United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge.
Kathleen Foster (“Foster”) filed a claim for
Social Security disability insurance benefits
(“SSDI”) with the Social Security Administration
(“SSA”) in July 2010. R. 137-38.Foster brings this
action under 42 U.S.C. § 405(g) for judicial review of
the final decision by the SSA Commissioner (“the
Commissioner”) that denied her claim. D. 1. Foster has
moved to reverse the decision, D. 15, and the Commissioner
has moved to affirm it, D. 17. For the reasons discussed
below, the Court DENIES Foster’s motion and ALLOWS the
application for SSDI, Foster alleged that she was unable to
work due to multiple physical and mental conditions,
including but not limited to multiple hernias, chronic pelvic
pain, right leg nerve damage, depression, migraines and
hypertension. R. 165. Foster previously worked as a car
salesperson, retail sales clerk, assistant sales manager,
switchboard operator/receptionist and wedding coordinator. R.
166. Foster alleged a disability onset date of February 14,
2004, R. 137, and had disability insurance through June 30,
2007, R. 18.
applied for SSDI in July 2010. R. 137-38. The SSA denied the
claim on September 28, 2010. R. 72-74. Foster filed a request
for reconsideration on December 16, 2010, R. 75, and the SSA
upheld the denial on May 11, 2011, R. 77-79. An
administrative law judge (“ALJ”) conducted a
hearing at Foster’s request on June 26, 2012. R. 16. In
a July 16, 2012 decision, the ALJ ruled that Foster was not
disabled under the Social Security Act as of June 30, 2007,
Foster’s date last insured. R. 13-25. Foster requested
review of that decision on September 19, 2012, but the
Appeals Council denied review, thereby rendering the
ALJ’s decision final on October 17, 2013. R. 6-12.
Entitlement to Disability Benefits
claimant’s entitlement to SSDI depends on whether she
has a “disability, ” defined as an
“inability 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
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A); 20 C.F.R. § 404.1505. The physical or
mental impairments must be severe, such that the claimant is
unable to perform past work or any other substantial gainful
work available in the national economy. 42 U.S.C. §
423(d)(2); 20 C.F.R. § 404.1505.
Commissioner follows a five-step process to determine whether
an individual is disabled. Seavey v. Barnhart, 276
F.3d 1, 5 (1st Cir. 2001). First, if the applicant is engaged
in substantial gainful work activity, the application is
denied. 20 C.F.R. § 416.920. Second, if the applicant
does not have or has not had within the relevant time period
a severe medically determinable impairment or combination of
impairments, the application is denied. Id. Third,
if the impairment meets or equals one of the
“listed” impairments in the Social Security
regulations, the SSA will find the applicant disabled.
Id. Before step four, the SSA assesses the
applicant’s residual functional capacity. Id.
Fourth, if the applicant’s residual functional capacity
indicates that she can still perform past relevant work, the
application is denied. Id. Fifth, if the applicant,
given her residual functional capacity, education, age and
work experience, is unable to do any other work, the
application is granted. Id.
Standard of Review
Court may affirm, modify or reverse the Commissioner’s
decision upon review of the record. 42 U.S.C. § 405(g).
This review is “limited to determining whether the ALJ
used the proper legal standards and found facts upon the
proper quantum of evidence.” Ward v. Comm’r
of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). Because
the Commissioner’s role is “to draw factual
inferences, make credibility determinations, and resolve
conflicts in the evidence, the Court must not perform such
tasks in reviewing the record.” Whitzell v.
Astrue, 792 F.Supp.2d 143, 148 (D. Mass. 2011) (citing
Irlanda Ortiz v. Sec’y of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991)).
Court must accept the Commissioner’s factual findings
as conclusive if they are supported by substantial evidence.
42 U.S.C. § 405(g). Substantial evidence exists
“if a reasonable mind, reviewing the evidence in the
record as a whole, could accept it as adequate to support
[the Commissioner’s] conclusion.” Irlanda
Ortiz, 955 F.2d at 769 (quoting Rodriguez v.
Sec’y of Health & Human Servs., 647 F.2d 218,
222 (1st Cir. 1981)). The Court must adhere to a finding of
fact “even if the record arguably could justify a
different conclusion, so long as it is supported by
substantial evidence.” Whitzell, 792 F.Supp.2d
at 148 (quoting Rodriguez Pagan v. Sec’y of Health
& Human Servs., 819 F.2d 1, 3 (1st Cir. 1987)). If
the ALJ, however, made a legal or factual error, “the
court may reverse or remand such decision to consider new,
material evidence or to apply the correct legal
standard.” Martinez-Lopez v. Colvin, 54
F.Supp.3d 122, 129 (D. Mass. 2014) (citation and internal
quotation mark omitted).
Before the ALJ
the onset date, Foster’s surgical history included a
laparoscopy, laparoscopic surgery, a pilonidal cyst removal
and inguinal hernia repair. R. 259.
Treatment During the Relevant Period
February 2004, Foster saw Dr. Harold Bass to address
complaints of persistent pelvic pain, discomfort, probable
adenomyosis and endometriosis. R. 259-64. Dr. Bass performed
a total abdominal hysterectomy. R. 264. In June 2004, Foster
visited an emergency room with complaints of sharp chest
pains and abdominal pain. R. 304. In March 2005, Foster saw
Dr. Paul Gilmore for an upper endoscopy with biopsy and was
diagnosed with Barrett’s esophagus. R. 265.
2006, Dr. Bass performed surgery on Foster to address stress
urinary incontinence with cystocele. R. 268. Two months
later, Dr. Doris Pliskin operated on Foster to repair a right
inguinal hernia and recorded a postoperative diagnosis of
recurrent right inguinal hernia. R. 274. Dr. Pliskin noted
that Foster previously had right inguinal hernia surgery in
1988. Id. Dr. Pliskin saw Foster for six follow-up
appointments between July and December 2006, during which Dr.
Pliskin addressed wound drainage, superficial wound infection
and “some pain.” R. 425-27.
missed three consecutive follow-up appointments from January
to April 2007 and did not see Dr. Pliskin again until August
2007. R. 427-28.
Treatment After the Date Last Insured
August 2007, Dr. Lawrence Johnson, an orthopedic specialist,
wrote to Dr. George Meltsakos, Foster’s primary care
physician, regarding an evaluation of a year of right-sided
hip and back pain. R. 406-07. Dr. Johnson reported that
Foster had some gait stiffness, moderately reduced back range
of movement, normal spinal alignment, mild discomfort and
tenderness, but noted that Foster’s pain “[did]
not radiate into her legs.” R. 406. Dr. Johnson
concluded that Foster had chronic back pain with degenerative
joint disease. R. 407. The same month, Dr. Pliskin operated
on a bulge in Foster’s right femoral area. R. 278. Dr.
Pliskin recorded a preoperative diagnosis of a right femoral
hernia, but discovered during the procedure that Foster had
right femoral lymphadenopathy and not a hernia. Id.
October 2007, Foster saw Dr. Pliskin to address another
possible hernia. R. 281. Dr. Pliskin diagnosed and surgically
repaired an incisional hernia. R. 283. In June 2008, Dr.
Pliskin operated on Foster after a CT scan indicated a right
femoral hernia. R. 289. Dr. Pliskin aborted the procedure
because there was no femoral hernia present. Id. Dr.
Pliskin referred Foster to Dr. Roberto Feliz, who diagnosed
Foster with right groin pain consistent with ilioinguinal and
genitofemoral neuropathy in July 2008. R. 291. During that
visit, Foster reported persistent, severe pain from her right
groin through her right knee and complained that actions such