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Pereira v. Berryhill

United States District Court, D. Massachusetts

August 17, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This is an appeal of the final decision of the Commissioner of the Social Security Administration (“SSA”) denying Kerri Pereira's application for Social Security Disability Income (“SSDI”) benefits. The Commissioner denied the application, finding that Pereira was not disabled within the meaning of the Social Security Act during the relevant period.

         Pereira appeals the Commissioner's decision on the grounds that the decision was not supported by substantial evidence pursuant to 42 U.S.C. § 405(g) and was erroneous as a matter of law. Specifically, she contends (1) that the Administrative Law Judge (“ALJ”) erroneously determined her physical residual functional capacity (“RFC”) by making a lay assessment that was not supported by evidence from an acceptable medical source; (2) that the ALJ erroneously ignored medical evidence when determining her physical RFC; and (3) that the ALJ relied on insufficiently detailed evidence when determining her mental RFC. She further contends that those errors invalidate the independent vocational expert's analyses on which the ALJ relied in determining whether there were other jobs existing in significant numbers in the national economy.

         Pending before the Court are Pereira's motion to reverse the decision of the Commissioner and the Commissioner's motion to affirm her decision. For the reasons stated below, the decision of the ALJ will be affirmed.

         I. Background

         Kerri Pereira was 39 years old in 2012, the date that she was last insured. (A.R. 615, 616).[1] She is a high-school graduate and has worked as a short-order cook and in a salon. (A.R. 213, 214, 381). She did not work from May 1, 2011, the date of her alleged onset, through her last insured date of December 31, 2012. (A.R. 442).[2]

         Pereira claims total disability stemming from back pain, overweight status post-gastric-bypass surgery, depressive and anxiety disorders, and post-traumatic stress disorder. (A.R. 443). She also claims disability because of abdominal pain, hernias, and urinary tract infections. (Id.). Among other things, she claims to suffer diarrhea for three to four hours after eating. (Id.).

         A. Medical History

         In November 2009, Pereira underwent gastric-bypass surgery. (A.R. 269).

         In April 2011, Estella Moriarty assessed Pereira's psychological health. (A.R. 328-39). Moriarty observed that Pereira was withdrawn, nervous, and anxious; depressed with flat affect; and had difficulties communicating effectively, but had normal appearance, eye contact, speech, thoughts, intelligence, memory, insight, and judgment. (A.R. 333). She noted that Pereira had anxiety with panic attacks and post-traumatic stress disorder symptoms, depression with irritability, low motivation, poor coping skills, and mood swings. (A.R. 335). Pereira reported trauma ten years earlier when her best friend murdered another friend then killed himself. (A.R. 336-37). Moriarty diagnosed her with post-traumatic stress disorder and depressive disorder. (A.R. 338).

         In July 2011, Pereira saw LiLi Huang, M.D., at the Lahey Clinic. (A.R. 359-68). Pereira reported tiredness, arthralgias, anxiety, emotional problems, and heartburn. (A.R. 361). She reported she did not have pain in her eyes, chest, ears, abdominals, and pelvis, nor did she have diarrhea, dizziness, confusion, suicidal thoughts, or sleep disturbances. (Id.). She also reported a recent flare of depression. (A.R. 364). Dr. Huang noted that she was doing very well after the gastric bypass and that she had a gastroesophageal reflux disorder that was under control with medication. (A.R. 364). Dr. Huang also noted that she reported chronic abdominal pain but had a negative work-up, with a normal upper GI with small bowel follow-through. (A.R. 365). Pereira also reported a recent back-pain episode associated with muscle spasm, and Dr. Huang advised her to avoid heavy lifting. (A.R. 364, 367).

         In August 2011, Pereira attended a psychopharmacology intake meeting with Julie Larson, RNCS. (A.R. 346). Pereira reported depression and anxiety with low energy and motivation but stated that she functioned adequately, including cooking and cleaning, although she worried about everything. (A.R. 347). Larson diagnosed post-traumatic stress disorder and depressive disorder and prescribed Prozac and Trazodone. (Id.).[3]

         On September 3, 2011, Pereira presented to Addison Gilbert Hospital in Gloucester, Massachusetts with abdominal pain, nausea, and diarrhea. (A.R. 316). She reported a mild pain that became increasingly severe, with a severity of 10/10 at its peak. (Id.). A CT scan showed a dilated loop of the small bowel and a large amount of stool in the right colon. (A.R. 320). Within the next twenty-four hours, her pain had resolved completely and she was discharged. (Id.).

         Pereira also saw Dr. Huang in September 2011, who noted the episode of abdominal pain that required her to go to the emergency room, and another episode shortly thereafter. (A.R. 356). Pereira reported that since those two episodes she had experienced no more abdominal pain and was doing well. (Id.).

         Pereira next saw Dr. Huang in January 2012, who noted that she was doing well after the gastric bypass and had done well after a hernia repair the previous year. (A.R. 353). Dr. Huang also noted that Pereira had symptoms of depression, but that she was doing well with medication. (Id.).

         Also in January 2012, Pereira saw Annette Kawecki, M.D., at the Lahey Clinic. Pereira reported that she felt less anxious and overwhelmed, but had trouble sleeping. (A.R. 381). She reported that she wanted to start working out now that her son was in daycare in the morning and she had more time for herself. (Id.). She reported that her children were her life and that she was very happy in her role as a mother and homemaker. (Id.). Dr. Kawecki noted she was alert, oriented, and less anxious with improved range of affect; had a euthymic mood; did not have psychosis; and had intact insight, judgment, cognition, and memory, although she had recurrent depression in early remission and generalized anxiety. (Id.).

         Pereira saw Dr. Kawecki again in March 2012 and reported that she was less anxious and sleeping well. (A.R. 378). She reported that she had had abdominal hernias in the past and felt like they were coming back again. (Id.). She also reported that she wanted to start working out with a trainer and obtain additional schooling. (Id.). Dr. Kawecki noted she was alert, oriented, and a little anxious with a slightly reduced range of affect, but otherwise open and comfortable talking, and that her thoughts were organized. (Id.). Dr. Kawecki diagnosed generalized anxiety and chronic post-traumatic stress disorder, and prescribed sertraline and zolpidem. (Id.).[4]

         In June 2012, Pereira saw physician assistant Ashley Drapeau at the Lahey Clinic. She reported that she was doing well and exercised every other day for two hours. (A.R. 421). She also reported back pain and a skin rash resulting from post-gastric bypass excess skin, but denied abdominal pain and diarrhea. (A.R. 421-22).[5]

         In August 2012, Pereira met with dietician Kelly Barnaby, R.D. She reported that she had occasional constipation and diarrhea, and that her diarrhea was caused by ingesting milk. (A.R. 415).

         In December 2012, Pereira saw nurse-practitioner Pamela O'Brien for a three-year gastric-bypass follow-up and reported no issues. (A.R. 736). She stated she went to the gym every day for at least two hours, felt well, and had no complaints. (Id.). O'Brien reported there were no abnormal abdominal symptoms. (Id.). The same day, she reported to a dietician that she suffered diarrhea when she drank milk. (A.R. 745).

         Also in December 2012, at her last medical examination before her date last insured, Pereira saw Karl D'Silva, M.D., concerning a potential genetic predisposition for hemochromatosis. (A.R. 723). She denied pain, weakness, depression, anxiety, diarrhea, abdominal pain, depression, and anxiety. (A.R. 724).

         B. Disability Determination Explanations

         Pereira was evaluated twice for disability benefits, once at the initial level and at the reconsideration level. (A.R. 60, 69). At both evaluations, Pereira claimed disability due to depression and post-traumatic stress disorder. (A.R. 60).

         On September 22, 2011, state-agency consultant Mary Ellen Menken, Ph.D., conducted an initial evaluation. Dr. Menken opined that Pereira had concentration and persistence limitations and was moderately limited in carrying out detailed instructions and maintaining attention and concentration for long periods. (A.R. 64-65). Despite those limitations, Dr. Menken found that she retained the capacity to sustain attention, persistence, and pace adequately to perform simple tasks for two-hour periods during the course of a normal workday and workweek. (Id.). Dr. Menken opined that she had social-interaction limitations and was moderately limited in her ability to interact with the general public, accept instructions and respond appropriately to criticism from supervisors, and get along with coworkers and peers without distracting them or exhibiting behavioral extremes. (A.R. 65). Despite those social limitations, Dr. Menken found that she retained the capacity to manage basic, work-related social interactions with supervisors and coworkers adequately. (Id.). Dr. Menken also opined that she had adaptation limitations and that she was moderately limited in her ability to respond appropriately to changes in the work setting, although she retained the capacity to respond appropriately to simple, routine changes. (A.R. 66).

         In January 2012, state-agency consultant Steven Fischer, Psy.D., performed a mental residual functional capacity assessment. (A.R. 69). Dr. Fischer noted there had been no changes since the previous disability report, and that Pereira did not allege that any of her symptoms had worsened. (A.R. 72). He opined that her severe anxiety and affective disorders caused mild limitations in activities of daily life, moderate limitations in social functioning, and moderate limitations in maintaining concentration, persistence and pace, and that she had no episodes of decompensation of extended duration. (A.R. 73-76). He further opined that she could carry out simple instructions in a normal workday or workweek, could interact around work-related issues, and could adapt to routine stressors. (A.R. 75-76). Finally, he opined that she did not have the RFC to perform her previous work, and was limited to unskilled work because of her mental impairments. (A.R. 76).

         C. Pereira's Statements

         In July 2011, Pereira completed a self-evaluation form that detailed how her illnesses, injuries, or conditions limited her activities. (A.R. 218). She reported that she lived in an apartment with her family, cat, and children. (Id.). She stated that from the time she woke up until she went to bed, she took care of her children and performs household chores. (A.R. 218-19). She was able to prepare her own meals, but her cooking habits have changed since her onset date. (A.R. 220). She cleaned all day, every day, and her husband helped with a lot of the household chores. (Id.). She shopped, drove, and tried to go outside every day. (A.R. 221). She did not indicate any physical problems, such as lifting, standing, walking, or sitting, but she did state that she had problems with memory, completing tasks, concentration, and getting along with others. (A.R. 223).

         At the first hearing in November 2012, Pereira testified that she had trouble with anxiety, staying focused, and getting tasks done on time, but that medication helped sometimes. (A.R. 37, 39-40). She also stated that she had back pain that went into her leg approximately twice per month. (A.R. 42-43). She testified that she cannot lift heavy objects comfortably; that the largest amount she can lift comfortably is approximately five pounds; that sitting was uncomfortable; and that she had trouble reaching and using a keyboard. (A.R. 44-45). She had not been prescribed pain medication and testified to taking over-the-counter medications to help with her back pain as needed. (A.R. 50). She testified that she drove her son to school every day, had no hobbies, watched television during the day, and did laundry. (A.R. 37-43).

         At the second hearing in August 2015, Pereira testified that she had abdominal problems since her gastric-bypass surgery and suffered from severe diarrhea 30 to 45 minutes after eating that lasted for three hours. (A.R. 482). She testified that she drove her son to school, did laundry and other household chores, shopped for groceries, and played games on her iPad. (A.R. 468, 472-73).

         D. Disability Hearings

         Pereira filed an application for SSDI, alleging a disability beginning on May 1, 2011. (A.R. 60). After her application was denied initially, and on reconsideration, the ALJ held a hearing, at which Pereira and a vocational expert testified. (A.R. 26-59). On December 12, 2012, the ALJ issued a decision finding that Pereira was not disabled from her alleged onset date through the date of the decision. (A.R. 8-19). The Appeals Council denied her request for review. (A.R. 1-3). She then appealed to this Court. (A.R. 550).

         On October 9, 2014, this Court remanded the case to the Appeals Council. (A.R. 548). A month later, the Appeals Council remanded the case to the ALJ. (A.R. 509-12). The ALJ held a second hearing, at which Pereira and a vocational expert testified. (A.R 456-501). On September 24, 2015, the ALJ found that Pereira was not disabled within the meaning of the Social Security Act from her alleged onset date of May 1, 2011, through December 31, 2012, her date last insured for disability benefits. (A.R. 437-51). On July 12, 2016, the Appeals Council declined to assume jurisdiction, making the ALJ's September 2015 decision the Commissioner's final decision, subject to judicial review. (A.R. 427-29).

         II. L ...

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