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Payne v. Colvin

United States District Court, D. Massachusetts

February 23, 2017

ERICA PAYNE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER ON PLAINTIFF'S MOTION TO REVERSE AND DEFENDANT'S MOTION TO AFFIRM

          Leo T. Sorokin United States District Judge.

         For the reasons that follow, the Court DENIES Plaintiff's Motion to Reverse (Doc. 20) and ALLOWS Defendant's Motion to Affirm (Doc. 22) the denial of Plaintiff's application for disability insurance benefits (“DIB”).

         I. BACKGROUND

         On May 29, 2012, Plaintiff Erica Payne filed an application for DIB. Administrative Record (“AR”) at 196. Her alleged onset date of disability (“AOD”) is January 1, 2008, and her date last insured (“DLI”) was September 30, 2011.[1] Id. Plaintiff was born on July 17, 1977. Id. at 291. Between 1997 and 2007, Plaintiff performed a variety of jobs, including as a customer service representative, receptionist, and animal care provider. Id. at 319. She was thirty years old on her AOD, thirty-four on her DLI, and thirty-five when she applied for DIB. At the time of her application, Plaintiff alleged she was disabled because of asthma, “constant infection, ” and allergies. Id. at 196.

         The Social Security Administration (“SSA” or “Commissioner”) denied Plaintiff's application initially and upon reconsideration. Id. at 20. Plaintiff requested and was granted a hearing before an Administrative Law Judge (“ALJ”). Id. Prior to the hearing, Plaintiff filed a memorandum stating that she suffered from “chronic sinusitis, tonsillar stones, asthma, vertigo, malodorous breath, bilateral feet and knee pain, anxiety, severe smoke sensitivity, . . . symptoms associated with attention deficit hyper disorder, ” and “severe obesity.” Id. at 271. The hearing took place on January 22, 2014. Id. at 40. Plaintiff testified at the hearing and was represented by counsel.[2] Id. at 43, 281.

         On March 11, 2014, the ALJ issued a decision finding Plaintiff had not been disabled during the relevant time period. Id. at 34. The ALJ found that during the relevant time period, Plaintiff (1) did not engage in substantial gainful activity; (2) had the severe impairments of “recurrent sinonasal infections status post adenoidectomy” and “persistent sinus thickening and opacification of a hypoplastic left maxillary sinus status post hardware removal”; (3) did not have an impairment or combination of impairments that met or equaled a listed impairment in the Social Security regulations; (4) had the residual functional capacity to perform light work, except that she could only stand for about two or three hours over the course of an eight-hour workday and she “should avoid exposure to extreme cold, extreme heat, or pulmonary irritants such as smoke and dust”; and (5) was capable of performing past relevant work as a mail room worker, check processor, receptionist, and customer service worker. Id. at 22-30.

         Plaintiff asked the SSA's Appeals Council to review the ALJ's decision. On August 11, 2015, the Appeals Council denied Plaintiff's request for review. Id. at 4. Plaintiff then filed this action pro se. Doc. 1.

         On May 10, 2016, Plaintiff filed the instant Motion to Reverse. Doc. 20. On June 21, 2016, Defendant filed the instant Motion to Affirm. Doc. 22. On January 25, 2017, Plaintiff requested an extension of time to respond to Defendant's Motion. Doc. 25. The Court granted Plaintiff's request. Doc. 26. Plaintiff has filed a reply, Doc. 30, and this matter is now ready for decision.

         II. LEGAL STANDARDS

         A. Entitlement to Benefits

         A claimant's entitlement to DIB 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. § 423(d)(1)(A). When considering applications for benefits, the SSA “employs a five step process to determine if an individual is disabled within the meaning of the Social Security Act.” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citation omitted). “All five steps are not applied to every applicant, as the determination may be concluded at any step along the process.” Id. “The steps are: 1) if the applicant is engaged in substantial gainful work activity, the application is denied; 2) if the applicant does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the ‘listed' impairments in the Social Security regulations, then the application is granted; 4) if the applicant's ‘residual functional capacity' [RFC] is such that he or she can still perform past relevant work, then the application is denied; 5) if the applicant, given his or her [RFC], education, work experience, and age, is unable to do any other work, the application is granted.” Id. (citation omitted).

         The claimant bears the burden of proof for the first four steps, and must furnish medical or other evidence of the existence of a disability. Britt v. Colvin, 125 F.Supp.3d 349, 353 (D. Mass. 2015). If the applicant has shown “that he or she is unable to do past work . . ., the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the applicant can still perform.” Seavey, 276 F.3d at 5 (citation omitted).

         An ALJ must consider all of the evidence in the case record, 20 C.F.R. § 404.1520(a)(3), and resolve any conflicts in the evidence. Rodriguez v. Sec'y of Health and Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). However, the ALJ need not “directly address[] in [the] written decision every piece of evidence” or make “explicit credibility findings as to each bit of conflicting testimony, so long as [her] factual findings as a whole show that [she] implicitly resolved such conflicts.” N.L.R.B. v. Beverly Enters.-Mass., Inc., 174 F.3d 13, 26 (1st Cir. 1999) (citations, alterations, and internal quotation marks omitted); accord Blackette v. Colvin, 52 F.Supp.3d 101, 119 (D. Mass. 2014).

         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). However, judicial 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). 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.” 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); see § 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.” Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (citation and internal quotation marks omitted).

         A court “may review the ALJ decision solely on the evidence presented to the ALJ.” Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001). If a claimant presented new evidence to the SSA's Appeals Council, the Court may review the denial of appeal in light of that evidence, giving “great deference” to the Council's determination that the evidence “did not justify disturbing the ALJ decision, ” unless the Council “articulated” an “egregiously mistaken ground” for that determination.[3] Id. at 5-6. If a claimant presents new evidence to the Court that was not presented to the SSA, the Court may remand for consideration of the evidence, “but only upon a showing that [the] evidence is material and that there is good cause for the failure to incorporate [it] into the record in a prior proceeding.”[4] Seavey, 276 F.3d at 9 (citation and internal quotation marks omitted).

         III. PLAINTIFF'S MEDICAL RECORDS

         In this section, the Court will summarize Plaintiff's medical records, focusing in particular on documents from the relevant time period.[5]

         In December 1994, when she was seventeen years old, Plaintiff received jaw surgery to address a skeletal abnormality. AR at 580-81. The surgery involved the insertion of titanium implants in her jaw. Id. at 586. At the ALJ hearing, Plaintiff stated that she thinks she became disabled “six months after the jaw surgery, ” because she “began to experience congestion [and] chronic sinus infections, ” among other problems. Id. at 56, 58. However, her lawyer at the hearing acknowledged there were “a number of years” in between the surgery and her AOD during which she worked, i.e., engaged in substantial gainful activity. Id. at 58; see also id. at 319 (Plaintiff's work history).

         Plaintiff presented no medical records from 2007 or 2008. Id. at 59. The earliest medical record during the relevant time period is from February 19, 2009, when Plaintiff visited Dr. Herbert Krohn. Id. at 525-26. Plaintiff complained of a one-day old sinus infection, for which she was prescribed Zithromax and Claritin. Id.

         On April 15, 2009, Plaintiff visited Dr. Sarah Russell. Id. at 522. She “appear[ed] well” but presented “with symptoms consistent with [neck] muscle strain in the setting of working in data entry in a less than ergonomically correct work station.”[6] Id. Plaintiff rated her pain at three on a scale of zero to ten. Id. at 523. She was instructed to take ibuprofen and to stretch after the pain resolved. Id. at 522.

         On December 7, 2009, Plaintiff visited an urgent care office, complaining that she had had a sinus infection for three days, with a “sore throat and runny nose, ” along with chills and “increased facial pressure.” Id. at 520. She again rated her pain at three, and was discharged with a regimen of nasal spray and Mucinex. Id. at 519.

         On December 8, 2009, Plaintiff visited Dr. Stacey Tutt Gray, and explained that she had sinus infections “two or three times per year.” Id. at 441. Dr. Gray examined Plaintiff and found that although Plaintiff was “well-appearing” and “in no acute distress, ” she had severe adenoid hypertrophy with severe inflammation and should receive an adenoidectomy.[7] Id. at 442.

         Plaintiff received an adenoidectomy on January 20, 2010. Id. at 432. On February 10, 2010, Dr. Gray saw Plaintiff and examined her, finding her to be “doing very well postoperatively” and to be “feeling quite well.” Id.

         On February 18, 2010, Plaintiff visited Dr. Ariel Frey-Vogel. Id. at 511. Plaintiff complained that she was “tired all of the time” but said she did not feel depressed. Id. After physical examination, Dr. Frey-Vogel found that (1) Plaintiff's nasal passages were unobstructed and she had no nasal discharge; (2) her throat was a normal color without tonsillar englargement; (3) her breathing was clear; (4) she had normal strength, coordination and gait; and (5) she was “alert and oriented for age, normal mood and affect.” Id. at 514.

         On March 31, 2011, Plaintiff visited Dr. Frey-Vogel. Id. at 487. She complained of arm pain and foot pain. Id. With respect to her foot, Plaintiff stated that when she was on her feet for more than eight hours, the soles of her feet would “get bright red and painful” so that she could not “stand on them.” Id. She complained that this condition “prevent[ed] her from taking a job where she needs to be on her feet.” Id. Dr. Frey-Vogel found the etiology of Plaintiff's foot pain “[u]nclear” and recommended evaluation by a rheumatologist. Id. at 488.

         On August 31, 2011, Plaintiff visited Dr. Gray and told her that “she doesn't really get sinus infections anymore, but she does continue to have ‘flare ups' of her symptoms.” Id. at 431. Plaintiff told Dr. Gray that that “she still gets extremely systematically ill, ” and “is so sick that she is incapacitated and has to be on ‘bed rest' for at least a week.” Id. Plaintiff said that this type of “systematic[] ill[ness]” occurs “a few times per year, most recently a few months ago.” Id. Dr. Gray wrote that Plaintiff's “recurrent symptoms are a bit strange, ” and “[i]t sounds as if she is experiencing recurrent viral infections.” Id. Dr. Gray stated Plaintiff was “well-appearing” and “in no acute distress.” Id.

         On September 1, 2011, Plaintiff visited Dr. Frey-Vogel. Id. at 479. She stated that she had foot pain, which kept “her off of her feet.” Id. at 480. Dr. Frey-Vogel gave her the contact ...


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