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De Oliveira v. Colvin

United States District Court, D. Massachusetts

June 20, 2016

ELBA S. DE OLIVEIRA, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         On May 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.[1] 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.

         II. Factual Background

         De 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.

         III. Procedural History

         De 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.

         IV. Legal Standards

         A. Entitlement to Disability Benefits and Social Security Income

         A 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.[2] 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.

         The 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.

         B. Standard of Review

         This 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).

         The 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. § 405(g).

         V. Discussion

         A. Before the ALJ

         1. Medical History

         There 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, 268-347.

         a. Physical Impairments

         From 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.

         De 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.

         Shortly 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.

         More 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.

         On 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”[3] 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.

         b. Mental Impairments

         While 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 ...


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