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Tucker v. Colvin

United States District Court, D. Massachusetts

September 28, 2016

TERRY E. TUCKER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          George A. O'Toole, Jr. United States District Judge

         The Commissioner of the Social Security Administration denied Terry Tucker's application for a period of disability and disability insurance benefits. Before the Court are Tucker's Motion to Set Aside Order of Social Security Administration (dkt. no. 17) and the Commissioner's Motion to Affirm the Commissioner's Decision (dkt. no. 20).

         I. Procedural History

         Tucker applied for Social Security disability benefits in April 2012, claiming disability since December 2011. (Administrative Tr. 24 [hereinafter R.].)[1] His application was initially denied on July 31, 2012 and denied upon reconsideration on February 8, 2013. (Id. at 24.) Tucker requested a hearing, which was held before Administrative Law Judge (“ALJ”) Stephen C. Fulton on November 21, 2013. (Id. at 43.) On January 28, 2014, the ALJ issued a decision concluding that Tucker was not disabled under the Social Security Act. (Id. at 24-38.) Tucker requested review of the ALJ's decision by the Appeals Council on February 12, 2014. (Id. at 17-20.) On June 11, 2015, the Appeals Council denied his request for review. (Id. at 3-6.) This denial rendered the ALJ's decision the final decision of the Commissioner and made the case ripe for review by this Court under 42 U.S.C. § 405(g).

         II. Background

         Tucker graduated from high school and completed the equivalent of one year of college courses. (Id. at 48.) Before the alleged onset of his disability, he worked as a telephone sales representative who solicited business for regional oil companies. (Id. at 50.) In 1998, Tucker began his own small business in the same field, using specially designed software that enabled telemarketers to work from home. (Id. at 49-52, 79.) Tucker closed his business at the end of 2011 and has not worked since. (Id. at 52.) He claims he suffers from various physical and mental impairments that limit his ability to work. (Id. at 52-53.) At the time of the ALJ's decision, Tucker was 59 years old. (Id. at 48.)

         A. Relevant Medical History

         i. South Shore Medical Center

         On November 22, 2006, Tucker was evaluated at South Shore Medical Center for management of hypertension and fibromyalgia. (Id. at 288.) Tucker reported symptoms of muscle aches, weight gain, and fatigue. (Id.) He stated that his anti-depressant medication, Citalopram, helped “a lot at first, ” but that he was unsure about its continuing efficacy. (Id.) Tucker also reported that he was “sleeping well” with the aid of a CPAP machine and trying to walk two miles per day. (Id.) Gregory Smith, M.D., noted that Tucker's hypertension was “in good control, ” ordered laboratory studies, and advised Tucker to improve his diet and exercise. (Id.)

         On June 13, 2007, Tucker received routine treatment for sinusitis. (Id. at 281.) He was advised to manage his symptoms with Sudafed or Amoxicillin. (Id.)

         On April 28, 2008, Tucker returned to the South Shore facility for another visit with Dr. Smith. (Id. at 281.) During this session, Tucker reported that he had not been taking blood pressure readings at home, despite having access to a cuff. (Id.)

         On December 9, 2010, Tucker returned for management of hypertension and depression. (Id. at 321.) During the evaluation, Tucker reported that he felt well. (Id.) Dr. Marina Shtern noted that Tucker's blood pressure and depression were “stable, ” and advised him to continue with his current regimen of care. (Id. at 322.)

         On June 28, 2012, Tucker returned to the South Shore facility, this time complaining of increased depression over the previous six months as a result of increased pain and financial difficulty. (Id. at 337.) He reported pain in his neck and left index finger, and paresthesia in all fingers of his left hand. (Id.) Dr. Shtern prescribed Wellbutrin to help manage Tucker's depression, and referred him to psychiatry for further management of his medication. (Id.)

         ii. Tucker's Function Report

         On April 27, 2012, Tucker completed a Social Security Administration Function Report describing the impact his impairments had on his day-to-day living.[2] (Id. at 184.) Tucker wrote that, on a good day, his routine included vacuuming, doing laundry, ironing, reading the newspaper, listening to the radio, and going for short walks. (Id. at 184, 186.) He noted that he could drive a car, pay bills, use a checkbook, and manage a savings account. (Id. at 187.) With respect to hobbies, Tucker wrote that his ability to ride his bike and take long walks had diminished due to pain and lack of energy. (Id. at 188.) Socially, Tucker reported that he sat around the kitchen table and visited with friends several times each month. (Id.) Physically, he identified several bodily movements, including lifting, squatting, bending, standing, and reaching, that were negatively affected by his impairments. (Id. at 189.) He reported that his ability to handle stress and changes in routine was “average.” (Id. at 190.)

         iii. John Fahey

         On June 1, 2012, John Fahey, Ph.D., performed a psychological evaluation of Tucker at the request of the Disability Determination Service. During the evaluation, Tucker reported a six year history of diffuse body pain centered in his neck, shoulders, and wrist. (Id. at 324.) He also complained that he was very easily fatigued and had difficulty remaining seated for any period of time. (Id.) Tucker told Fahey that a rheumatologist diagnosed him with fibromyalgia and that the rheumatologist continued to monitor his health. (Id.)

         Tucker reported that he closed his marketing business in December 2011 because of a combination of pain and depression. (Id.) At the time of the examination, his daily routine included eating breakfast, dressing, watching television, and reading. (Id. at 325.) Tucker also stated that he would clean his house on occasion, but described cleaning as exhausting work. (Id.) He occasionally spent time with friends and neighbors, but he reported that his depression had caused a marked decline in his overall level of socialization. (Id.) Dr. Fahey noted that Tucker had no history of psychotherapy and that Tucker's affect was consistent with depression. (Id. at 325-26.) Tucker was assigned a Global Assessment Functioning (“GAF”) score of 55.[3] (Id. at 324.)

         According to Dr. Fahey's assessment, Tucker was likely to understand, and able to follow, directions. (Id. at 326.) Additionally, Tucker was capable of relating well with others. (Id.) Dr. Fahey opined that Tucker's depressed mood and weak concentration may diminish his follow through with certain complex tasks, but that his function might improve with psychotherapy. (Id.)

         iv. Kenneth Rood and Alfredo Chan

         On July 2, 2012, Tucker visited Kenneth Rood, LMHC, and Alfredo Chan, M.D., for a clinical evaluation. According to the examiners, Tucker exhibited depression, anxiousness, diminished energy, diminished concentration, diminished interest and pleasure, and persistent worries. (Id. at 355.) Tucker was assigned a Global Assessment Functioning (“GAF”) score of 56. (Id. at 356.)

         On August 20, 2012, Dr. Chan conducted a psychiatric evaluation of Tucker. He diagnosed Tucker with major depression and assigned a GAF score of 55. (Id. at 351.)

         On October 29, 2012, Tucker returned for another examination with Mr. Rood and Dr. Chan. The examiners noted that Tucker was unable to engage in social situations and had difficulty remembering things, concentrating, and completing tasks. (Id. at 397.) They indicated that he required notes and numerous methods to remember when to complete tasks and that he had difficulty understanding directions regarding how to do new things. (Id.) They further noted that he had great difficulty with making decisions and following through; that he was withdrawn, tearful, and reluctant to go out socially; that he did not have company; that his punctuality and ability to take criticism were impaired; and that he became tearful and avoidant when he felt stressed. (Id. at 398.) They assigned Tucker a GAF score of 53. (Id.) Additionally, Mr. Rood and Dr. Chan opined that the examination by Dr. Fahey on June 1, 2012 was inconclusive because Dr. Fahey did not perform any formal testing to assess Tucker's cognitive functioning, depression, or anxiety. (Id.)

         v. JoAnne Coyle

         On July 18, 2012, Tucker was examined by JoAnne Coyle, Ph.D., an advising psychologist to the Disability Determination Service. Dr. Coyle determined that, due to mental impairment, Tucker was mildly limited in his abilities to perform activities of daily living and to maintain social functioning, and moderately limited in his ability to maintain concentration, persistence, or pace. (Id. at 92.) She also noted that Tucker had experienced no episodes of decompensation. (Id.) Dr. Coyle opined that Tucker was capable of understanding and remembering routine instructions, sustaining attention and concentration for routine tasks, and maintaining effort for extended periods of time over the course of a normal work week within acceptable pace and persistence standards. (Id. at 95.) She concluded that Tucker was able to adapt to minor changes in routine with a moderately limited ability to respond appropriately to changes in the work setting. (Id. 95-96.)

         vi. James Carpenter

         Tucker's initial application for disability was denied shortly after his visit with Dr. Coyle. (Id. at 24.) Following the initial denial, he applied for reconsideration. (Id.) On November 21, 2012, Tucker was examined on reconsideration by James Carpenter, Ph.D., an advising psychologist to the Disability Determination Service. Dr. Carpenter's opinion mirrored that of Dr. Coyle. He determined that Tucker's mental impairment mildly limited his abilities to perform activities of daily living and to maintain social functioning. (Id. at 105.) He also determined that Tucker was moderately limited in his ability to maintain concentration, persistence, or pace, and that there had been no episodes of decompensation. (Id.) He noted that Tucker could understand and remember routine instructions and sustain attention and concentration for routine tasks for extended periods of time over the course of a typical work week. (Id. at 106-07.) He also indicated that Tucker could adapt to minor changes in routine. (Id.) As to the nature and severity of the mental impairment, Dr. Carpenter opined that Tucker's account was generally credible, but that some statements were exaggerated and inconsistent with respect to the exact level of function. (Id. at 105.)

         vii. Mark Colb and M.A. Gopal

         On July 6, 2012, Tucker was examined by Mark Colb, M.D., an advising physician to the Disability Determination Service. In his assessment of Tucker's residual functional capacity (“RFC”), [4] Dr. Colb noted that Tucker had “exertional limitations.” (Id. at 93.) According to Colb, Tucker could occasionally lift and/or carry 50 pounds and could frequently lift and/or carry 25 pounds.[5] (Id.) He further noted that over the course of an eight-hour workday, Tucker could sit for six hours and could stand or walk for six hours. (Id.) According to Dr. Colb, Tucker could occasionally climb ramps or stairs; could occasionally climb ladders, ropes, or scaffolds; could occasionally stoop; could frequently balance; and could kneel, crouch, and crawl without limitation. (Id. at 94.) Ultimately, Colb opined that Tucker was not disabled. (Id. at 97.)

         On December 26, 2012, after Tucker applied for reconsideration, M.A. Gopal, M.D., an advising physician to the Disability Determination Service, concurred with Dr. Colb's assessment. (Id. at 104.)

         viii. Jeanne T. Hubbuch

         On November 5, 2013, Tucker was evaluated by Jeanne T. Hubbuch, M.D. Dr. Hubbuch wrote a letter dated November 18, 2013, in which she detailed Tucker's complaints and his reported history of impairments. The letter noted physical symptoms such as body pain and fatigue, as well as mental symptoms such as short-term memory loss. (Id. at 423.) Dr. Hubbuch wrote that Tucker was “totally disabled from even part-time temporary work due to his constellation of symptoms and no improvement for two years without working.” (Id. at 424.)

         ix. Franchine Yencho

         On November 19, 2013, Franchine Yencho, a vocational consultant, evaluated Tucker's employability. Yencho's evaluation contained a description of Tucker's medical status as it was reported by Tucker, as well as references to Dr. Hubbuch's letter. (Id. at 426-29.) Yencho opined that Tucker's medical condition “rendered him vocationally, totally disabled from engaging in and maintaining any regular gainful employment activity for the foreseeable future.” (Id. at 429.)

         B. Relevant Testimony

         i. Tucker

         Tucker testified that he owned and operated a telemarketing company from 1998 until 2011. (Id. at 49.) His company solicited business for regional oil companies and used software that enabled telemarketers to work from home. (Id. at 49-50.) As part of his work, Tucker managed an “office-type setting, ” traveled across New England, met with oil company executives, and installed computer equipment. (Id. at 50.) According to Tucker, he was forced to close his business in 2011 due to his medical conditions. (Id. at 61.) These conditions, he asserted, prevented him from going on the road and making presentations. (Id. at 62.) As a result, “[t]he clients vanished and then [his] employees vanished.” (Id.)

         Tucker testified that he suffered from fatigue, depression, and fibromyalgia. (Id. at 53.) He stated that he was “completely exhausted” when he woke up in the morning and that he was unable to get refreshing sleep. (Id. at 54-55.) Tucker added that he was “depressed and tired all the time, ” and that he experienced overwhelming body weakness. (Id. at 58.) He noted that these issues began years before he closed his business, but that he fought to continue his work. (Id. at 61.)

         Tucker also testified that he suffered from memory loss and that “it [was] difficult for [him] to remember any information that somebody might [give him].” (Id. at 55.) When asked how his cognitive problems would affect him in a work environment, Tucker replied that he had difficulty following instructions. (Id. at 58.) For example, he explained that “if somebody asked [him] to do ...


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