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King v. Colvin

United States District Court, D. Massachusetts

September 11, 2015

MIGNON A. KING, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant

          Mignon A. King, Plaintiff, Pro se, Norwood, MA.

         For Carolyn W Colvin, Defendant: Michael P. Sady, United States Attorney's Office, 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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         Plaintiff Mignon A. King (" Ms. King" ), who is proceeding pro se, brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration (the " Commissioner" ). The Commissioner found that Ms. King was not disabled, and, consequently, that she was not entitled to Supplemental Security Income (" SSI" ). Before the Court is Ms. King's motion to reverse the Commissioner's decision, or, in the alternative, to remand the Commissioner's decision for the consideration of new evidence. [ECF Nos. 1, 26]. The Commissioner has moved for an order affirming the decision. [ECF No. 29].

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For the reasons discussed herein, Ms. King's motion to reverse is allowed, on the grounds that the Commissioner's decision was not supported by substantial evidence. This case will be remanded to the Commissioner for further development of the record. The Commissioner's motion to affirm the decision is denied.


         A. Statutory and Regulatory Framework: Five-Step Process to Evaluate Disability Claims

         " The Social Security Administration is the federal agency charged with administering both the Social Security disability benefits program, which provides disability insurance for covered workers, and the Supplemental Security Income program, which provides assistance for the indigent aged and disabled." Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 42 U.S.C. § § 423, 1381a).

          The Social Security Act (the " Act" ) provides that an individual shall be considered to be " disabled," for the purposes of the Supplemental Security Income program, if he or she is

unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months.

42 U.S.C. § 1382c(a)(3)(A); see also 42 U.S.C. § 423(d)(1)(A). The inability must be severe, such that the claimant is unable to do his or her previous work or any other substantial gainful activity that exists in the national economy. See 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 416.905; see also Ross v. Astrue, No. CIV.A. 09-11392-DJC, 2011 WL 2110217, at *2 (D. Mass. May 26, 2011).

          When evaluating a disability claim under the Act, the Commissioner uses a five-step process, which the First Circuit has explained as follows:

All five steps are not applied to every applicant, as the determination may be concluded at any step along the process. The steps are: 1) if the applicant is engaged in substantial gainful work activity, the application is denied; 2) if the applicant does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the " listed" impairments in the Social Security regulations, then the application is granted; 4) if the applicant's " residual functional capacity" is such that he or she can still perform past relevant work, then the application is denied; 5) if the applicant, given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey, 276 F.3d at 5 (citing 20 C.F.R. § 416.920).

         B. Summary of Facts

         Plaintiff Mignon King is a 51-year-old woman who claims to be disabled by various mental and physical conditions. Ms. King was born on January 6, 1964, and she was 46 years old as of September 27, 2010, the date that her alleged disability began. [See ECF No. 18, Administrative Record of Social Security Proceedings (" R." ), 32, 125].[1] Ms. King alleges that she was the victim of a stalker who pursued her for a number of years. [R. 53, 344]. Although she now has a permanent restraining order

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in place, Ms. King allegedly suffers from anxiety, post-traumatic stress disorder, and other mental health issues. At the time she applied for SSI benefits, Ms. King lived alone in an apartment that she previously shared with her mother. [R. 52-53, 126]. Ms. King's mother passed away in September 2010 after suffering a stroke, and Ms. King claims that the shock and stress of this event re-triggered her PTSD and anxiety, and caused it to intensify. [R. 52-53]. Ms. King has since moved out of her late mother's home and now lives with a friend. [R. 44].

         Ms. King completed college and holds two masters' degrees. [R. 32, 149; see also R. 346]. In the past, she has intermittently worked as a database assistant, an English instructor, a freelance proofreader, and an editorial consultant. [R. 55, 149, 184-191, 224-225]. Most recently, from January 2011 to May 2011, Ms. King taught a freshman writing class once a week at a local community college. Her only compensation, however, was a stipend of approximately $2500. [R. 32-35]. Ms. King stated that she had difficulty completing this one-semester course because of her anxiety, PTSD, and mental health problems. [R. 33]. Prior to teaching the writing course in 2011, Ms. King last worked as a freelance proofreader until September 27, 2010. [R. 155]. At the time of the administrative hearing before the ALJ in October 2012, Ms. King was not working at all. [R. 32].

         In her 2010 application for SSI, Ms. King alleged that she has various mental and physical conditions that limit her ability to work, including (1) anxiety, (2) posttraumatic stress disorder (" PTSD" ), (3) panic attacks, (4) grief, (5) acid reflux, (6) migraines, (7) sleep problems, (8) heavy periods, and (9) degenerative osteoarthritis. [Id. 148]. In her Function Report submitted with her application [R 164-173], Ms. King claimed that after the onset of her alleged symptoms, she was no longer able to concentrate or read more than a few pages at a time; she was not able to deal with stress or work with other people; and she was no longer able to perform either simple or complex computer functions. [R. 165, 169]. She stated that she is forgetful to the point where it takes her a long time to get dressed in the morning; she feels " too shaky" to perform certain grooming activities; and her anxiety sometimes prevents her from leaving the house at all. [R. 167]. Ms. King's application also mentioned difficulties arising from alleged musculoskeletal problems, including osteoarthritis, and that these conditions cause back, knee, and hip stiffness or pain if she sits for too long, " especially at a computer." [R. 171]. She noted that she needs to take long breaks, and that " kneeling, bending, squatting, and lifting more than 7-10 pounds is a problem." [Id.]. However, Ms. King also reported that she was sometimes able to do laundry and clean the house for 1-2 hours per week, and that she makes trips to the grocery store, pharmacy, and the public library. [R. 164]. She stated that she usually leaves the house " once every day or two." [R. 167]. Although she is sometimes able to cook and prepare meals for herself, at the time of her application, she was " not making complete meals most days." [R. 166]. Ms. King also stated that she was sometimes able to attend " poetry readings" and literary events on occasion, and that she used email and social media websites. [R. 168].

         C. Medical Chronology

         The administrative record contains a number of medical records and reports, which the Court summarizes here.

         1. Treating Sources

         In 2002, Ms. King was evaluated by Dr. Michael G. Wilson of Brigham and Women's Hospital, where she was diagnosed with bilateral patellofemoral pain, and bilateral

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flat foot. Dr. Wilson noted that he had previously performed bilateral bunionectomies on Ms. King in 1993. Although Dr. Wilson noted that she had " patellofemoral crepitance bilaterally," she had good forefoot alignment and was able to walk on her toes without difficulty. [R. 248]. In addition, her foot X-rays were normal. Dr. Wilson prescribed orthotics and physical therapy. [Id.].

         In March 2003, Ms. King was evaluated by Dr. Maitri Patel, M.D., at an outpatient psychiatry department at Brigham and Women's Hospital. Dr. Patel diagnosed Ms. King with PTSD, and noted that although she had " some traits of hypomania," she did not warrant a diagnosis of Bipolar II. Dr. Patel noted that Ms. King's anxiety seems to be " much improved" since her last hospitalization. [R. 249].[2]

         In 2006, Ms. King was seen at Massachusetts General Hospital for complaints of neck pain that was " persistent over several months." She was diagnosed with " musculoskeletal neck pain" and prescribed physical therapy. [R. 247].

         On September 2, 2010, Ms. King established a primary care relationship with Dr. Kristen Remus, D.O., at Beth Israel Deaconess Medical Center (" BIDMC" ). [R. 266-67]. Dr. Remus' treatment notes from Ms. King's first visit states that Ms. King had " no major medical problems." [R. 267]. Dr. Remus goes on to acknowledge, however, that Ms. King reported " musculoskeletal pains" in her left hip and neck, and that she reported occasional problems with her knees and wrist. Ms. King further reported that her hands sometimes go numb when using the computer for long periods. [R. 267-68]. Dr. Remus also noted that Ms. King " reports she has a history of untreated anxiety disorder." [R. 268]. Dr. Remus performed a physical exam of Ms. King, noting that she did not appear to be in any distress and was well-dressed and well-groomed. [R. 270]. Ms. King had full range of motion in her neck, but Dr. Remus noted tenderness in her right trapezius muscle and her left hip. [R. 271]. Dr. Remus reported that Ms. King's " [j]udgment and insight" appeared to be normal, and that she did not appear " overly anxious." [Id.]. Dr. Remus also reviewed some of Ms. King's prior medical records, which included Dr. Patel's evaluation for PTSD.[3] Dr. Remus further noted that Ms. King had " multiple joint pains" of a " musculoskeletal nature." She suspected a trapezius strain and possibly a pelvic girdle strain. Although she did not request X-rays, Dr. Remus did refer Ms. King for physical therapy for her neck and hip. [R. 273]. With respect to Ms. King's anxiety and PTSD, Dr. Remus suggested that Ms. King see a therapist. Ms. King declined. Dr. Remus noted that she " did not find [Ms. King's] condition to be limiting of her daily activities," and opined that she did not require medication at that time. [Id.]. Dr. Remus' overall impression and plan was that Ms. King was a " 46-year-old woman who has some complicated medical problems over the years as well as a history of trauma . . . ." [Id.].

         Ms. King was evaluated by a physical therapist on September 27, 2010, although the record does not contain any substantive physical therapy notes or clinical follow-up. [R. 275-76]. Also on September 27, 2010, Ms. King met with Elizabeth Simpson, a licensed clinical social worker affiliated with BIDMC. [R. 275]. Ms. King reported to Ms. Simpson that she has a history of PTSD and anxiety dating back

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to the 1980s, when she was stalked by a man. [R. 276-77]. Although she had obtained a restraining order, Ms. King reported a recurrence of her symptoms in 2003, after a traumatic experience during a hospital visit. Ms. King also reported that when she met with Ms. Simpson, her anxiety was particularly high, because her mother had just had a stroke and was currently in the hospital. Ms. King stated that her anxiety and PTSD produce symptoms including a " startle reflex," nightmares, difficulty concentrating, and difficulty with affect regulation, particularly anger management. [R. 277]. At that time, Ms. King had recently started taking Clonazepam, prescribed by Dr. Remus. Ms. Simpson described Ms. King at the time of her visit as " neatly and casually dressed and appropriately groomed." However, she noted that her mood was " a little anxious," and that she was verging on tears at some point. Her insight and judgment appeared very good. [R. 279]. Ms. Simpson established a plan to continue seeing Ms. King weekly, for 45-minute therapy sessions. [R. 280].

         Ms. King next met with Ms. Simpson on October 2, 2010. Ms. King arrived late and informed Ms. Simpson that her mother had passed away the previous week. Ms. King explained that she was experiencing significant stress and frustration. [R. 283-84]. The next week, Ms. King called Ms. Simpson to cancel her therapy session. She also requested a psychiatric evaluation. [R. 284].

         On October 20, 2010, Ms. King was seen and evaluated at BIDMC after having a panic attack when she locked herself out of her apartment. At that time, Ms. King was still a patient of Dr. Remus, and was still taking medication for her anxiety and PTSD. She had plans to establish care with a psychiatrist in the " near future." [R. 245].

         On November 9, 2010, Ms. King was seen by Dr. Anton Pesok, MD, at BIDMC for a psychiatric evaluation. [R. 291-94]. He noted that she was ten minutes late for her appointment, and appeared " tense" at first, but " eased up a little" as the visit progressed. She was casually dressed and well groomed, but her affect was " restricted" and she had nervous laughter at times. Her speech was " slightly pressured," and her thought process was " somewhat tangential." [R. 292-93]. His impression notes suggest that although Ms. King reported a long history of PTSD and anxiety, there were " some aspects of her presentation" that made him " concerned that perhaps there are other problems outside the realm of PTSD." Her " tense affect" and the way she presented made him " think about the necessity to rule out thought disorder." [R. 293]. Dr. Pesok indicated that he would need to meet with Ms. King more frequently.

         Ms. King met with Dr. Pesok again on November 30, 2010. [R. 295-96]. Ms. King was 15 minutes late to the appointment. [R. 296]. Ms. King reported that she was going to be evicted from her apartment, and that she continued to struggle with anxiety, insomnia, nightmares, hyper vigilance and irritability. She reported that she had previously lost her job with a temp agency (proofreading) when she was taken off her clonazepam medication. [R. 296]. Dr. Pesok's " treatment plan update" stated that Ms. King's symptoms were " consistent" with PTSD, but that some aspects of her history " do not match PTSD course." He also noted that he " [s]till can not rule out an underlying personality disorder and/or mood or psychotic disorder." [R. 297]. His ultimate treatment recommendations were " still pending" at that time. [Id.]. There are no further treatment notes from Dr. Pesok in the administrative record.

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          On December 9, 2010, Ms. King saw Dr. Remus for a follow-up. Dr. Remus' treatment notes report Ms. King's mother had passed away in September, which " triggered her anxiety and depression." [R. 300]. Dr. Remus also explained that Ms. King began taking Clonazepam in late September 2010, and that she had established treatment relationships with Dr. Pesok and Ms. Simpson. During this visit with Dr. Remus, Ms. King reported that she had been continuing to read and write poetry as a therapeutic outlet. [Id.]. Ms. King also complained of migraine headaches, which she said induced nightmares associated with her PTSD. [R. 301]. Ms. King denied " severe worsening depression," stating that she was able to manage her symptoms " quite well" with clonazepam, but had noticed some " repetitive behaviors" that emerged during this recent period of increased stress. [Id.]. Dr. Remus' notes indicate that Ms. King's anxiety and mood were " somewhat well controlled," although she also noted that Ms. King was taking clonazepam up to three times per day. [R. 300-02]. Dr. Remus agreed that this dosage was " required" at that time, due to the stresses of Ms. King's social situation and her mother's recent death, but she told Ms. King that it would not be advisable to continue taking clonazepam at that frequency and dosage in the long term. [R. 302]. Dr. Remus also stated that she would " defer additional psychiatric diagnoses and recommendations to Dr. Pesok." [Id.].

         Several days later, on December 13, 2010, Ms. King was examined by Dr. Rusell Kerbel, M.D., at BIDMC, for complaints of bilateral upper extremity tremors and numbness in her left hand. [R. 298]. By December 15, 2010, it appears that her symptoms had improved. [R. 298-99]. It is unclear whether Ms. King sought any follow-up treatment for these symptoms.

         The administrative record also contains an opinion dated March 19, 2011, from Robert O. Sills, Ph.D., opining that Ms. King is " capable of performing physical and mental activities in a work setting." [R. 310].[4] In this opinion, Dr. Sills states that he first saw Ms. King for therapy sessions on January 25, 2011, and last saw her on March 15, 2011. [R. 310; see also R. 338]. The record, however, contains no treatment notes or other evidence from these sessions. His opinion further confirms that Ms. King suffers primarily from PTSD, but he notes that she has had " no hospitalizations" and an " unknown history of illness." [R. 311]. With respect to Ms. King's current mental status, Dr. Sills notes that her insight and judgment were good; she was oriented as to time and place; her short and long term memory were fine; cognition was good; but that her mood and affect suggested mild depression and mild anxiety. [Id.]. He opines that she " appears able to maintain healthy social relationships," and that she was " able to maintain daily responsibilities and leisure time activities." [R. 311]. He states that Ms. King had " no" deficits of concentration or attention that would interfere with timely task completion, or regular routine. [Id.]. He also states that Ms. King " get [sic] along with others well at work and at home; " that she " appears to have no trouble travelling in public; " and that she " appears to deal with routine stress in adaptive fashion." [R. 312]. He acknowledges, however, that psychological testing had not been performed, and that it was " unknown" whether she had ever been fired or resigned from jobs because of her

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psychiatric symptoms, or whether there were any other sources of information regarding Ms. King's condition. [Id.]. When asked about her ultimate prognosis, Mr. Sills stated: " Good." [R. 313]. He assigned her a GAF score of 60. [R. 311].

         On April 20, 2011, Dr. Remus was also asked to provide an opinion regarding Ms. King's ability to do work-related physical and mental activities, despite her functional limitations. [R. 330]. Dr. Remus noted that she first saw Ms. King in September 2010, and that Ms. King had described a longstanding history of anxiety and PTSD. [Id.]. Dr. Remus noted that Ms. King's " symptoms worsened, and she was evaluated by Dr. Anton Pesok of our Psychiatry Division." [Id.]. In Dr. Remus' opinion, Ms. King's " anxiety symptoms do seem to impair her functionality," but it was " unclear if she is unable to sustain meaningful employment because of this." Dr. Remus expressly " defer[red] to a psychiatrist regarding this decision." [Id.]. Notably, the administrative record does not reflect any evaluation or opinion from Dr. Pesok, nor does it reflect that the SSA requested any such opinion from him.

         Finally, the administrative record contains a " Mental Impairment Questionnaire" dated April 6, 2012, which was completed by Mr. Benjamin Kudler (Ms. King's licensed clinical social worker), and co-signed by Dr. Erwin Ilano (Ms. King's psychiatrist). [R. 375-81]. In this opinion, Mr. Kudler and Dr. Ilano noted that Ms. King had been seen for weekly psychotherapy since November 2, 2011 for a primary diagnosis of PTSD. [R. 376].[5] The clinical findings stated in the opinion are that Ms. King's " affect, speech, and thought patterns" are impacted by her anxiety, and that her outward presentation " belies the severity" of her panic and anxiety. [Id.]. Her reported symptoms included, but were not limited to, " generalized persistent anxiety . . . mood disturbance . . . difficulty thinking or concentrating . . . persistent disturbances of mood or affect . . . ...

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