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Dias v. Colvin

United States District Court, D. Massachusetts

September 30, 2014

HEIDI DIAS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant

Page 271

For Heidi Dias, Plaintiff: Francis M. Jackson, LEAD ATTORNEY, PRO HAC VICE, Jackson & MacNichol, South Portland, ME; Marc D. Pepin, LEAD ATTORNEY, Jackson & MacNichol, South Portland, ME.

For Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, Defendant: Christine J. Wichers, LEAD ATTORNEY, United States Attorney's Office MA, Boston, MA.

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

Page 272

MEMORANDUM AND ORDER RE: MOTION TO REVERSE (DOCKET ENTRY # 17); DEFENDANT'S MOTION TO AFFIRM THE COMMISSIONER'S DECISION (DOCKET ENTRY # 21)

MARIANNE B. BOWLER, United States Magistrate Judge.

Pending before this court is a motion by plaintiff Heidi Dias (" plaintiff" ) seeking to reverse the decision of defendant Carolyn W. Colvin, Acting Commissioner of the Social Security Administration (the " Commissioner" ). (Docket Entry # 17). Defendant moves for an order affirming the decision. (Docket Entry # 21).

PROCEDURAL HISTORY

Plaintiff filed an application for supplemental security income (" SSI" ) on September 16, 2010. (Tr. 140-46). She alleged a disability due to " anorexia/depression/suicide attempts/panic attacks" and " drug addiction/on methadone." (Tr. 151, 155). The Social Security Administration interviewer that day did not observe that plaintiff had any visible sign of impairment or any perceived difficulty standing or walking. (Tr. 152).

Plaintiff's claim was denied on December 3, 2010, and again upon reconsideration on April 29, 2011. (Tr. 62, 71). On May 5, 2011, plaintiff requested a hearing before an Administrative Law Judge (" ALJ" ). (Tr. 74-75).

On February 28, 2012, the ALJ held a hearing on plaintiff's application for SSI. (Tr. 11, 22-59). On March 8, 2012, the ALJ issued an opinion finding plaintiff not disabled. (Tr. 8). On February 4, 2013, the Appeals Council denied plaintiff's request for review of the March 8, 2012 decision, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-5). Plaintiff, through counsel, seeks review by this court pursuant to 42 U.S.C. § 405(g).

FACTUAL HISTORY

I. Medical History

A. Depression and Substance Abuse

Plaintiff was born on January 2, 1979. In the application, plaintiff submits that

Page 273

her disabling condition began on January 1, 2008, when she was 31 years old. (Tr. 155). Plaintiff has a high school education and is not married. Her relevant work experience includes work as a waitress, cashier and cleaner. (Tr. 26, 156, 163-69).

Plaintiff has a history of depression and substance abuse. In March 2006, in connection with plaintiff's application for state disability benefits, a reviewer at the University of Massachusetts Medical School's Disability Evaluation Services (" DES" ) found that plaintiff exhibited six characteristics associated with " depressive syndrome" [1] which resulted in " marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence or pace; [and] repeated episodes of decompenstation." (Tr. 567-68).

In November 2006, plaintiff informed her primary care physician, Amy Esdale, M.D. (" Dr. Esdale" ), that she had a history of depression, anxiety and anorexia. (Tr. 236). Among other complaints, plaintiff told Dr. Esdale that she experienced racing thoughts all the time and constant thoughts about illness. (Tr. 256). Dr. Esdale prescribed several medications in an attempt to treat plaintiff's complaints including Celexa, Wellbutrin, Seroquel and Clonidine.[2] (Tr. 234-73).

Additionally, plaintiff underwent inpatient substance abuse treatment from September 12 until October 13, 2006, in the Discover Program at Addison Gilbert Hospital (" AGH" ) in Gloucester, Massachusetts. (Tr. 435-45). From October 2006 until April 2007, she continued to receive care on an outpatient basis at Northeast Health Systems, Inc. for substance abuse. (Tr. 446-68). On April 23, 2007, plaintiff was readmitted to the Discover Program before dropping out three days later on April 27, 2007. (Tr. 423-34).

On May 29, 2008, plaintiff was seen in the emergency department at AGH for anxiety symptoms. (Tr. 514-15). Plaintiff stated that she could not take the stress she was under and felt like she was going to have a nervous breakdown. (Tr. 514). Plaintiff also stated she had been taking Paxil and Celexa, but had stopped because they were not working. (Tr. 514). She also reported that she occasionally used tobacco and alcohol and " denie[d] any drug use." (Tr. 514). The physician that treated plaintiff assessed " acute anxiety and stress reaction" and prescribed Ativan and ibuprofen before releasing plaintiff. (Tr. 514).

From February 2008 through October 2011, plaintiff received periodic substance abuse counseling and outpatient methadone treatment at both CAB Heath and Recovery Services (" CAB" ) in Danvers, Massachusetts and Health and Education Services in Beverly, Massachusetts.[3] (Tr. 305-57, 376-408, 614-37, 638-805). At CAB, plaintiff received therapy from Kathy O'Neill (" O'Neill" ), a licensed mental health counselor, for addiction and anxiety.

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(Tr. 315-30, 353-57, 614-20, 633-36). When plaintiff began her therapy with O'Neill in March 2010, plaintiff reported she was on Zoloft and Ambilify for depression and anxiety and that her life had been " unmanageable due to depression and drug use." (Tr. 330). Throughout the next several months, plaintiff told O'Neill that she was feeling hopeful about her treatment, reported decreased symptoms of anxiety and depression and stated that her medication appeared to be working. (Tr. 315-30, 633-36). On May 4, 2010, plaintiff reported " a reduction of symptoms of depression and anxiety" to O'Neill. (Tr. 328). On May 18, 2010, she " presented" herself " as somewhat depressed" but " report[ed] that she feels a little better than normal." (Tr. 326). By October 2010, plaintiff reported that her anti-depressants were working and that she was able " to take care of items and paperwork" that she previously would not have been able to complete. (Tr. 354, 636). A November 2010 report from plaintiff's final meeting with O'Neill indicates that she " recently produced an illicit free drug screen" and that her medication " appears to have alleviated some of [her] severe depression symptoms." (Tr. 633).

Plaintiff began treatment at Health and Education Services on October 27, 2010 and was treated by Debra A. Olszewski, M.S. (" Olszewski" ). (Tr. 710-19). From November 2010 until January 2011 Olszewski continuously notes " slight improvement" regarding plaintiff's progress towards her goals and periodically notes that plaintiff admits to some depression and crying. (Tr. 699-709). From January to April 2011, Olszewski noted that plaintiff struggled with her drug use and depression. (Tr. 669-98). By May 2011, however, plaintiff told Olszewski she was " doing better" and that she was " at peace." (Tr. 661, 668). By July 2011, plaintiff reported to Olszewski that she " was proud of how well she was doing" and that she was feeling less depressed, more motivated and generally more positive. (Tr. 651-654). Moreover, from October 2011 through January 2012, plaintiff's psychiatrist, Roderick Anscombe, M.D., (" Dr. Anscombe" ), reported that plaintiff believed " [e]verything is going well right now" and that plaintiff was " doing well on current medications." (Tr. 865-872).

B. Right Ankle Injury

Plaintiff first reported left ankle pain on May 24, 2007, at AGH.[4] (Tr. 412). She told the treating staff member that it was an " old injury" and that she treated it by wearing support shoes and taking ibuprofen. (Tr. 412). Plaintiff denied any musculoskeletal injuries except for the ankle injury. (Tr. 414). On May 31, 2007, plaintiff complained to her primary care physician, Dr. Esdale, of right foot pain that had started five days earlier. (Tr. 249). Dr. Esdale reported " No trauma. Mild swelling no redness . . . [patient] has been wearing shoes with no support." (Tr. 249).

On March 22, 2011, plaintiff completed a function report for the Social Security Administration in connection with her disability claim. (Tr. 200-07). The report focused on her mental state. When asked to check various boxes that her condition affected, she did not check the boxes applicable to her ability to walk, stand, lift or climb stairs. (Tr. 205).

On January 25, 2012, plaintiff was again treated for right ankle pain. (Tr. 845). Plaintiff told Kyan Berger, M.D. (" Dr.

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Berger" ) that she " had [an] injury sometime ago and she has had persistent chronic right ankle pain" that was made worse when she slipped and twisted her ankle in the snow four or five days prior to her visit. (Tr. 845). An X-ray taken the same day revealed " no ankle fracture," according to the radiologist's report. (Tr. 812). Dr. Berger's review of the X-ray " show[ed] no acute abnormalities." (Tr. 845). Upon examining the ankle, Dr. Berger found " no redness, swelling, or deformity." (Tr. 845). He also found, " No significant tenderness except possible mild lateral malleolar tenderness" at one location. (Tr. 845). Plaintiff also informed Dr. Berger that she would not need a cane or walker. (Tr. 845). Dr. Berger diagnosed a right ankle sprain and an " acute exacerbation of chronic ankle pain." (Tr. 845). He instructed plaintiff to take ibuprofen and gave her an air cast. (Tr. 845).

On February 1, 2012, plaintiff sought follow up treatment at the Gloucester Family Health Center in Gloucester, Massachusetts. (Tr. 807). Plaintiff reported chronic right ankle pain and informed Kathryn Hollett, M.D. (" Dr. Hollett" ) that she had stepped in a hole seven years ago while wearing high heels and experienced severe pain in her right ankle. (Tr. 807). Plaintiff reported that she sought treatment three years after the injury and " was told that her xray [sic] showed an old fracture." (Tr. 807). Dr. Hollett noted that the X-ray taken the previous week was normal. (Tr. 807). Although plaintiff reported ankle tenderness, Dr. Hollett's examination noted that plaintiff's ankle had a full range of motion, no instability and no swelling. (Tr. 808). Dr. Hollett's impression was that plaintiff had a right ankle sprain, obesity and joint pain in her ankle and foot. Dr. Hollett recommended plaintiff take Tylenol or ibuprofen to relieve the tenderness, encouraged her to wear proper footwear and ordered physical therapy. (Tr. 808).

II. ALJ Hearing

In plaintiff's application for SSI benefits, plaintiff claimed she was disabled as of January 1, 2008, citing mental illness and substance abuse as reasons for the disability. (Tr. 151, 155). At the hearing before the ALJ, plaintiff testified that depression, anxiety and her ankle injury were the major factors in her disability. (Tr. 27-29).

At the start of the hearing, plaintiff summarized her work experience as a cashier at Market Basket. (Tr. 27). Plaintiff explained that after about ten months working there, she quit because:

[I]t was very hard for me to be able to just get up and really go to work . . . I was getting up everyday to go, but there was times where I just--just didn't . . . Also, another thing that made it hard for me was the long period of time they had me standing . . . I have ankle issues . . . and it was, you know, it throbbed when I standed [sic] for a long period of time, and it just--it really made it hard for me, to you know, want to go in the next day, and I was--I became very hard on myself, you know, about--you know, being able to follow through.

(Tr. 27-28). Plaintiff then told the ALJ that after quitting the cashier position at Market Basket, she tried finding work at a convenience store or as a waitress but did not believe that ...


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