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Botelho v. Colvin

United States District Court, D. Massachusetts

December 18, 2015

LUCIA F. BOTELHO, Plaintiff,
v.
CAROLYN COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant

          For Lucia F. Botelho, Plaintiff: Stephen L. Raymond, Law Office of Stephen L. Raymond, Esq., Haverhill, MA.

         For Carolyn W. Colvin, Defendant: Michelle L. Leung, LEAD ATTORNEY, U.S. Attorney's Office - MA, Boston, MA.

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

         MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS (#10) AND DEFENDANT'S MOTION TO AFFIRM COMMISSIONER'S DECISION (#13).

         M. Page Kelley, United States Magistrate Judge.

         I. Introduction

         Plaintiff Lucia F. Botelho seeks reversal of the decision of Defendant Carolyn Colvin, Acting Commissioner of the Social Security Administration (" SSA" ), denying her Disability Insurance Benefits (" DIB" ). (#10.) Defendant moves for an Order affirming the Commissioner's decision. (#13.) With the administrative record having been filed and the issues fully briefed (##7, 11, 12), the cross motions stand ready for decision.

         II. Background

         A. Procedural History

         Plaintiff applied for DIB on February 29, 2012. (TR at 315-316.)[2] She alleged that she became disabled on December 16, 2010, due to lupus; chronic pain in muscles, joints, and nerves; fatigue; depression; and anxiety. (TR at 210.) Her applications were denied initially (TR at 236-238) and upon reconsideration. (TR at 240-242.)

         Botelho filed a written request for a hearing on December 3, 2012. On October 31, 2013, a hearing was held before Administrative Law Judge (" ALJ" ) Stephen C. Fulton. (TR at 39-75.) At the hearing, ALJ Fulton heard testimony from Plaintiff and James F. Scorzelli, Ph.D., a vocational expert. (TR at 23.) On December 23, 2013, the ALJ found Plaintiff not disabled. (TR at 20-38.) Plaintiff requested review by the Appeals Council on January 21, 2014 (TR at 18), but was denied on March 6, 2015. (TR at 1-7.) As a consequence of the denial, the ALJ's decision de facto became the final decision of the Acting Commissioner, subject to judicial review under 42 U.S.C. § 405(g). Plaintiff filed the instant case in federal court on May 5, 2015. (#1.) She has not challenged the ALJ's findings on her mental limitations, only his determination of her physical impairments. (#11 at 2 n.4.)

         B. Factual History

         1. Medical Records

         Plaintiff's relevant medical history begins on August 1, 2008, when she was hospitalized following one month of symptoms including daily fevers of up to 103 degrees, chills, drenching sweats, weakness, vomiting, headaches, decreasing appetite, a rash, and weight loss. (TR at 385, 392.) She was tentatively diagnosed with systemic lupus erythematosus (" SLE" ) before being discharged on August 5, 2008. (TR at 373-388.)

         On December 4, 2008, Plaintiff was seen by Bonnie Lee Bermas, M.D. " in consultation for possible diagnosis of systemic lupus erythematosus." (TR at 493.) On this date Dr. Bermas noted that Plaintiff had " diffuse alopecia; " she had no skin rashes or lymphadenopathy; her lungs were clear; her hands appeared normal and had good grip strength; her fingers, elbows, shoulders, and wrists had a good range of motion; her ankles were " fine; " and her muscle strength was " 5/5." ( Id. ) Plaintiff was taking CellCept, prednisone, hydroxychloroquine, and hydrochlorothiazide. ( Id. ) Lab testing showed her kidney function was " slightly better" than it had been in the hospital. (TR at 480.)

         On January 29, 2009, Dr. Bermas saw Plaintiff for headache, sinus infection, and bloating. (TR at 492.) Dr. Bermas wrote: " Skin is without rashes. No lymphadenopathy. Lungs are clear. Cardiac exam is normal. Abdomen is benign. Examination of her joints reveals normalappearing hands, good grip strength, normal DIPs, PIPs, MCPs, wrists, elbows, shoulders, hips, knees and ankles within normal limits." [3] Dr. Bermas also noted that Plaintiff's " Lupus is stable." ( Id. ) Dr. Bermas increased the dose of CellCept and decreased the prednisone. ( Id. ) Lab testing showed " some mild proteinuria." ( Id. )

         On March 12, 2009, Dr. Bermas saw Plaintiff for " followup of her lupus." (TR at 482.) Plaintiff was " noticing more and more joint pain," had continuing headaches, swollen and painful hands, and wore an ankle brace. ( Id. ) Plaintiff was taking CellCept, clobetasol, fioricet, hydrochlorothiazide, hydroxychloroquine, and prednisone. ( Id. ) Despite these increased symptoms, Dr. Bermas again noted " Lupus is stable," and wrote that " Examination of her joints reveals normal-appearing hands, good grip strength, normal DIPs, PIPs, MCPs... and ankles within normal limits." ( Id. ) She deferred adjusting Plaintiff's medication until after her appointment with a renal specialist. ( Id. )

         On the same date, Plaintiff was seen by Johannes Schlondorff, M.D., Ph.D., a renal specialist, for " lupus with proteinuria." (TR at 486.) He noted that Plaintiff had " SLE with possible renal involvement," but was unable to determine if her kidneys were affected by lupus or by another cause. (TR at 487.) On April 2, 2009, Dr. Schlondorff reviewed Plaintiff's medical records, and recommended " close monitoring and renal biopsy" only if her condition worsened. (TR at 483.)

         On May 21, 2009, Dr. Bermas saw Plaintiff for " followup of her lupus." (TR at 482.) Dr. Bermas again noted " Lupus is stable," and mentioned that Plaintiff's right ankle had " some decreased" range of motion.[4] ( Id. ) Despite this, she again wrote that her " ankles [were] within normal limits." ( Id. ) Dr. Bermas prescribed lisinopril and discontinued prednisone. ( Id. ) Labs showed Plaintiff's kidney function was " slightly better" than the previous test. (TR at 480.)

         On August 24, 2009, Dr. Bermas saw Plaintiff for mouth sores, headaches, and slurred speech. (TR at 479.) Dr. Bermas again noted " Lupus is stable." ( Id. ) Labs showed " the kidney function tests are better." (TR at 477.)

         On November 19, 2009, Dr. Bermas saw Plaintiff for swollen hands, arm stiffness, diarrhea, occasional mouth sores and chest pain, headaches, and tiredness. (TR at 476.) Dr. Bermas again noted " Lupus is stable." ( Id. ) Labs showed increased protein in Plaintiff's urine. (TR at 474.)

         On February 4, 2010, Plaintiff had breast reduction surgery due to back and neck pain. (TR at 440-441, 472, 495.) She " tolerated the procedure without difficulty" and had an " uneventful" postoperative period. (TR at 441.) On February 10, March 17, and July 7, 2010, Plaintiff was seen for follow-up by Bohdan Pomahac, M.D., who noted that she had " nicely healed" from the procedure. (TR at 469-471.)

         On March 21, 2011, Dr. Bermas saw Plaintiff for weight loss and feeling " worse" after having been unable to afford her medication for four months. (TR at 464.) Dr. Bermas again noted " Lupus is stable." ( Id. ) Labs showed protein in her urine, and Dr. Bermas prescribed CellCept, hydroxychloroquine, and lisinopril. (TR at 463-64.)

         On November 10, 2011, Dr. Bermas saw Plaintiff for lupus symptoms including hair loss, " rare mouth sores," and joint pain. (TR at 461.) Dr. Bermas again noted " Lupus is stable." ( Id. ) Labs showed protein in Plaintiff's urine, and Dr. Bermas prescribed lisinopril. (TR at 458.)

         On March 1, 2012, Dr. Bermas saw Plaintiff for lupus symptoms including " a lot of pain... stiffness, she feels as if her nerve [endings] are bothering her. Right thumb is stiff. No fluid retention. Some headaches, minimal skin lesions, no chest pain." (TR at 455.) Dr. Bermas again noted " Lupus is stable," and wrote that Plaintiff's hands were " normal." ( Id. ) Labs on this date revealed that Plaintiff " still [had] a little bit of protein" in her urine. (TR at 454.)

         On June 28, 2012, Dr. Bermas saw Plaintiff for syncopal episodes, occasional sun rashes and open sores, joint pain, difficulty with daily activities, weight gain, and insomnia. (TR at 513.) Despite noting rashes and open sores, Dr. Bermas repeated the same text that appears in every record, " Skin is without rashes." ( Id. ) Dr. Bermas again noted " Lupus is stable." ( Id. ) Plaintiff was taking CellCept, Celexa, clobetasol propionate, hydroxychloroquine, lisinopril, and prednisone. ( Id. ) Labs on this date revealed that Plaintiff had " a little bit more protein" in her urine. (TR at 512.)

         On January 10, 2013, Dr. Bermas saw Plaintiff for rashes on her arms, legs, and head; hair loss; pain with numbness in her neck and right arm; low energy and insomnia; persistent headaches that Motrin and Tylenol did not help; depression; stomach pain and heartburn; and forgetfulness. (TR at 525.) Again, despite mentioning Plaintiff's rashes, Dr. Bermas reported, " Skin is without rashes." ( Id. ) Labs on this date revealed " a bit more protein" in Plaintiff's urine, and Dr. Bermas referred her to a renal specialist. (TR at 524.) For the first time, instead of deeming the lupus " stable," Dr. Bermas stated: " Patient is more symptomatic -- unclear if this is sle refractory to therapy or this is depression." ( Id. ) Dr. Bermas referred her to Jean Pegg, LMHC, for mental health. (TR at 580-582.)[5]

         2. Medical Opinions

         On April 18, 2012, Michelle D. Holmes, M.D., an advising physician to the Disability Determination Service, found Plaintiff not disabled on initial consideration. (TR at 219, 221.) Dr. Holmes determined that Plaintiff could " lift up to 20 pounds occasionally and 10 pounds frequently, sit for six hours, ...


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