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Ares v. Berryhill

United States District Court, D. Massachusetts

November 15, 2017

DAWN ARES, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge

         Pending before this court are Plaintiff Dawn Ares' Motion for Order Reversing the Decision of the Commissioner of the Social Security [#16], seeking judicial review of a final decision denying her application for social security disability insurance benefits (“SSDI”) and supplemental security income benefits (“SSI”), and Defendant, Acting Commissioner of the Social Security Administration Nancy Berryhill's Motion to Affirm the Decision of the Commissioner [#18]. For the following reasons, Plaintiffs motion is ALLOWED in part and DENIED in part, Defendant's motion is DENIED, and the matter is REMANDED for further proceedings consistent with this order.

         I. Background

         A. Procedural and Medical History Through the ALJ's Denial of Plaintiff's First Set of Claims

         Plaintiffs documented history of back pain began in at least the early 1990s, when she underwent two surgeries for a ruptured disc in her back. A.R. 504 [#13-7]. In September 2005, Plaintiff was seen by Ronald Birkenfeld, M.D., of Associates in Neurosurgery, “complaining of recurrent right leg pain and low back pain.” Id. In November 2005, Plaintiff underwent nerve root decompression surgery. Id. at 501-05. Records indicate that Plaintiff had worked during this period but stopped working sometime in 2008. A.R. 384 [#13-5]; A.R. 412-13 [#13-6].

         In 2009, Plaintiff filed applications for SSDI and SSI, alleging a disability onset date of February 28, 2008. A.R. 132 [#13-3]. Her application was denied both initially and upon reconsideration. Id. After a hearing on April 8, 2011, the ALJ issued a written opinion on April 26, 2011, finding that Plaintiff was not disabled, and affirming the denials of both SSDI and SSI.[2] Id. at 132-42.

         B. Procedural and Medical History From April 2011 to the ALJ's Initial Denial of Plaintiffs Second Set of Claims

         On May 18, 2011, Plaintiff was seen by Rizwan Mufti, M.D., a psychiatrist at Boston Health Care, regarding her mental health. A.R. 537 [#13-7]. Dr. Mufti noted that Plaintiff was glum, downcast, and stated that Plaintiff conveyed to Dr. Mufti her unchanged anxiety, worsening depression, and increased sadness. Id. Based on those observations, Dr. Mufti diagnosed Plaintiff with “Bipolar 2” and an anxiety disorder. Id. Plaintiff was seen four more times by Dr. Mufti in 2011, who noted bipolar, anxiety, and depression symptoms at all of those visits. Id. at 529, 531, 533, 535. Plaintiff returned to Dr. Mufti on six occasions in 2012, and each time Dr. Mufti noted continued depression and anxiety with varying levels of intensity and frequency. Id. at 527, 589, 591, 593, 595, 597.

         Also in 2011 and 2012, Plaintiff visited a therapist, Debra Sirota, MSW, LICSW, for examinations related to her depression and anxiety conditions. A.R. 617-18 [#13-7]. Plaintiff met with Ms. Sirota five times in 2011, see id, and twenty times in 2012, Id. at 619-23. Ms. Sirota noted depression, irritability, anxiety, racing thoughts, mood swings and disorders, social isolation, decreased concentration, and weight gain due to limited activity. Id. at 617-23.

         In addition to appointments with Dr. Mufti and Ms. Sirota, Plaintiff began to see Rania Husseini, M.D., at Brigham and Women's Hospital in 2012, regarding Plaintiffs physical health. Dr. Husseini, Plaintiffs primary care physician, examined Plaintiff three times in 2012. A.R. 578-79, 584, 606 [#13-7]. Dr. Husseini's notes from those examinations detail lower back pain and trouble sitting and standing, while also mentioning anxiety and bipolar symptoms, as well as a severe headache. Id.

         Plaintiff returned to Dr. Mufti twice in early 2013 for mental examinations, first on January 3, 2013, at which time Dr. Mufti noted no change in symptoms. A.R. 599 [#13-7]. At the second visit on February 14, 2013, Dr. Mufti noted that Plaintiff appeared to be in remission and was not displaying any symptoms, though Dr. Mufti maintained Plaintiffs diagnosis. Id. at 601. Plaintiff also continued to visit Ms. Sirota in 2013, and was seen by her six times between January 2013 and July 2013. Id. at 623-25, 632-33. Ms. Sirota noted continuing anxiety, depression, irritability, frustration, poor concentration, a racing mind, distractions, bipolar disorder, chronic pain, and sleep disturbance. Id.

         Meanwhile, on November 30, 2011, and November 17, 2011, respectively, Plaintiff filed applications for SSDI and SSI, alleging an onset date of February 28, 2008.[3] A.R. 155-56 [#13- 3]. Plaintiff's applications were initially denied in March 2012, A.R. 242-47 [#13-4], and upon reconsideration in July 2012, id. at 250-55. On August 23, 2012, Plaintiff requested a hearing before an ALJ. Id. at 256-68.

         On July 11, 2013, Plaintiff received a hearing regarding her SSDI and SSI applications. A.R. 214 [#13-3]. The ALJ considered, among other things, Plaintiff's medical records dating from 2005 through June 28, 2013. Id. at 236-37. The ALJ found that Plaintiff was not disabled. Id. at 214-32.

         C. Procedural and Medical History From July 2013 through Plaintiff's Appeal of the Final Denial of Her Second Set of Claims

         On August 19, 2013, after not working since 2008, Plaintiff began working part time in the laundry room of a retirement home. A.R. 390-91 [#13-5].

         In late 2013, Plaintiff made her first three visits to psychiatrist Alice Freeman, M.D. A.R. 645-47, 660-63 [#13-8]. During all three visits, Dr. Freeman noted bipolar symptoms, anxiety, depression, angry outbursts, irritability, and decreased concentration of varying severity. Id. On one occasion in late 2013, Plaintiff also saw Dr. Husseini, who noted back issues that prevented Plaintiff from shoveling. Id. at 691.

         Plaintiff met with Ms. Sirota eleven times in 2014 for examination. A.R. 634-39 [#13-7]. After each session, Ms. Sirota noted continued anxiety, racing thoughts, irritability, chronic pain, decreased concentration, problems with personal relationships and leaving the house, and a prominent mood disorder. Id.

         Plaintiff also continued to visit Brigham and Women's Hospital throughout 2014. Id. at 641-44; A.R. 686, 717-18 [#13-8]. During that time, both Dr. Husseini and a physician's assistant excused Plaintiff from a collective five weeks of work due to a diminished range of motion in Plaintiff's back; reduced strength; and discomfort while sitting, standing, or walking. A.R. 641-44 [#13-7]; A.R. 686, 717-18 [#13-8]. Plaintiff also visited Dr. Freeman multiple times in 2014. Dr. Freeman noted bipolar symptoms, anxiety, lack of concentration, mood swings, a racing mind, depression, and irritability. A.R. 652-59 [#13-8].

         On August 20, 2014, the Appeals Council reviewed the ALJ's 2013 disability determination, vacated the ALJ's decision, and remanded the case to the ALJ for a new hearing. A.R. 238-41 [#13-3]. The Appeals Council instructed the ALJ to: (1) address the impact of res judicata in light of Plaintiff's prior applications for disability benefits, (2) consider the treating source opinions and explain the weight given those opinions, (3) further evaluate subjective complaints of pain, and (4) further consider Plaintiff's maximum Residual Functioning Capacity. Id.

         On September 3, 2014, Plaintiff stopped working, again citing her back pain as the reason she could no longer work. A.R. 389 [#13-5].

         Alison Weisheipl, M.D., of Brigham & Women's Hospital performed an MRI on September 18, 2014, to examine Plaintiff's lower back. A.R. 702 [#13-8]. Dr. Weisheipl's findings detailed mild, moderate, and marked changes in Plaintiff's back, and noted degenerative changes in the impression section of that report. Id. Following the MRI, Plaintiff had two follow-up visits, one with Dr. Weisheipl and one with Dr. Husseini. Id. at 711-14, 717-18. Both Dr. Weisheipl and Dr. Husseini noted continued chronic pain, that injection treatments were not working, and mentioned ...


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