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Blackette v. Colvin

United States District Court, D. Massachusetts

September 25, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

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[Copyrighted Material Omitted]

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For Suzanna E. Blackette, Plaintiff: Ronald B. Eskin, Law Office of Ronald B. Eskin, PC, Lowell, MA.

For Carolyn Colvin, in her official capacity as Acting Commissioner of the Social Security Administration, Defendant: Rayford A. Farquhar, LEAD ATTORNEY, United States Attorney's Office, John Joseph Moakley Federal Courthouse, Boston, MA.

For Social Security Administration, Interested Party: Thomas D. Ramsey, LEAD ATTORNEY, Office of the General Counsel, Social Security Administration, Boston, MA.

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In this action, Suzanna E. Blackette (" Blackette" ) appeals the decision of the Social Security Commissioner (the " Commissioner" or the " Agency" ) denying her application for Social Security Disability and Supplemental Security Income benefits. This Court has jurisdiction pursuant to 42 U.S.C. section 405(g). Blackette challenges the determination of the presiding Administrative Law Judge (the " hearing officer" ) that she was not disabled within the meaning of the relevant statutory provisions.

A. Procedural Posture

In early 2009, Blackette filed two applications for benefits under the Social Security Act: the first, on February 19, 2009, for disability insurance benefits under Title II, and the second, on March 10, 2009, for supplementary security income under Title XVI. Administrative R. (" Admin. R." )

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80, 1195.[1] The claims were initially denied in late 2009, see id. at 34, 1205, and were then denied a second time in 2010 after a motion for reconsideration, see id. at 17. Blackette requested a hearing on July 14, 2011, id. at 42, which was conducted on August 21, 2012, id. at 17. The hearing officer concluded that Blackette was not disabled in a written decision issued on September 10, 2012. Id. at 17, 31. Blackette administratively appealed her case to the Agency's Appeals Council, which denied her appeal in May 2013. Id. at 10.

Accordingly, on June 28, 2013, Blackette timely filed this appeal in federal district court. See Compl., ECF No. 1. On October 9, 2013, after the administrative record was produced, she moved to remand this case to the Agency. Pl.'s Mot. Remand Decision Acting Comm'r Social Sec. Admin., ECF No. 13; Pl.'s Am. Mem. Law Supp. Mot. Remand Decision Acting Comm'r Social Sec. Admin. (" Pl.'s Mem." ), ECF No. 18. The Agency, in turn, moved for an order affirming the decision of the Commissioner on February 24, 2014. Def.'s Mot. Order Affirming Decision Comm'r, ECF No. 25; Mem. Law Supp. Mot. Order Affirming Comm'r's Decision (" Def.'s Mem." ), ECF No. 26. Blackette replied on March 4, 2014. Reply Mem. (" Pl.'s Reply" ), ECF No. 27.

B. Facts and Medical History

The relevant factual history is briefly described here. In order to preserve the privacy of the parties involved, facts not necessary to this Court's decision, though they were considered, are not discussed in this opinion.

1. Accident and Immediate Post-Accident Hospitalization

On December 31, 2004, Blackette, then nineteen years old, was involved in a high-speed car accident. Admin. R. 572. She was brought to the University of Massachusetts (" UMass" ) Medical Center's emergency room, where she was diagnosed with a skull fracture and brain hemorrhaging. See id. She underwent extensive treatment over the next six weeks, including surgery to repair her skull fracture. Id. On February 15, 2005, she was discharged from UMass and admitted to Spaulding Rehabilitation Hospital. Id. at 209. On admission to Spaulding, she was " aware and alert," although she was " unable to know the President, [and] could not name month or date." Id. After beginning rehabilitation activities, however, " she made consistent excellent gains with respect to agitation, cognition, and orientation." Id. at 210. She was discharged on March 3, 2005, and she returned home, where she was placed under 24-hour supervision. Id. at 212. Upon discharge, her treating physician, Dr. Heechin Chae, M.D., reported that a " [n]europsychology evaluation shows significant frontal lobe syndrome, mostly with slowness of processing speech and memory difficulty with difficulty of arithmetic solution. The patient is an excellent candidate to continue to improve." Id.

Over the next several years, Blackette underwent a series of medical treatments and evaluations.

2. Dr. Neiman Evaluation (April & May 2005)

Early in her rehabilitation, Blackette was examined on April 5, 2005, and again on May 3, 2005, by Dr. Beth Neiman, Ph.D., a consulting neuropsychologist. Id. at 310. Dr. Neiman reported that Blackette's " language was generally fluent," and she " worked for two hours without asking for or accepting the evaluator's offer to take a break." Id. at 311. She did note

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that Blackette's mother had reported that her daughter " currently demonstrates memory difficulties." Id. at 310. Dr. Neiman then summarized the results of her testing as follows:

Evaluation results shows [Blackette] to be demonstrating a profile of intact skills on tasks of visual conceptual problem solving, visual abstract reasoning, and executive functioning. She demonstrates evidence of significant cognitive slowing on tasks of mental control and sustained attention. She demonstrates functional skills on tasks of immediate auditory recall, delayed auditory memory, auditory recognition, and visual motor integration, with significantly impaired visual recall and delayed visual memory. She demonstrates moderately to severely impaired verbal fluency skills.
Results suggest that [Blackette] is at risk to experience episodes of mental fatigue and cognitive confusion when attempting complex cognitive tasks, given the slowing of her information processing speed and the intensity of attention necessary to achieve a high level of success.

Id. at 313-14. She then recommended " extensive educational support[] to achieve academic success," as well as speech, language, and cognitive rehabilitation therapy. Id. at 314.

3. Dr. Swearer Evaluation (November 2007)

Blackette's next evaluation was conducted on November 13, 2007, by Dr. Joan M. Swearer, Ph.D., a neuropsychologist. Id. at 770, 776. Dr. Swearer summarized her test results by concluding that:

[Blackette]'s general intellectual abilities were estimated to be in the average range. Verbal and nonverbal abilities were at similar functional levels, but with significant scatter among subtest scores (e.g., high average vocabulary versus low average immediate memory span). Her memory and ability to learn new information were variable with average recall and retention of prose material. Immediate recall of a supraspan word list after 5 learning trials was within normal limits, however, an interference list had a significant negative impact on immediate and delayed recall of the original list (impaired). A recognition format did not appreciably enhance her performance. Immediate and delayed recall of visual material were impaired. Confrontation naming was impaired for age and educational background. Otherwise expressive and receptive language functions were grossly intact on exam. Visuospatial and visuoconstructive abilities were variable (average to impaired). She had difficulties on complex working memory/memory tracking tasks, and sustained and divided attention. Fine manual dexterity was slowed for both right and left hands. She endorsed a significant degree of emotional and psychological distress on a self-report inventory.

Id. at 774-75. Dr. Swearer did, however, note that Blackette " has made remarkable recovery" from her accident, though she has " residual cognitive deficits in attention, memory, executive functions, emotional processing, and feelings of depression." Id. at 775. She recommended that Blackette commence a course of cognitive rehabilitative therapy. Id.

4. Dr. Perlman Evaluation (July 2009)

On July 22, 2009, Blackette was evaluated by Dr. Jon Perlman, Ed.D., who conducted a residual function evaluation to determine the presence and extent of her potential disability. Id. at 460. He filled out a Social Security Administration Form SSA-2506-BK, where he indicated that

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she met Social Security Disability Listing 12.02 A & B, based on organic mental disorders and affective disorders. Id. Dr. Perlman also diagnosed her with a depressive disorder not otherwise specified. Id. at 463. He also considered Blackette's functional limitations, noting that she had moderate restriction of activities of daily living, but marked difficulties in maintaining social functioning and maintaining concentration, persistence, or pace. Id. at 470. In his notes section, Dr. Perlman reported that: " [t]he neuropsychological evaluation on [November 13, 2007, by Dr. Swearer] showed significant improvement from previous evaluations. However this most recent neuropsychological evaluation showed continued cognitive deficits in attention, memory, executive functions, emotional processing and depression." Id. at 472. It is unclear, however, whether Dr. Perlman's reference to " this most recent neuropsychological evaluation" refers to the evaluation he conducted, or to the 2007 evaluation conducted by Dr. Swearer.

5. Dr. Kresser Evaluation (August 2009)

Dr. Perlman's functional finding was reviewed by Dr. Paula Kresser, Ph.D., who concluded that it was not supported by the medical evidence. See id. at 478-89. Dr. Kresser first summarized Blackette's self-report on her own functioning, stating that:

[Blackette] volunteers in a kindergarten, substitute teaches, and visits with others. Claimant takes care of her pets. She indicates that she used to read faster, have a better memory, and have a faster processing speed. She wakes up every few hours. She prepares food and does household chores. She can drive and goes out daily. She shops. She manages money but sometimes needs reminders to finish the job and assistance balancing her check book. She socializes in person, online, and by phone. She can only pay attention for 15 minutes. She does pretty well with written instructions but needs extra time to process and repetition for spoken instructions. She fears noises and driving fast and anything that reminds her of her accident.

Id. at 477. Dr. Kresser did report that while Blackette had worked two summers as a camp counselor, " [s]he was unable to find another job when the summer ended." Id.

Dr. Kresser then indicated that it was " unclear" to her how Dr. Perlman had concluded that Blackette had marked difficulties in social functioning. Id. at 478. She noted that Blackette's " adult functioning report indicates that she socializes on line, by phone, and in person. She goes to church and sign language group. She gets along with others unless her core values are challenged." Id. Turning to the second " marked difficulty" area identified by Dr. Perlman, she concluded that:

[The e]vidence does not indicate[] more than moderate limitation with concentration, persistence, or pace at least for non complex activities as represented by scores of 74 in processing speed. Although [Blackette] has low visual memory scores, it does not represent deficits of more than a moderate ...

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