrate and maintain her attention for at least a two-hour time period, but was socially inappropriate[6] and would not be able to work with the general public. (Tr. 332, 333).

Dr. Imad Khreim, a psychiatrist, treated Lobov on several occasions. (Tr. 352-64). On February, 18, 2010, Dr. Khreim noted that Lobov was anxious, depressed, had nightmares of a violent nature that prevented her from sleeping, and she felt angry and sad at the same time. (Tr. 353). On numerous occasions, he indicated that Lobov seemed stable and alert and her mental status examinations were benign. (Tr. 352-64). Dr. Khreim continued to evaluate and treat Lobov over several visits, most recently on March 14, 2011. (Tr. 352).

Lobov completed a function report on March 16, 2010. (Tr. 187-94). Lobov indicated that she rarely socializes and sometimes remains in bed all day. (Tr. 187, 188). However, Lobov did report that she takes care of her cats, prepares her own meals, is able to do her own laundry, is able to shop for food and necessities, and is able to balance her finances. (Tr. 187-90). Lobov stated that she had difficulty with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, memory, completing tasks, concentration, and getting along with others, but did not complain of problems using her hands. (Tr. 192).

On May 20, 2010, medical consultant M. Berkowitz completed a mental RFC assessment of Lobov. (Tr. 339-46). Berkowitz found that Dr. Langer's conclusion that Lobov will not be able to work with the general public was inconsistent with the record. (Tr. 341). Berkowitz noted that, although Lobov has symptoms of panic and anxiety in social situations, she is able to go out in public alone, can use public transportation, and describes herself as only slightly agoraphobic. (Id.). Berkowitz concluded that Lobov appears capable of persisting at a range of simple tasks with no more than moderate public contact. (Id.).

On April 7, 2011, Lobov was examined by Dr. Hurwitz at UMass Memorial with complaints of dizziness, migraine headaches, and heartburn. (Tr. 422). Lobov reported that she experienced dizziness when walking downstairs and these episodes lasted for twenty to thirty seconds. (Id.). Lobov complained of migraine headaches, averaging two to three per week. (Id.). On May 5, 2011, Lobov followed up with UMass Memorial for her migraine headaches and dizziness. (Tr. 421). Lobov reported experiencing two to three "bad" headaches since her last visit but that her dizziness had improved. (Id.). Dr. Hurwitz prescribed Topamax for Lobov's migraines. (Id.).

On June 14, 2011, Lobov's mental health therapist, Nancy Vukmirovits, completed a PRTF and determined that Lobov met listings pursuant to 12.04 for affective disorders and 12.06 for anxiety disorders. (Tr. 444). She concluded that Lobov was extremely limited with activities of daily living; maintaining social functioning; and maintaining concentration, persistence, or pace; and had four or more episodes of decompensation. (Tr. 453). Furthermore, she found that Lobov developed a resistance to her medication quickly, the medication was ineffective, or she had significant side effects. (Tr. 454).

On June 15, 2011, Dr. William Crooks completed a Physical RFC Questionnaire on Lobov, pursuant to a request from Lobov's attorney so that it "may be used to support a Social Security Claim." (Tr. 456-61). Dr. Crooks noted that he had seen Lobov three times since May 2011, and diagnosed Lobov with fibromyalgia and depression, as well as a fair prognosis. (Tr. 457). According to Dr. Crooks, Lobov's impairments could be expected to last at least twelve months. (Id.). During a typical work day, Dr. Crooks found that Lobov's experience of pain or other symptoms would be severe enough to constantly interfere with the attention and concentration required to perform simple work tasks, and she would be incapable of even "low stress" jobs as a result of her chronic, constant, and diffuse pain. (Tr. 458).

With regards to her functional limitations, Dr. Crooks found that Lobov could not walk any city blocks without rest or experiencing severe pain. (Id.). In an eight-hour workday with normal breaks, Dr. Crooks determined that Lobov could sit and stand/walk for a total of less than two hours, and she would require unscheduled breaks every five to ten minutes lasting approximately two to three minutes before she could return to work. (Tr. 458-59). He opined that Lobov could rarely look down, turn her head right or left, look up, or hold her head in a static position. (Tr. 460). Dr. Crooks indicated that Lobov could never twist, stoop, crouch or squat, climb ladders, or climb stairs, and that she would miss more than four days of work per month. (Id.).

C. ALJ Hearing

At the July 14, 2011 hearing, the ALJ heard testimony from Lobov and a vocational expert. (Tr. 8-20). The ALJ questioned Lobov about her work history and the different tasks she performed. (Tr. 8-13). Lobov testified that she suffered from severe anxiety and had lost several friends due to her depression. (Tr. 15). Lobov testified that her panic attacks last anywhere from ten minutes to days. (Tr. 16). Lobov stated that she is "ok" for a few days, but then a "light switch" goes off in her brain and she will shut down. (Tr. 23). Lobov testified that she did not believe she could get to work on time and sometimes she will not leave her house for five, six, or seven days at a time. (Tr. 24).

Following Lobov's testimony, the ALJ asked a vocational expert for her assessment on the skill and exertional levels of Lobov's work history.[7] (Tr. 18). The ...


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