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Bourinot v. Colvin

United States District Court, D. Massachusetts

March 30, 2015

LORI ANN BOURINOT, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant

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[Copyrighted Material Omitted]

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For Lori Ann Bourinot, Plaintiff: Stephen L. Raymond, Law Office of Stephen L. Raymond, Esq., Haverhill, MA.

For Carolyn W. Colvin, Defendant: Susan M. Poswistilo, United States Attorney's Office, Boston, MA.

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

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ORDER AND MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS (Docket No. 11) AND DEFENDANT'S MOTION FOR ORDER AFFIRMING THE DECISION OF THE COMMISSIONER (Docket No. 15)

TIMOTHY S. HILLMAN, UNITED STATES DISTRICT JUDGE.

This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration (the " Commissioner" or " SSA" ) denying the application of Lori Ann Bourinot (" Plaintiff" ) for Social Security Disability Insurance Benefits and Supplemental Security Income. Plaintiff has filed a motion for judgment on the pleadings (Docket No. 11), and the Commissioner has filed a cross-motion seeking an order affirming the decision of the Commissioner (Docket No. 15). For the reasons set forth below, Plaintiff's motion is denied and Defendant's motion is granted.

Procedural History

On November 7, 2011, Plaintiff filed concurrent applications for disability insurance benefits under Title II of the Social Security Act and supplemental security income under Title XVI of the Social Security Act. Social Security Administration Record of Social Security Proceedings, Docket No. 8, at 32 (hereinafter " (R. )" ). Plaintiff alleges that she has been

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disabled since March 1, 2009, on the basis of her post-traumatic stress disorder (" PTSD" ), depression, anxiety, fibromyalgia and arthritis. (R. 220). The SSA initially determined that Plaintiff was not entitled to disability insurance benefits or supplemental security income on March 9, 2012, and affirmed the decision upon reconsideration on August 2, 2012. (R. 220-25, 227-32). Plaintiff requested an administrative hearing on August 22, 2012, and a hearing was held before Administrative Law Judge (" ALJ" ) Paul Carter on July 23, 2013. (R. 233, 60-93). In a written decision issued on August 7, 2013, the ALJ determined that Plaintiff was not disabled and therefore ineligible for disability insurance benefits and supplemental security income. (R. 29-59). The Appeals Council denied Plaintiff's request for review of the decision on September 4, 2013, thereby making it the final decision of the Commissioner. (R. 28). Plaintiff filed this action on February 7, 2014.

Facts

Personal and Employment History

Plaintiff was born on July 25, 1965, making her 43 years old on the date of alleged onset of disability. (R. 65). She is a high school graduate, and completed nursing school in 1996. (R. 68). Her only past relevant work was as a registered nurse. (R. 87).

Medical Records

The records detailing Plaintiff's medical treatment for PTSD, depression, anxiety, fibromyalgia and arthritis are from two primary sources: Newton-Wellesley Hospital and Union Square Family Health Center.

Newton-Wellesley Hospital Records

Plaintiff treated with primary care physician Dayna Anderson, M.D. at Newton-Wellesley Hospital since at least 2004. (R. 1363-64). At a routine physical on March 11, 2009, Plaintiff was prescribed Celexa and Xanax for anxiety and Ambien for insomnia. (R. 880). The treatment notes also indicate that Plaintiff was prescribed medication for arthritis through an outside facility. Id.

In March 2010 Plaintiff was admitted to the emergency room at Newton-Wellesley Hospital for treatment of a back injury after falling off the back of her boyfriend's motorcycle. (R. 585). She was diagnosed with a contusion of the left back and buttock, as well as pneumonia. (R. 578). She was discharged with a prescription for vicodin and ibuprofen. (R. 594). At a follow-up appointment with Dr. Anderson on March 12, 2010, Plaintiff indicated that she still had significant tenderness and pain while rolling over in bed, but felt better while walking. (R. 594). At a second follow-up on March 24, Plaintiff complained of worsening lower back pain. (R. 611). She was referred to an orthopedist, Dr. Kenneth Polivy, M.D., who diagnosed her with lumbar mechanical back pain and provided Plaintiff with a back brace to wear as needed. (R. 615). A subsequent MRI indicated that Plaintiff had sustained a transverse sacral fracture at the S2-S3 level. (R. 613-14).

On May 16, 2010, Plaintiff was treated at the Newton-Wellesley emergency room following a fall down a flight of stairs. (R. 620). Plaintiff had been drinking and sustained an injury to her head and scalp, but was discharged the same day with instructions to ice the sore area for 20 minutes at a time. (R. 622). Plaintiff returned to the emergency room on July 3, 2010, for treatment of a bruised right eye and swollen cheek bone. (R. 498-501). Plaintiff stated that she suffered the injury while playing volleyball and denied domestic abuse. (R. 499). Plaintiff's right eye was swollen, vision was blurry, and she had abrasions on one of her knuckles and left elbow. Id.

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She was diagnosed with facial fractures and referred to a maxilo-facial specialist. (R. 510).

On July 30, 2010, Plaintiff was seen in the Newton-Wellesley psychiatry department by Dr. Sharon Salter, M.D., to establish treatment for Plaintiff's anxiety and situational stress. (R. 674). Plaintiff reported a history of physical, verbal and sexual abuse by her ex-husband. Id. She also reported that she lost custody of her daughter, which prompted a suicide attempt in December 2009.[1] Id. Plaintiff stated that her mood, sleep, and energy were " ok," and her appetite was good. Id. Dr. Salter remarked that she did not appear to be an imminent danger to herself or others at the time. Id. Plaintiff was diagnosed with mood disorder, anxiety, PTSD, and had a global assessment functioning (" GAF" ) score of 55.

At a follow-up appointment with Dr. Salter on August 16, 2010, Plaintiff reported that she was upset about custody issues with her daughter. (R. 676). She described her mood as " sad most of the time," and stated that she suffers mild panic attacks. However, her anxiety was manageable and her sleep was " ok with Seroquel." Id. Dr. Salter noted that Plaintiff was alert and oriented, her appearance and speech were normal, and her GAF was 50. Id. During a visit on September 16, 2010, Plaintiff reported worsening symptoms. (R. 678). She stated that she had not gotten out of bed for the last three weeks following a job offer being rescinded. Id. Plaintiff's sleep was " horrible" and the prescribed medication was no longer working. Id. She said that she enjoys going out with her boyfriend at night but during the day she does not leave the house. Id. Dr. Salter noted that Plaintiff's affect seemed down and reserved, but she otherwise presented as normal. Id. Her GAF was 45. Id.

Plaintiff was admitted to the Newton-Wellesley emergency room on September 23, 2010 for facial fractures and other injuries sustained in an assault by her boyfriend. (R. 490). She was discharged the same day with instructions to apply ice to the affected areas, and to follow up with her facial plastic surgeon, Dr. Jaimie DeRosa, M.D.[2] Plaintiff reported the assault to Dr. Salter in her next visit on October 1, 2010. (R. 680). Dr. Salter noted that Plaintiff had surgery the previous day to repair her broken facial bones. Id. Plaintiff stated that she had not previously mentioned the domestic abuse because she " did not want to admit that it was happening to her again." Id. Despite what had happened, Plaintiff reported feeling much better than her last visit. Id. She was having anxiety but felt safe now that her ex-boyfriend was in jail. Id. Although she was still sad, and was not sleeping well, she felt less depressed. Id. Dr. Salter noted that Plaintiff's affect was slightly reserved but she otherwise presented as normal, and had a GAF of 55. Id. Dr. Salter continued Plaintiff on her Celexa prescription, and also prescribed Lorazepam for anxiety and Ambien for insomnia. (R. 681). Plaintiff's Trazodone prescription was discontinued because it made her groggy. Id.

Plaintiff continued to see Dr. Salter regularly over the course of the next year and a half. On October 19, 2010, Plaintiff reported that her mood, energy, and appetite

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had improved, but she still had trouble sleeping. (R. 682). She had begun a hobby of breeding birds, and was considering doing it as a business. Id. She stated that she had been making to-do lists and completing ninety percent of her tasks. Id. Dr. Salter adjusted Plaintiff's Lorazepam and Ambien prescriptions. (R. 683). Plaintiff had a GAF of 65. Id. On November 22, 2010, Plaintiff reported a worsening mood, anxiety, difficulty sleeping, decreased energy and poor appetite. (R. 684). Plaintiff stated that her anxiety was made worse by situational stress related to her ex-boyfriend and custody issues with her daughter. Id. Dr. Salter prescribed Wellbutrin. (R. 685). Plaintiff had a GAF of 55. Id.

On December 20, 2010, Plaintiff reported to Dr. Salter that it had been a " bad month," due to situational stress regarding her daughter and ex-boyfriend. (R. 686). However, her mood was better and her appetite was good. Id. She said she had been more active and " is doing more things now," such as taking care of her birds, cooking, and other chores around the house. Id. Still, though, Plaintiff said she lacked motivation and " has to force herself to get out of the house." Id. Dr. Salter increased Plaintiff's dosage of Wellbutrin. (R. 687). Plaintiff's GAF was 60. Id. On January 19, 2011 Plaintiff stated that her mood was " ok" and that she was getting out of bed more, but her sleep was still not good. (R. 688). She said was feeling better than in the past, and had a GAF of 65. (R. 688-89). She was continued on existing medications. (R. 689). On February 15, 2011 Plaintiff reported continued situational stress, a good appetite, and that her sleep was " broken." (R. 690). She felt the Lorazepam was no longer effective, and Dr. Salter discontinued the prescription. (R. 691). Plaintiff's GAF was 65 and she was prescribed Diazepam. Id. On March 8, 2011, Plaintiff again reported situational stress, her mood was anxious, and her sleep was " off and on." (R. 692). Her GAF was still 65. Id. On April 29, 2011, Plaintiff reported that she was feeling better and therefore decided to self-taper off some of her medications. (R. 694). Her anxiety was " a little here and there," and sleep was " iffy." Id. Dr. Salter noted that Plaintiff seemed stable. Id. Plaintiff's GAF was 65. (R. 695).

On June 24, 2011, however, Plaintiff stated that her mood was not good and that she was spending 4-5 days per week in bed. (R. 696). She would get out of bed only to feed her birds or spend time with her boyfriend. Id. Dr. Salter noted that her worsened mood coincided with a decrease in the medications she was taking. Id. Plaintiff's GAF was 55, and she was restarted on Ambien and Wellbutrin. (R. 697). On July 15, Plaintiff saw Dr. Salter and the increased medication appeared to be helping. (R. 698). Her mood was " ok," anxiety was " so/so," and sleep was " not good." Id. Her GAF was 65. Id. At appointments with Dr. Salter in August and October 2011, Plaintiff reported more of the same and was continued on existing medications. (R. 700-703). In December 2011, Plaintiff stated that her mood was " extremely bad" and her anxiety had increased. (R. 704). However, she also said that she felt her medication was effective and planned to continue the current regimen. Id. Her GAF was 60. (R. 705).

Plaintiff was last seen by Dr. Salter in January and March of 2012. On January 10, Plaintiff reported situational stress regarding her son's incarceration and custody issues with her daughter. (R. 706). Her mood was " ok, not great," and she was not sleeping well due to anxiety over her daughter. Id. She had a good appetite, and was able to leave the house to go to appointments and go out with her boyfriend for activities like playing pool. Id.

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Plaintiff wanted to continue with her current medication regimen, and her GAF was 65. (R. 707). On March 6, Plaintiff stated that her mood was " sometimes . . . ok, sometimes . . . not." (R. 708). She reported continued situational stress, and that she spends a lot of time in bed because she has nothing to do. Id. She had been having some suicidal ideation, but said she would never act on those thoughts. Id. Her GAF was 60. (R. 709).

Plaintiff saw Dr. Anderson for a physical exam on August 23, 2011. (R. 872-73). Dr. Anderson noted that Plaintiff was in counseling due to her history as a domestic abuse victim, and would likely need counseling indefinitely. Id. Dr. Anderson also observed that Plaintiff was seeing her psychiatrist regularly for medication. Id.

Union Square Family Health Center Records

Plaintiff has treated with multiple providers at Union Square Family Health Center since 2011. The earliest Union Square records indicate that she saw primary care physician Jonathan Burns, M.D., on November 5, 2011, complaining of abdominal pain. (R. 937). It was noted that Plaintiff had a fifteen year history of domestic abuse and was seeing Dr. Salter for her depression and anxiety. Id. During several visits with Dr. Burns and other providers, Plaintiff complained of situational stress related to her children, poor sleep, inability to leave the house, and low energy. (R. 936-955). She also reported persistent lower back pain. Id. However, Dr. Burns consistently found her depression and fibromyalgia to be " stable." (R. 938, 943, 945-46, 949, 951-52, 955-56, 1340-42). In June of 2012, Plaintiff reported to Dr. Burns that her fibromyalgia was doing well on her current medication, and she was feeling well. (R. 1338). In July she stated that she was feeling well and her fibromyalgia was feeling better overall (R. 1341).

At her visit with Dr. Burns on April 3, 2012, Plaintiff reported that she was injured during an altercation with her son. (R. 956). Dr. Burns referred Plaintiff for short-term crisis counseling with therapist Zorangeli Ramos, Ph.D. (R. 958-59). Plaintiff began her counseling with Dr. Ramos on April 19, 2012. (R. 1301). She complained of situational stress related to her son and ex-husband. (R. 956). She described difficulty sleeping, poor appetite, low energy and interest, nightmares, feelings of guilt, and depressed and anxious mood. (R. 957). She was diagnosed with depression and anxiety and had a GAF of 51. Over the course of three sessions, Dr. Ramos attempted to discuss and normalize Plaintiff's emotional difficulties in light of her trauma history. (R. 1301). The treatment also involved safety planning given Plaintiff's tendency to self-harm, and Dr. Ramos remarked that Plaintiff would continue to benefit from continued psychotherapy and medication. (R. 1302).

At primary care visits in August and October of 2012, Plaintiff complained of depression and insomnia but her condition appeared generally stable. (R. 1343-45). In November it was noted that Plaintiff had longstanding depression related to " life circumstances" and was battling chronic pain; however, the provider noted that she " seems pretty stable at this point." (R. 1346-47). She was continued on her prescriptions for Ambien, Celexa, and Wellbutrin, and discontinued on Valium. Id.

Plaintiff began seeing a new primary care physician, Rachel Vogel, M.D., on January 3, 2013. At her first visit Dr. Vogel noted that Plaintiff was alert and oriented and in no apparent distress. (R. 1355). On February 6, 2013, Plaintiff reported that she was still feeling very depressed,

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and requested refills for Valium, Celexa, Wellbutrin and Ambien. (R. 1357). On March 12, 2013, Plaintiff stated that her anxiety was still high and she was very upset about a dispute with her landlord over the condition of her housing. (R. 1360). She remarked that she was spending most of her time in the bedroom and had been canceling appointments because she didn't feel like going. Id. Plaintiff was continued on Ultram for her fibromyalgia, and Dr. Vogel tried to impress upon Plaintiff the importance of seeing Dr. Winters, a psychiatrist at Union Square. (R. 1360).

Medical Opinion Evidence

The record also includes opinions of several doctors and health professionals who have treated, examined, or reviewed Plaintiff's medical conditions. ...


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