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Deane v. Colvin

United States District Court, D. Massachusetts

March 29, 2017

TONYA DEANE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.



         Plaintiff Tonya Marie Deane (“Deane” or “claimant”) brings this action pursuant to the Social Security Act (the “Act”), 42 U.S.C. §§ 405(g) & 1383(c)(3), challenging the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying her claim for Social Security Disability Insurance (“SSDI”) benefits and Supplemental Security Income (“SSI”) benefits. Before the Court are Deane's motion to reverse the Commissioner's decision [ECF No. 15] and the Commissioner's motion to affirm the decision [ECF No. 16]. In her motion, Deane challenges the decision of the Administrative Law Judge (“ALJ”) on two grounds: she claims that the ALJ (1) erred in his determination that claimant did not meet Listings 3.02A or 3.03A; and (2) erred in his evaluation of claimant's Residual Functional Capacity (“RFC”) by “cherry-picking” the mental health evidence and failing to fairly reflect claimant's moderate limitations in social functioning.

         As discussed below, the Court finds that the ALJ's decision is supported by substantial evidence and therefore DENIES the claimant's motion to reverse and GRANTS the Commissioner's motion to affirm.

         I. BACKGROUND

         A. Statutory and Regulatory Framework; Five-Step Process to Evaluate Disability Claims

         “The Social Security Administration is the federal agency charged with administering both the Social Security disability benefits program, which provides disability insurance for covered workers, and the Supplemental Security Income program, which provides assistance for the indigent aged and disabled.” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 42 U.S.C. §§ 423, 1381a).

         The Social Security Act (the “Act”) defines “disability” as the:

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); see also 42 U.S.C. §§ 416(i)(1), 1382c(a)(3)(A). To qualify as a disability, the inability must be severe, such that the claimant is unable to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511; see also Ross v. Astrue, Civ. A. No. 09-11392-DJC, 2011 WL 2110217, at *2 (D. Mass. May 26, 2011).

         When evaluating a disability claim under the Act, the Commissioner uses a five-step process, which the First Circuit has explained as follows:

All five steps are not applied to every applicant, as the determination may be concluded at any step along the process. 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” 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 residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted. Seavey, 276 F.3d at 5 (citing 20 C.F.R. § 416.920).

         B. Procedural Background

         On May 2, 2012, claimant filed an application for SSDI and SSI benefits, claiming disability from a combination of physical and mental impairments. [Tr. 9].[1] Claimant's alleged disability onset date is April 30, 2009. Id. Claimant's SSDI and SSI benefits claims were initially denied on September 13, 2012, and again upon reconsideration on June 7, 2013. Id. Claimant subsequently requested and was granted a hearing, which took place before ALJ Goodale on April 9, 2014. Id. Claimant testified at the hearing and was represented by counsel. Id. James F. Scorzelli, Ph.D., also testified at the hearing as a vocational expert. Id. On May 27, 2014, the ALJ issued a written decision finding that Deane was not disabled and therefore not eligible for SSDI or SSI benefits. [Tr. 9-21]. On July 20, 2015, the Appeals Council of the Social Security Administration denied Deane's request for review of the ALJ decision. [Tr. 1]. As a result, the ALJ's May 27, 2014 decision is the final decision of the Commissioner of Social Security subject to judicial review in federal district court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         C. Factual Background

         Deane was born on April 26, 1979, and alleges that her disability started on April 30, 2009, when she was thirty. [Tr. 19]. On May 2, 2012, Claimant applied for SSDI and SSI benefits, [Tr. 9, 104], alleging disability due to bipolar disorder, PTSD, fibromyalgia, chronic depression, ADHD, COPD, spinal arthritis, and degenerative disc disease, [Tr. 104]. Claimant completed high school and one year of college. [Tr. 19, 367]. She worked as an associate at various retail locations from 2002 to 2008, as a certified nursing assistant at a nursing home/assisted living facility from January 2000 to April 2009, and as a waitress at a fast food restaurant from 1993 to 2005. [Tr. 367]. She lives with her son and fiancé. [Tr. 41]. The claimant met the insured status requirements of the Social Security Act through June 30, 2013 (her last date insured). [Tr. 11, 38].

         Deane's extensive medical history is summarized below in pertinent part. Further information concerning Deane's medical history is provided, as needed, in the relevant sections. Richard Weiner, M.D., treated the claimant from April 2009 through 2012. [Tr. 465-550; 647- 749]. In a March 29, 2010 residual functional capacity (RFC) assessment, Dr. Weiner noted that the claimant is not a candidate for gainful employment. [Tr. 458, 461]. Dr. Weiner also commented that the claimant can only walk for 15 minutes at a time, experiences great back pain, can sit for only 30 minutes, and can carry a maximum of 10 pounds. [Tr. 462-63].

         The claimant received psychological treatment from NorthEast Health Services from April 2009 to November 2010. [Tr. 612-42]. Treatment notes mention mood swings and varying levels of depression and anxiety. Id. On April 7, 2009, T.J. Latimer, LMHC, at Northeast Health Services noted that the claimant was anxious and assigned her a Global Assessment of Functioning (“GAF”) score of 60. [Tr. 639-41].[2] On November 1, 2010, Donna Lentini, LMHC, at Northeast Health Services again assigned claimant a GAF score of 60. [Tr. 612]. The claimant's highest GAF score in the twelve months preceding the November 1, 2010 score assignment was 65. Id.

         On January 4, 2011, the claimant saw licensed psychologist Edwards Powers, Ph.D., for a psychodiagnostic interview and intellectual evaluation. [Tr. 998]. Most of the treatment notes consist of the claimant's self-reported conditions, but Dr. Powers did make some observations. He noted that Deane's behavior and attitude were attentive and responsive, her affect was alert and consistent with her calm mood, and that she was in no acute emotional distress. [Tr. 999]. Dr. Powers observed that Deane's thought process and content appeared normal. [Tr. 1000]. A cognitive test revealed that the claimant has an “average” intellectual endowment and a full IQ score of 97. Id. Dr. Powers assigned Deane a GAF score of 50. [Tr. 1001]. On September 12, 2012, Deane saw Dr. Powers for another psychodiagnostic interview, during which he made the same objective observations and again assigned a GAF score of 50 [Tr. 794-97].

         The claimant has reported to the emergency room for various issues, including pneumonia on January 22, 2010 [Tr. 803]; bronchitis on January 25, 2010 [Tr. 801-802]; wheezing, decreased air movements, and an upper respiratory infection on January 29, 2011 [Tr. 817-18]; shortness of breath, chronic obstructive pulmonary disorder/reactive airway disease, and pleuris on September 23, 2011 [Tr. 814]; and opiate dependence on September 24, 2012 [Tr. 844].

         The claimant received medical treatment from Tristan Medical between November 2012 and February 2014. [Tr. 886-901, 935-52]. Erika Cheesbro, PA-C, Brian Bonenfant, PA-C, and Chelsea Rector, PA-C, also all treated the claimant and generally noted that Deane's mood, affect, and memory were normal and that, in terms of respiratory function, her air movement was good and she had no wheezing, rales, rhonchi, or dyspnea. [Tr. 888, 892, 900, 938, 948].

         From January 2013 to February 2014, the claimant received treatment from George Haywood, MSW (Master of Social Work), Dr. Finkelstein, and Geoffrey Whitley, NP-C (Nurse Practitioner, Certified), at DCS Mental Health. [Tr. 1007-16, 1025-59]. On January 12, 2013, Haywood assigned the claimant a GAF score of 60 and diagnosed her with major depression and PTSD. [Tr. 1015]. The record contains additional treatment notes from the DCS clinic, but it is unclear who signed several of them. [Tr. 16].

         D. Administrative Hearing

         1. Deane's Testimony

         At the May 27, 2014 hearing, the claimant testified that she has asthma, chronic obstructive pulmonary disease (“COPD”), spinal problems, degenerative disc disease, arthritis, and fibromyalgia. [Tr. 35]. She said that she handles her own finances [Tr. 45], can drive herself short distances [Tr. 46-47], and has no income but receives food stamps and cash benefits. [Tr. 47-48]. She further testified that she has health insurance and that she occasionally receives financial support from family members. [Tr. 49]. Deane stated that she has always been the primary caretaker of her son and that she splits the household chores with her fiancé. [Tr. 74- 75].

         Deane testified that she stopped working in 2009 because of back pain and anxiety. [Tr. 52]. Deane stated that her anxiety, depression, PTSD, and ADHD render her unable to work fulltime. [Tr. 59-60]. She told the ALJ that she was sexually assaulted by a family member at the age of six and believes that her apprehension of other people and social situations stems from this experience. [Tr. 69, 85]. Two to five times a month, she has panic attacks involving flashbacks of being assaulted that make it difficult for her to breathe. [Tr. 68-69]. She stated that her anxiety and PTSD revolve “around strange places or men, ” and that she finds it particularly challenging to be around men. [Tr. 73]. Deane testified that she currently has no friends and that she does not go out socially. [Tr. 78-79]. Deane further stated that she experiences great difficulty in dealing with strangers. [Tr. 84]. She tries to minimize contact with other people because she feels uneasy in social situations, even with people she is unrelated to but acquainted with. Id. The claimant further testified that her depression is constant and that she feels anxiety approximately 90 percent of the time. [Tr. 87].

         2.Vocational Expert's Testimony

         At the hearing, the vocational expert testified that a person with Deane's limitations, as defined by the ALJ, cannot perform any of the claimant's past jobs (retail associate, certified nursing assistant, and waitress) because they all involve dealing with the public. [Tr. 96]. The vocational expert opined that a person with Deane's limitations could, however, perform other jobs that exist in the national or regional economy, such as being a mail clerk, hand cutter, or electronic assembler. [Tr. 96-97]. When the ALJ added the additional limitation of requiring two 20-minute breaks in addition to regular breaks and being “off task 15 to 20 percent of the workday, ” the vocational expert testified that a person with such limitations could not perform any of the claimant's past jobs and “would be unemployable” both in the regional and national economies. [Tr. 97-98].

         E. The ...

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