United States District Court, D. Massachusetts
MIGNON A. KING, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant
A. King, Plaintiff, Pro se, Norwood, MA.
Carolyn W Colvin, Defendant: Michael P. Sady, United States
Attorney's Office, Boston, MA.
Social Security Administration, Interested Party: Thomas D.
Ramsey, LEAD ATTORNEY, Office of the General Counsel, Social
Security Administration, Boston, MA.
D. BURROUGHS, DISTRICT JUDGE.
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].
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.
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. § §
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).
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. §
Summary of Facts
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]. 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
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].
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].
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].
administrative record contains a number of medical records
and reports, which the Court summarizes here.
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
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.].
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.
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].
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. 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 . . . ."
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
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].
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].
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].
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
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.
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.
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.
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]. 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
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].
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.
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]. 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 . . . ...