United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
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.
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.
Statutory and Regulatory Framework; Five-Step Process to
Evaluate Disability Claims
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).
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).
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.
2, 2012, claimant filed an application for SSDI and SSI
benefits, claiming disability from a combination of physical
and mental impairments. [Tr. 9]. 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
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].
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].
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]. 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.
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].
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].
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].
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].
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].
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].
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].