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Cook v. Berryhill

United States District Court, D. Massachusetts

March 27, 2017

AMY L. COOK, Plaintiff,
v.
NANCY BERRYHILL, [1]Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          David H. Hennessy, UNITED STATES MAGISTRATE JUDGE

         The Plaintiff, Amy L. Cook, seeks reversal of the decision by the Defendant, the Commissioner of the Social Security Administration (“the Commissioner”), denying her Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”), or, in the alternative, remand to the Administrative Law Judge (“ALJ”).[2] (Docket #11). The Commissioner seeks an order affirming her decision. (Docket #21).

         For the reasons that follow, Cook's Motion to Remand (Docket #11) is DENIED and Defendant's Motion for Order Affirming the Decision of the Commissioner (Docket #21) is ALLOWED.

         I. BACKGROUND

          A. Procedural History

         Cook filed an application for DIB on July 9, 2009, and an application for SSI on August 5, 2009, alleging in both that she had been disabled since August 8, 2008. (Tr. 324-37). The applications were denied initially and upon reconsideration. (Tr. 159-62). Cook requested a hearing on October 1, 2010 (Tr. 210-11), and a hearing was held before an Administrative Law Judge (“ALJ”) on December 5, 2011, (Tr. 80-120). On January 27, 2012, the ALJ issued a decision finding that Cook was not disabled. (Tr. 163-82). Cook requested a review of the decision by the Appeals Council. (Tr. 258-60).

         By order dated April 23, 2013, the Appeals Council vacated the ALJ's decision and remanded Cook's claim for further consideration. (Tr. 183-86). Specifically, the Appeals Council asked the ALJ to resolve two issues. First, the Appeals Council noted that the ALJ found that Cook had severe impairments of depression and post-traumatic stress disorder, resulting in mild to moderate difficulties in maintaining social functioning; however, the RFC contained no description of the mental functions that Cook could still perform despite these social limitations. (Tr. 184). The Appeals Council stated that such findings required an accompanying mental limitation. (Id.). Secondly, the Appeals Council stated that, in light of the ALJ's finding that Cook's cataracts, status-post-repair, were a severe impairment, the decision required the ALJ to discuss what, if any, visual limitations Cook continued to suffer as a result of her cataracts after surgical repair. (Id.). The ALJ failed to include this in his decision. (Id.).

         On November 13, 2013, the ALJ held another hearing. (Tr. 41-79). In a decision dated November 15, 2013, the ALJ again found Cook not disabled. (Tr. 22-40). Cook requested review of this decision on December 6, 2013. (Tr. 19-21). On June 30, 2014, the Appeals Council denied her request for review, making the ALJ's November 13, 2013 decision final and ripe for judicial review. (Tr. 1-3). Having timely pursued and exhausted her administrative remedies before the Commissioner, Cook filed a complaint in this Court on August 15, 2014, pursuant to 42 U.S.C. § 405(g). (Docket #1). Cook filed the motion for reversal or remand on January 30, 2015, (Docket #11), and the Commissioner filed a cross-motion on May 14, 2015, (Docket #21).

         B. Personal History

         At the time she claims she became disabled, Cook was forty-four years old. (Tr. 324). Cook is a high school graduate and completed two years of college, graduating with an Associate's Degree in Science. (Tr. 84-85). She has no past relevant work. (Tr. 56). Cook has a driver's license and lives in an apartment with her boyfriend. (Tr. 47, 94, 553).

         C. Medical History

         On December 22, 2008, Cook was seen by Dr. Trister for complaints related to hypothyroidism, shortness of breath, coughing, fatigue, wheezing, and tobacco dependence.[3] (Tr. 544). Trister noted that Cook had diabetes and was depressed. (Id.). Trister stated that Cook's behavior was adequate and she was emotionally stable. (Id.). Trister diagnosed Cook with hypothyroidism and chronic obstructive pulmonary disease (“COPD”) and counseled Cook regarding her tobacco use and diet.[4] (Tr. 545). At a follow-up visit on May 1, 2009, Cook complained of episodes of blurred vision lasting twenty to thirty minutes. (Tr. 538). Physical examination revealed painful joints and bilateral expiratory wheezes. (Id.). Dr. Trister again noted that Cook's behavior was adequate and she was emotionally stable. (Id.). Cook returned for a follow-up on June 15, 2009, where Dr. Trister noted poor compliance with medical recommendations. (Tr. 533). At a July 7, 2009 follow-up visit, Cook complained of pain in multiple joints, stiffness, myalgia, limited range of motion, blurred vision, depressed mood, anhedonia, poor appetite and sleep, fatigue, restlessness, irritability, difficulty in concentrating, poor memory and an inability to make decisions. (Tr. 531). Dr. Trister noted that Cook was obese and diagnosed her with hypothyroidism, COPD, vision change, and depression. (Tr. 531-32).

         On October 7, 2009, Dr. Moss, Cook's ophthalmologist, stated that Cook had a cataract first diagnosed on June 17, 2009, and that he expected a good prognosis for restoring vision with a planned cataract surgery. (Tr. 557-59).

         On November 4, 2009, Cook returned to Dr. Trister complaining of chronic fatigue, weakness, lack of energy, poor concentration and motivation, weight gain, hair loss, frequent colds, depressed mood, insomnia, and an unstable appetite. (Tr. 603). Her diagnoses remained unchanged. (Tr. 604).

         On November 29, 2009, Cook fell as she was coming out of her bedroom; however, she was able to get up. (Tr. 624). After twenty-four hours, she noted some unsteadiness. (Id.). By December 1, 2009, she noted a feeling of weakness involving the left arm and leg with dragging of her left foot and some numbness over the left side of her face. (Id.). She was then seen at UMass Medical Center and sent home after examination. (Id.). Dr. Trister later characterized this episode as a transient ischemic attack (“TIA”). (Tr. 649). On that date, a CT of her head was taken revealing a normal exam. (Tr. 594). A CT angiography of her neck and head also taken on that date was unremarkable. (Tr. 595).

         On December 2, 2009, an MRI of Cook's brain was performed due to her complaints of left-sided weakness, right-sided sensory loss, headaches, and gait instability. (Tr. 590). The MRI revealed no acute intracranial abnormality but mild nonspecific increased T2 signal foci in the cerebral white matter and a possible small posterior fossa arachnoid cyst in the retrocerebellar location. (Tr. 591). Differential diagnoses included migraine headaches, chronic small vessel ischemic change, and mild demyelinating or inflammatory process. (Id.). A cervical MRI was also performed on the same day due to Cook's gait instability. (Tr. 592). The imaging revealed no acute abnormality or evidence of cord compression. (Tr. 593). The imaging did show mild spondylotic changes, most prominent at the C4-C5 and C5-C6 levels with mild to moderate left neural foraminal stenosis. (Id.).

         On December 8, 2009, Dr. Och, a psychiatrist, composed a narrative report stating that Cook suffered from major depressive disorder with psychotic features. (Tr. 702). Cook had been under Dr. Och's care since August 11, 2009.[5] (Tr. 826). Dr. Och stated that Cook had a sad mood, depressed affect, poor energy, experienced hallucinations, and suffered from poor sleep. (Tr. 702). Dr. Och opined that these symptoms interfered with Cook's functioning and rendered her unable to do any type of work for at least one year. (Id.).

         Pursuant to orders by Dr. Trister, a brain/head MRI was performed on December 11, 2009. (Tr. 583, 650). The results were normal. (Tr. 585, 647). At her follow-up appointment with Dr. Trister on that date, Cook complained of no improvement in her dizziness and continued left side weakness and numbness. (Tr. 647).

         On December 16, 2009, Dr. Savla, a neurologist, examined Cook. (Tr. 588). Physical examination revealed mild left pronator drift, slightly slurred speech, slow gait, and some circumduction of the left leg. (Id.). Cook could extend her leg up to thirty degrees and had upgoing toes on the left side. (Id.). Dr. Savla diagnosed right cerebro-vascular accident (“CVA”) (stroke) with left hemiparesis. (Tr. 588). Dr. Savla opined that the etiology of the stroke was hypertension and prescribed one baby aspirin daily. (Tr. 599).

         On February 16, 2010, Cook reported to Dr. Och that she was “not too bad, ” reporting that she had woken up twice with hallucinations and nightmares of childhood events.[6] (Tr. 793).

         Cook followed up with Dr. Trister on February 25, 2010 complaining of continued dizziness, occipital headache, fatigue, and poor concentration. (Tr. 632). An occipital nerve block was administered using Lidocaine and Kenalog. (Tr. 632-33).

         On April 6, 2010, Dr. Och composed a subsequent narrative report. (Tr. 826). Dr. Och stated that he had treated Cook since August 11, 2009 for depression and anxiety as well as hallucinations. (Id.). Dr. Och reported that Cook's mood had improved with medication but psychotic symptoms continued. (Id.). He opined that Cook was “totally and permanently disabled” at this time. (Id.).

         Cook followed-up with Dr. Och on April 7, 2010. (Tr. 792). Dr. Och noted that Cook's hallucinations were improved overall and that her depression was “under good control.” (Id.).

         On April 15, 2010, Dr. Och completed a Psychiatric/Psychological Impairment Questionnaire. (Tr. 838-45). Dr. Och diagnosed Cook with major depressive disorder with psychotic features and a global assessment of functioning (“GAF”) score of 50.[7] (Tr. 838). Dr. Och indicated that Cook's psychiatric condition would exacerbate her chronic pain issues. (Tr. 844). Dr. Och stated that Cook's impairments would last at least twelve months and that she was not a malingerer. (Id.). Dr. Och opined that Cook's prognosis was fair. (Tr. 838). Clinical findings included poor memory; appetite disturbance with weight change; sleep disturbance; mood disturbance; emotional liability; hallucinations; recurrent panic attacks; anhedonia or pervasive loss of interests; psychomotor agitation or retardation; paranoia or inappropriate suspiciousness; feelings of guilt/worthlessness; difficulty thinking or concentrating; suicidal ideation or attempts; social withdrawal or isolation; blunt, flat, or inappropriate affect; decreased energy; and generalized persistent anxiety. (Tr. 839). Dr. Och noted that Cook's primary symptoms were a depressed mood, visual hallucinations, and anxiety with her depression and anxiety being the most severe. (Tr. 840). Dr. Och stated that Cook was markedly limited, defined as effectively precluded, in the following abilities: remember location and work-like procedures; understand and remember one or two-step instructions; understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; work in coordination with or proximity to others without being distracted by them; complete a normal workweek without interruptions from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; accept instructions and respond appropriately to criticism from supervisors; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the work setting; awareness of normal hazards and taking of appropriate precautions; travel to unfamiliar places or use public transportation; and set realistic goals or make plans independently. (Tr. 841-43). Dr. Och stated that Cook was moderately limited, defined as significantly affected, but not totally precluded, in the following abilities: carry out simple one or two-step instructions; sustain ordinary routine without supervision; make simple work related decisions; interact appropriately with the general public; ask simple questions or request assistance; and get along with co-workers or peers without distracting them or exhibiting behavioral extremes. (Id.). Dr. Och concluded that Cook was incapable of even “low stress” in the workplace, and that she would be absent from work more than three times a month as a result of her impairments. (Tr. 844-45).

         On May 11, 2010, Dr. Och stated that Cook was “[d]oing well” and “[s]table with meds.” (Tr. 791). Cook reported that her sleep was “good” and that her auditory hallucinations had decreased. (Id.). On June 7, 2010, Cook stated that she was doing “OK” except for some visual hallucinations. (Tr. 790). Dr. Och adjusted her medication in response. (Id.).

         On June 8, 2010, Dr. Trister completed a Multiple Impairment Questionnaire.[8] (Tr. 812-20). Dr. Trister diagnosed Cook with hypertension, hypothyroidism, depression, anxiety, hyperlipidemia, dizziness, chronic back and neck pain, diffuse myalgia, and bilateral cataracts. (Tr. 813). Dr. Trister rated Cook's prognosis as fair. (Id.). Dr. Trister stated that Cook was chronically fatigued, weak, depressed, and anxious, and had intermittent moderate-to-severe dizziness which affected her activities of daily living. (Id.). Her primary symptoms were chronic diffused pain in her shoulders, mid back, lower back, and legs, depression, anxiety, fatigue, and insomnia due to pain and depression. (Tr. 814). Dr. Trister observed that Cook's pain was constant and rated it an eight to nine on a scale of ten. (Tr. 814-15). Dr. Trister opined that, in an eight-hour day, Cook could, in total, sit for less than one hour and stand/walk for less than one hour. (Tr. 815). Dr. Trister stated that Cook would need to get up and move around every ten minutes for a five to ten minute period. (Tr. 815-16). Dr. Trister further opined that Cook could only occasionally lift or carry up to five pounds and had significant limitations in doing repetitive reaching, handling, fingering, or lifting. (Tr. 816). He concluded that Cook had marked limitations in using her upper extremities that essentially precluding her from using them in a competitive eight-hour work day. (Tr. 816-17). Dr. Trister opined that Cook's symptoms would constantly interfere with her attention and concentration, she was incapable of even low work stress, and was likely to be absent from work due to her conditions more than three times a month. (Tr. 818-19). Stating that she was not a malingerer, Dr. Trister concluded that Cook was unable to work. (Tr. 818).

         At a June 9, 2010 appointment with Dr. Trister, Cook reported a depressed mood and insomnia, complaining of a lack of motivation, fatigue, and weakness. (Tr. 725). With respect to her complaints of depression, Dr. Trister found that “[o]verall, patient is stable at present.” (Id.). Cook also reported widespread pain, stiffness, irritability, and nonrestorative sleep. (Id.). Physical examination revealed multiple tender muscular, musculotendinous, capsular, and ligamentous points. (Id.). Dr. Trister diagnosed hypothyroidism, depression, and myofascial pain syndrome. (Tr. 726). That same day, Dr. Trister filled out a form provided by Cook as part of an application for State welfare benefits in which he indicated that Cook had multiple joints pain, which he did not expect would improve, as well as depression, anxiety, hypothyroidism, hypertension, and cataract. (Tr. 713-21). With respect to Cook's mental impairments, Dr. Trister noted that her appearance, attitude, behavior, orientation, speech, thought process, and cognition were all normal and that she had not experienced hallucinations. (Tr. 718). Dr. Trister stated that Cook had a depressed mood and affect. (Id.). Dr. Trister indicated that Cook's impairments affected her ability to work. (Tr. 721). Also on that date, Dr. Trister wrote a letter opining that Cook was totally disabled. (Tr. 795-96).

         At a follow-up appointment with Dr. Och on July 13, 2010, Cook stated that she was “OK” but was still experiencing visual hallucinations. (Tr. 789). Dr. Och again adjusted Cook's medications. (Id.).

         On July 30, 2010, Dr. Trister completed a Neurological Disorder form in which he observed that Cook used a walker for balance and had a slow and unsteady gait. (Tr. 724). Dr. Trister stated that Cook had no persistent motor dysfunction in her upper extremities and only mild persistent motor dysfunction in her lower extremities. (Id.). No visual, auditory, or speech changes were detected. (Id.). Dr. Trister offered a fair prognosis. (Id.).

         On August 11, 2010, Dr. Och noted that Cook's mood was stable and her anxiety was under control although issues remained with respect to her sleep. (Tr. 788).

         Cook followed-up with Dr. Trister on September 1, 2010. (Tr. 805). Dr. Trister stated that Cook's depression was stable at present with no complaints and that she was suffering no adverse effect from her medications. (Id.). Dr. Trister also noted that Cook's hypothyroidism was stable at present and that she was tolerating therapy well and that control of her hypertension was adequate. (Id.).

         On September 15, 2011, Cook had a visit with Dr. Och after having moved to Florida and back with her boyfriend. (Tr. 787). Cook reported that she was forgetful and still experienced auditory hallucinations and nightmares. (Id.). Dr. Och reported that Cook appeared to be in a good mood, and was pleasant although she was stressed. (Id.).

         On September 20, 2011, Dr. Trister found that Cook's hypothyroidism was stable and noted that, with respect to her hypertension, Cook reported feeling well. (Tr. 798). While Cook complained of a lack of motivation, fatigue, and weakness, Dr. Trister stated that her depression was stable and noted that Cook had reported that her medications had been somewhat effective. (Id.).

         At a follow-up appointment on September 29, 2011, Dr. Och reported that Cook was “doing well” and had no issues with her medications. (Tr. 786).

         On October 25, 2011, Dr. Och stated that Cook “[s]eems better [w]ith no acute psychosis” and was “less depressed” but did have one incident of hallucinations. (Tr. 860). Dr. Och increased Cook's dosage of Prozac and Abilify. (Id.).

         Later that day, Cook returned to Dr. Trister complaining of a cough, sneezing, headache, chills, and myalgia. (Tr. 127). Dr. Trister again noted, that with respect to her hypertension, Cook reported feeling well, and that the current therapy for Cook's hypothyroidism was effective. (Id.). Dr. Trister observed that Cook's mood was “ok.” (Id.).

         On November 22, 2011, Dr. Och noted that Cook was “[g]reatly improved, ” okay on her medications, and was “no longer psychotic.” (Tr. 859). On December 20, 2011, Dr. Och observed that, except for a cold, ...


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