United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO
REVERSE AND DEFENDANT'S MOTION TO AFFIRM THE DECISION OF
DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE
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.
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.
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.
Pereira was 39 years old in 2012, the date that she was last
insured. (A.R. 615, 616). 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).
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.).
November 2009, Pereira underwent gastric-bypass surgery.
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Pereira was withdrawn, nervous, and anxious; depressed with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.
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).
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.
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.
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.
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.).
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
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.).
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).
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.
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).
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).
Disability Determination Explanations
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).
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.
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.
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).
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).
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).
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).
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).