United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON CROSS-MOTIONS REGARDING
DENIAL OF SOCIAL SECURITY BENEFITS
Gail Dein United States Magistrate Judge
plaintiff, Diana L. Topoulos (“Topoulos”), has
brought this action pursuant to sections 205(g) and
1631(c)(3) of the Social Security Act, 42 U.S.C. §§
405(g) and 1383(c)(3), in order to challenge the final
decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying her
claims for Social Security Disability Insurance
(“SSDI”) and Supplemental Security Income
(“SSI”) benefits. The matter is before the court
on the “Plain-tiff's Motion for Order Reversing the
Decision of the Commissioner” (Docket No. 16), by which
the plaintiff requests that the court reverse the decision to
deny her claims for benefits. It is also before the court on
the “Defendant's Motion to Affirm the
Commissioner's Decision” (Docket No. 17), by which
the Commissioner is seeking an order upholding her
determination that Topoulos is not disabled within the
meaning of the Social Security Act, and is therefore not
entitled to SSI or SSDI benefits. At issue is whether the
decision of the Administrative Law Judge (“ALJ”)
that Topoulos was not disabled is supported by substantial
evidence. In particular, Topoulos argues that the ALJ erred
by finding that she did not suffer from a severe mental
impairment, and that her severe mental impairment,
“when combined with her back difficul-ties, including
constant, excruciating pain that made her forgetful, unable
to concentrate, severely limited her ability to sit, stand,
walk and lift and necessitated her frequently lying down,
” precludes her from engaging in “all work on the
open labor market.” (Pl. Mem. (Docket No. 16-2) at 12).
support of her position, Topoulos argues that the ALJ did not
appropriately credit certain documents in her medical
records. However, a careful review of the record below, as
well as the ALJ's decision, compels the conclusion that
the ALJ's determination that Topoulos was not disabled is
supported by substantial evidence. Therefore, this court
recommends to the District Judge to whom this case is
assigned that the plaintiff's motion be DENIED and that
the defendant's motion be ALLOWED.
STATEMENT OF FACTS
April 8, 2013, Topoulos filed applications for SSDI and SSI,
claiming that she had been unable to work since January 1,
2009 due to radiculopathy, lumbar spondylosis, mild facet
arthropathy, PTSD, anxiety, and “severe
depression.” (Tr. 225, 227, 254). Her applications were
denied initially on July 18, 2013, and upon reconsideration
on October 22, 2013. (Tr. 161-166, 171-176). Topoulos then
requested and was granted a hearing before an ALJ, which took
place on October 9, 2014 in Boston, Massachusetts. (Tr.
42-106). The claimant, who was represented by counsel,
appeared and testified at the hearing. (Id.). The
ALJ also obtained testimony from Mr. James Sono, a vocational
expert (“VE”), who described Topoulos'
vocational background based on her past work experience and
responded to hypothetical questions that were designed to
determine whether jobs exist in the national and regional
economies for an individual with the same age, educational
background, work experience and Residual Functional Capacity
(“RFC”) as the plaintiff. (Tr. 99-104).
March 26, 2015, the ALJ issued a decision denying
Topoulos' claims for benefits. (Tr. 11-32). On May 22,
2015, Topoulos appealed the decision to the Appeals Council,
which denied review on June 15, 2016, thereby making the
ALJ's decision the final decision of the Commis-sioner
for purposes of review. (Tr. 1-3, 7). Accordingly, the
plaintiff has exhausted all of her administrative remedies
and the case is ripe for judicial review pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3).
was born on October 23, 1958, and was 55 years old at the
time of her hearing before the ALJ. (Tr. 46-47). She claimed
that she had been unable to work since January 1, 2009.
graduated from Brockton High School in 1976 and received a
secretarial certificate in 1979. (Tr. 48). From 1980-1982,
she studied English and Psychology at Bridgewater State
College but did not finish. (Id.). From 1993-1998,
Topoulos worked at a print company which she co-owned with
her sister (Tr. 53-54), but left as part of a court-ordered
buyout. (Tr. 54-55). In 1999, she worked as a cashier at
Cumberland Farms (Tr. 53-54), and then returned to the family
printing company in 2000, working there until she was laid
off for economic reasons in May 2004. (Tr. 55-58). Topoulos
then worked “under the table” at her
boyfriend's print shop, Docuprint Express, from about
2004 through at least 2006. (Tr. 59-60). Topoulos left that
job around August 2006 because she hurt her back and became
depressed. (Tr. 60). In 2008, Topoulos completed an
internship in medical coding and received a certificate. (Tr.
48-49). She then worked full time doing medical coding until
December 11, 2008, when she was fired for submitting a
timesheet for hours she could not document. (Tr. 50-52).
There is evidence in the record that in around 2013 Topoulos
went back to work at her boyfriend's shop, working at
times more than 40 hours per week. (Tr. 593, 603, 605, 607,
was married in 1987 and separated from her husband in or
around 2000. (Tr. 572, 705). After her husband moved out of
their home, he provided Topoulos with health insurance and
$400 per week. (Tr. 61, 613). Topoulos has had a long term
relationship with her boyfriend of at least 14 years, with
whom she lived for at least six years. (Tr. 59, 576).
Topoulos has three adult children, two of whom live with her.
Health History After the Claimed Date of
defendant asserts, “[t]here is no dispute that
Plaintiff has a back condition that significantly limits her
functioning. There is also no dispute that she has
intermittently sought treatment for depression, anxiety, and
PTSD. The relevant question is not whether Plaintiff was
symptom-free, but whether her symptoms were severe enough to
preclude all substantial gainful employment.” (Def.
Mem. (Docket No. 18) at 12). The ALJ concluded that they were
not, and this conclusion is supported by substantial evidence
in the record.
record shows that since January 1, 2009, Topoulos has been
treated on and off by medical professionals for mental health
concerns. Specifically, from April 27, 2011 through June 9,
2011, she sought counseling from Berry & Lobel, P.C.
(“Berry & Lobel”) (Tr. 322-331); from
November 27, 2012 through August 6, 2013, she sought
treatment with Theresa Smith, a Registered Nurse, Nurse
Practitioner, at Starr Psychiatric Center (Tr. 561-630); and
in October 2014, she sought treatment with Shannon Murray,
Psy.D. (Tr. 647-663). She was also treated throughout the
time period by her primary care physician, Joseph M.
Weinstein, M.D. (Tr. 719-954).
Topoulos' medical history, Dr. Weinstein noted that
Topoulos “has had a history of depression” and
has “improved dramatically with Effexor and
nortriptyline.” (Tr. 739). This note appears to have
been written around the time that Topoulos had “a new
job working as a coder for anesthesia.” (Id.).
Dr. Weinstein also noted at one point that Topoulos
“has been noted to have increasing symptoms of
depression”; was seen “in the emergency room at
South Shore Medical Center on April 21, 2009” in
relation to her depression; and “was referred for
outpatient psychiatric follow-up.” (Tr. 740).
April 27, 2011 through June 9, 2011, Topoulos sought
counseling from Berry & Lobel asserting major depression,
PTSD, general anxiety, and panic attacks. (Tr. 322-331). She
reporting having had her first “full-blown panic
attack” a few days prior to her first visit at Berry
& Lobel. (Tr. 328). In a mental status exam on April 27,
2011, it was noted that Topoulos was not disoriented,
distractible, hyperactive, or hostile. (Tr. 329). She had
normal speech and normal thought processes, without
hallucinations or delusions. (Id.). Though she
showed significant anxiety and moderate signs of tension and
depressed mood, her affect was not “blunted” and
she did not appear to be in “emotional
withdrawal.” (Id.). She exhibited slight
suicidal ideation. (Id.). She was diagnosed with
“major depressive disorder, moderate, ” and
“panic disorder with agoraphobia, ” and was
assigned a Global Assessment of Functioning (GAF) score of
(Tr. 328). Treatment notes from that visit also indicate that
Topoulos' activities included cleaning her house, doing
yardwork, and taking care of her six cats. (Tr. 327). On May
25, 2011, her treatment notes indicated that Topoulos
“continues to struggle with depression which results
from chronic pain, aging, loss of best friends, etc.”
(Tr. 330). On June 9, 2011, her treatment notes indicated
that Topoulos was frustrated that she “got no
help” from her family with house chores and that the
healthcare practitioner encouraged her to take a trip alone
to Germany. (Tr. 331).
next sought mental health treatment over a year later, on
November 27, 2012, with Theresa Smith (“Ms.
Smith”), a Registered Nurse, Nurse Practitioner, at
Starr Psychiatric Center (“Starr”). The record
indicates that she attended near-weekly therapy sessions with
Ms. Smith through August 6, 2013. (Tr. 561-630). She sought
treatment with Ms. Smith initially for thoughts of
suicidality in the context of her home being foreclosed upon
and her assertion that she was unable to work due to chronic
back pain. (Tr. 566-67, 572-73). Upon initial presentation,
Ms. Smith diagnosed Topoulos with “PTSD” and
“Mood Disorder NOS” and assigned a GAF score of
42. (Tr. 572). Topoulos was prescribed Lamictal for mood
stability and weekly therapy to improve coping skills, and
was weaned off of Effexor. (Tr. 573).
the course of the next several months of treatment,
Topoulos' mental condition appears to have steadily
improved to the point where she went back to work at her
boyfriend's bindery. For example, on December 11, 2012,
though she was tearful as she “review[ed] all the
losses over her life, ” she reported no suicidal
thoughts over the previous week. (Tr. 576). Ms. Smith
prescribed Prazosin. (Id.). On December 18, 2012,
her “mood appear[ed] improved.” (Tr. 578). On
January 8, 2013, she reported “I seem better” and
reported less depression and anxiety and fewer racing
thoughts. (Tr. 582). Ms. Smith noted Topoulos'
“improving mood” and “improving
anxiety” and that she was “more stable.”
(Id.). On January 15, 2013, Topoulos had “much
more mood stability” and was “feeling
euthymic.” (Tr. 584). She appeared “pleasant,
” “well groomed” and “casually
dressed, ” and she “engage[d] easily.” (Tr.
584). Her thought process was “linear, logical,
intact.” (Id.). On February 12, 2013, Topoulos
was prescribed Lithium. (Tr. 591).
February 19, 2013, Topoulos reported that she felt
overwhelmed working at the bindery more than 40 hours per
week, which had greatly increased her back pain. (Tr. 593).
Ms. Smith observed that the fatigue and pain resulted in
decreased mood, affect, insight and judgment, and poor
self-care, but that Topoulos' speech was normal and her
thought process was linear and intact. (Tr. 593). Ms. Smith
diagnosed Topoulos with attention deficit disorder without
hyperactivity. (Id.). On March 5, 2013, Topoulos
reported that she self-terminated her lithium prescription
and reported some mood instability but overall improvement.
(Tr. 596). On March 26, 2013, Ms. Smith reported that
“euthymia predominates.” (Tr. 602). On April 2,
2013, she reported that Ms. Topoulos “has been working
many hours . . . on her feet” and has “refused to
consider decreasing [her] hours.” (Tr. 603). Topoulos
reported that her biggest problem at that point was pain.
(Id.). On April 5, 2013, Ms. Smith prescribed
Buspar. (Tr. 604). On April 9, 2013, Topoulos reported that
she “took off” that day and the day before and
that she planned to continue to only work part time. (Tr.
605). On April 16, 2013, Ms. Smith noted that Topoulos
“continued to restrict her work schedule in order to
tolerate pain” and that Topoulos continued to have an
“improved stable mood.” (Tr. 607).
April 27, 2013, Topoulos reported a great response to Buspar,
improved mood and decreased anxiety. (Tr. 609). She had some
underlying sadness but was managing it well, and her thought
process was intact, logical, and future oriented, with
increased insight and intact judgment. (Id.). She
planned to return to church with her daughter and to attend
Alanon. (Id.). On April 30, 2013, Ms. Smith noted
that Topoulos' mood was stable and euthymic, and her
perceptions were greatly improved, which Ms. Smith attributed
to medication, cognitive restructuring and improved coping
skills. (Tr. 610).
14, 2013, at a session with Ms. Smith, Topoulos was tearful
as she described an incident at work where her boyfriend
“lost it” but she regained control as the session
progressed. (Tr. 613). On June 4, 2013, Topoulos was
“happy to report” that she had taken up the hobby
of jewelry making and brought in some jewelry to show Ms.
Smith. (Tr. 614). On June 22, 2013, Topoulos reported she had
a bad week because her boyfriend had another angry outburst
directed to her at work. (Tr. 617). She was well-groomed,
dressed in a sundress with new sandals, and had a bright
affect and stable mood. (Id.). On June 25, 2013, she
reported that her relationship with her boyfriend continued
to deteriorate, her mood was subdued, and she was tearful at
times. (Tr. 619). However, Ms. Smith noted that Topoulos was
responding with “appropriate grieving” and
observed that Topoulos was attractively dressed in a
sundress, had new highlights in her hair, and reported she
was “not working” that day because she had
“plans to catch up on personal business.”
23, 2013, Topoulos was tearful and discouraged because her
disability application was denied. (Tr. 624). Ms. Smith
called Dr. Weinstein who reportedly stated “I believe
[Topoulos] ¶ 100% physically and emotionally
disabled.” (Id.). On August 6, 2013, Ms. Smith
noted that while Topoulos was experiencing increased stress
from the social security denial, conflict with her boyfriend
and ex-husband, her mood was stabilized. Ms. Smith made no
changes to Topoulos' psychopharmacological regimen. (Tr.
626). It does not appear from the record evidence that
Topoulos returned to Ms. Smith after August 8, 2013.
next time the record indicates that Topoulos visited a mental
health professional was over a year later on October 3, 2014,
when she met with Shannon Murray, Psy.D. (“Dr.
Murray”) for psychotherapy, who diagnosed her with
“major depressive disorder, recurrent, ”
“post traumatic stress disorder” and assessed a
current GAF score of 45. (Tr. 649-59). At this point,
Topoulos had stopped all of her medications except for
Adderall and Methadone for pain. (Tr. 655). Dr. Murray
observed no issues with Topoulos' appearance other than
she was very thin, and observed no issues with posture, body
movements, affect, attitude, perception, or judgment. (Tr.
657). Her speech was slightly loud, but otherwise normal.
(Id.). Her cognition was normal other than slight
distractibility, and her thought content and form were normal
other than moderate suicidal ideation. (Id.).
Topoulos reported that she was unable to work consistently
because of pain. (Tr. 658). The record ends with treatment
notes from Dr. Murray from October 21, 2014, wherein Dr.
Murray noted that Topoulos had a depressed mood. (Tr. 663).
as part of her social security disability application,
Topoulos filed an undated, unsigned “Function
Report” in which she reported that she lived in her
house with her family, was able to care for herself with pain
medication, cared for her five cats, prepared dinner for
herself and her adult children for one to one and a half
hours a day, did basic household chores, was able to drive
and go out alone, and shopped in stores for food and the like
twice a week for an hour each time. (Tr. 273-78).
Agency Consultants' Opinions
connection with Topoulos' application for social security
disability benefits, two state agency psychological
consultants, Kathryn Collins-Wooley, Ph.D. and Michael
Maliszewski, Ph.D., reviewed Topoulos' medical records
and issued corresponding opinions on the severity of
Topoulos' mental health impairments. In a report dated
June 21, 2013, Dr. Collins-Wooley opined that Topoulos had
“mild” restriction in the activities of daily
living, “mild” difficulties in maintaining social
functioning, “mild” difficulties in maintaining
concentration, persistence or pace, and no repeated episodes
of decompensation of extended duration. (Tr. 114, 126).
Additionally, Dr. Collins-Wooley explained that while the
claimant had anxiety and depression in the context of
“a trauma history and chronic back pain[, ]”
“it is clear that she has continued to work fulltime,
with her ...