United States District Court, D. Massachusetts
LUCIA F. BOTELHO, Plaintiff,
CAROLYN COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant
Lucia F. Botelho, Plaintiff: Stephen L. Raymond, Law Office
of Stephen L. Raymond, Esq., Haverhill, MA.
Carolyn W. Colvin, Defendant: Michelle L. Leung, LEAD
ATTORNEY, U.S. Attorney's Office - MA, Boston, MA.
Social Security Administation, Interested Party: Thomas D.
Ramsey, LEAD ATTORNEY, Office of the General Counsel, Social
Security Administration, Boston, MA.
AND ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE
PLEADINGS (#10) AND DEFENDANT'S MOTION TO AFFIRM
COMMISSIONER'S DECISION (#13).
Kelley, United States Magistrate Judge.
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.
applied for DIB on February 29, 2012. (TR at
315-316.) 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.)
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.)
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.)
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.)
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."
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." (
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. )
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.)
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. ( 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.)
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
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
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
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.)
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.)
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.)
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
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.)
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, ...