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Foster v. Colvin

United States District Court, D. Massachusetts

June 16, 2016

CAROLYN COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiff 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.[1]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 Commissioner’s motion.

         II. Factual Background

         In her 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.

         III. Procedural Background

         Foster 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.

         IV. Discussion

         A. Legal Standards

         1. Entitlement to Disability Benefits

         A 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.

         The 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.

         2. Standard of Review

         The 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)).

         The 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).

         B. Before the ALJ

         1. Medical History

         a. Physical Impairments

         Before the onset date, Foster’s surgical history included a laparoscopy, laparoscopic surgery, a pilonidal cyst removal and inguinal hernia repair. R. 259.

         i. Treatment During the Relevant Period

         In 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.

         In May 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.

         Foster missed three consecutive follow-up appointments from January to April 2007 and did not see Dr. Pliskin again until August 2007. R. 427-28.

         ii. Treatment After the Date Last Insured

         In 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.

         In 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 ...

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