United States District Court, D. Massachusetts
ELBA S. DE OLIVEIRA, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration Defendant.
MEMORANDUM AND ORDER
J. Casper United States District Judge
31, 2011, Plaintiff Elba S. De Oliveira (“De
Oliveira”) filed claims for Social Security disability
insurance benefits (“SSDI”) and supplemental
security income (“SSI”) with the Social Security
Administration (“SSA”). R. 21, 76-78,
174-86. Pursuant to the Social Security Act, 42
U.S.C. § 405(g), De Oliveira brings this action for
judicial review of the final decision of Carolyn Colvin,
Acting Commissioner of the Social Security Administration
(“the Commissioner”), issued by Administrative
Law Judge (“ALJ”) Francis Hurly on January 29,
2013. R. 1-4. Before the Court is De Oliveira’s motion
to reverse the ALJ’s decision and the
Commissioner’s motion to affirm the ALJ’s
decision. D. 13, 14. For the reasons stated below, the Court
DENIES De Oliveira’s motion to reverse and ALLOWS the
Commissioner’s motion to affirm.
Oliveira previously worked in retail, data entry and home
health care. R. 31, 44-46. On May 31, 2011, De Oliveira filed
applications for SSDI and SSI benefits, alleging that, as of
August 1, 2008, she was unable to work due to a right knee
injury, stomach pain, asthma and depression. R. 21, 76-78,
174-86. At the hearing before the ALJ held on January 16,
2013, De Oliveira’s attorney amended the disability
onset date to September 16, 2010. R. 68, 74, 217.
Oliveira filed applications for SSDI and SSI benefits on May
31, 2011. R. 21, 76-78, 174-86. After initial review, the SSA
denied her claims on September 21, 2011. R. 106-11. De
Oliveira requested reconsideration of her claims on September
30, 2011, R. 113, and on December 22, 2011, the SSA again
found De Oliveira to be ineligible for benefits, R. 114-19.
On February 8, 2012, De Oliveira requested a hearing before
an ALJ, R. 121, which was held on January 16, 2013, R. 37-75.
In a decision dated January 29, 2013, the ALJ determined that
De Oliveira was not disabled within the definition of the
Social Security Act and denied her claims. R. 18-36. De
Oliveira requested review of the ALJ’s decision on
February 4, 2013. R. 15-17. On April 25, 2014, the Appeals
Council denied De Oliveira’s request for review,
thereby adopting the ALJ’s decision as the final
decision of the Commissioner. R. 1-7.
Entitlement to Disability Benefits and Social Security
claimant’s entitlement to SSDI and SSI turns on whether
she has a “disability, ” defined by the Social
Security Act 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. §§ 416(i)(1),
423(d)(1)(A); see 20 C.F.R. §
404.1505. Such impairment must be sufficiently
severe, rendering the claimant unable to engage in any of her
previous work or any other gainful activity that exists in
the national economy. See 42 U.S.C. §
423(d)(2)(A); 20 C.F.R. § 404.1505.
Commissioner follows a five-step sequential analysis to
determine whether an individual is disabled and thus whether
the application for Social Security benefits should be
approved. 20 C.F.R. § 404.1520(a); see Seavey v.
Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). First, if the
claimant is engaged in substantial gainful work activity, she
is not disabled and the application is denied. 20 C.F.R.
§ 404.1520(a). Second, if the claimant does not have, or
has not had, within the relevant time period, a severe
medically determinable impairment or combination of
impairments, she is not disabled and the application is
denied. Id. Third, if the impairment meets the
conditions of one of the “listed” impairments in
the Social Security regulations, the claimant is disabled and
the application is approved. Id. Fourth, where the
impairment does not meet the conditions of one of the listed
impairments, the Commissioner determines the claimant’s
residual functional capacity (“RFC”).
Id. If the claimant’s RFC is such that she can
still perform past relevant work, she is not disabled and the
application is denied. Id. Fifth, if the claimant,
given her RFC, education, work experience and age is unable
to do any other work within the national economy, she is
disabled and the application is approved. Id.
Standard of Review
Court may affirm, modify or reverse the Commissioner’s
decision upon review of the record. See 42 U.S.C.
§ 405(g). Judicial review is limited, however, “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). Even where the record “arguably could
justify a different conclusion, ” the Court must accept
the Commissioner’s findings of fact as conclusive if
they are “supported by substantial evidence.”
See Whitzell v. Astrue, 792 F.Supp.2d 143, 148 (D.
Mass. 2011) (quoting Rodriguez Pagan v. Sec’y of
Health & Human Servs., 819 F.2d 1, 3 (1st Cir.
1987)) (internal quotation marks omitted); 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 v. Sec’y of Health
& Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)
(quoting Rodriguez v. Sec’y of Health & Human
Servs., 647 F.2d 218, 222 (1st Cir. 1981)) (internal
quotation mark omitted).
Commissioner’s factual findings, however, “are
not conclusive when derived by ignoring evidence, misapplying
the law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)
(citations omitted). Thus, where the ALJ made a legal or
factual error, Manso-Pizarro v. Sec’y of Health
& Human Servs., 76 F.3d 15, 16 (1st Cir. 1996)
(quoting Sullivan v. Hudson, 490 U.S. 877, 885
(1989)), “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); see 42 U.S.C. §
Before the ALJ
was extensive evidence regarding De Oliveira’s medical
history before the ALJ, including treatment records,
assessments and diagnoses regarding her asthma,
gastroesophageal reflux disease (“reflux
disease”), back pain, depression and anxiety. R. 36,
August 2009 through November 2012, De Oliveira received
primary care treatment for, inter alia, asthma,
reflux disease, obesity and back pain at Signature Medical
Group (“SMG”). R. 272-82, 299-301, 312-47. In
July 2010, after spending “most of the last year”
in Brazil, De Oliveira saw Dr. Robert Weinstein at SMG for
her asthma. R. 275. Dr. Weinstein noted that De Oliveira
needed regular follow-up care and he completed three-month
emergency disability forms with the qualification that De
Oliveira should eventually be able to return to work. R. 276.
Following another visit in August 2010, Dr. Weinstein updated
De Oliveira’s reflux disease medical protocol and noted
that De Oliveira reported her asthma improved with the use of
inhalers. R. 272-74. In September 2010, the status of De
Oliveira’s asthma was “fair” and Dr.
Weinstein prescribed a nebulizer. R. 346.
Oliveira has a “long history of chronic back pain,
” R. 337, and received an epidural steroid injection
“a number of years ago, ” at least prior to 2010,
R. 346. Sometime prior to mid-September 2010, she injured her
lower back moving furniture at home. Id. Dr.
Weinstein examined De Oliveira on September 16, 2010, noting
tenderness to the right lumbar region, painful flexion and
extension at sixty and twenty degrees, respectively,
“non-painful side-to-side motion left, ” equal
reflexes, intact sensory and motor findings and a negative
straight leg raise test. R. 346-47. As De Oliveira was not
taking medication for her back pain at the time, Dr.
Weinstein prescribed a muscle relaxant and a nonsteroidal
anti-inflammatory drug (“NSAID”) and recommended
ice, heat and exercises as treatment for the back pain.
See R. 27, 347.
after the September 16, 2010 doctor’s visit, De
Oliveira spent six months in Brazil. R. 344. Upon her return,
she sought treatment again from Dr. Weinstein on May 2, 2011.
R. 344-45. De Oliveira’s back pain was “flaring
up” but she was not taking her pain medication at that
time because she ran out while in Brazil. Id. De
Oliveira also reported that staying in one position for
“too long” caused pain and stiffness. R. 344. At
the May 2011 visit, Dr. Weinstein conducted a physical
examination and determined that she had tenderness to the
left lumbar region, painful flexion at sixty degrees,
non-painful extension, “non-painful side-to-side motion
left, ” equal reflexes, intact sensory and motor
findings and a negative straight leg raise test. Id.
Dr. Weinstein noted he would refer De Oliveira to physical
therapy (“PT”). R. 345.
than nine months later, having been in Brazil for the last
month, R. 337, in February 2012, De Oliveira again sought
treatment from Dr. Weinstein for her back pain, R. 337-39.
Dr. Weinstein examined De Oliveira’s back, finding
tenderness to the left lumbar region, painful flexion and
extension at forty-five and twenty degrees respectively,
painful side-to-side motion at twenty degrees on each side,
equal reflexes, intact sensory and motor findings and a
negative straight leg raise test. R. 338. De Oliveira
reported that taking Flexeril, a muscle relaxant,
“[did] help some” and that while “she did
go to PT [in 2011], ” she was doing a “home
program” at the time of the visit. R. 337-38. Later, on
May 9, 2012, De Oliveira returned to Dr. Weinstein for a
follow-up visit regarding hypertension and asthma. R. 333-34.
In addition, De Oliveira also reported that her back pain was
“flaring up” and that she was taking “a
lot” of medication. R. 333. Dr. Weinstein’s notes
indicate, however, that the pain was “positional”
and that he did not perform a back examination. R. 333-34.
September 24, 2012, De Oliveira returned to Dr. Weinstein for
her back pain. R. 323-25. Dr. Weinstein observed that
“[s]he ha[d] gone to PT and [it] didn’t help
much.” R. 323. De Oliveira reported that her back pain
was “worse in the morning, then on and off during the
day.” Id. The physical examination showed
tenderness to the left and right lumbar regions, painful
flexion and extension at ninety and twenty degrees
respectively, non-painful side-to-side motion, equal
reflexes, intact sensory and motor findings and a negative
straight leg raise test. R. 324. Dr. Weinstein also partially
completed an RFC questionnaire at that visit, R. 299-301, and
concluded that during an eight-hour work day De Oliveira
would be able to “stand/walk” for less than two
hours and sit for approximately four hours. R. 300. Dr.
Weinstein reported that De Oliveira could
“occasionally” lift and carry up to ten pounds,
“never” lift and carry twenty pounds and that she
would need to take hourly five-minute walking breaks. R.
300-01. According to Dr. Weinstein, De Oliveira’s
impairments would cause her to be absent from work about
three or more times per month. R. 301.
De Oliveira has a “long history of anxiety issues,
” R. 274, the earliest note in the record regarding her
mental impairments was from August 16, 2010, the same visit
where Dr. Weinstein changed De Oliveira’s reflux
disease medication, R. 272-74. De Oliveira reported
experiencing anxiety, tearfulness and difficulty
concentrating as a result of her husband being in Brazil and
her daughter and two-year old grandchild moving into her
home. Id. Treatment notes indicate that she
“fe[lt] anxious and depressed [and] want[ed] to go back
on meds.” R. 272. Dr. Weinstein prescribed De Oliveira
clonazepam. R. 274. Later, in September 2010, Dr. Weinstein
noted that while clonazepam provided “some” help,
De Oliveira was “still having a lot of stress”
and “some difficulty sleeping.” R. 346. Almost
nine months later, De Oliveira returned from her six-month
trip to Brazil. See R. 344. On May 2, 2011, De
Oliveira saw Dr. Weinstein for follow-up care of her
depression in addition to her back pain. R. 344-45. De