United States District Court, D. Massachusetts
ORDER ON PLAINTIFF'S MOTION TO REVERSE AND
DEFENDANT'S MOTION TO AFFIRM
Sorokin United States District Judge.
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”).
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. 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.
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. Id. at 43, 281.
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.
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.
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.
Entitlement to Benefits
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).
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
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).
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). 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).
“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. 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.” Seavey, 276 F.3d at 9 (citation
and internal quotation marks omitted).
PLAINTIFF'S MEDICAL RECORDS
section, the Court will summarize Plaintiff's medical
records, focusing in particular on documents from the
relevant time period.
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).
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.
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.” 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.
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.
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. Id. at 442.
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
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.
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.
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
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 ...