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Topoulos v. Berryhill

United States District Court, D. Massachusetts

February 26, 2018

DIANA TOPOULOS, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION ON CROSS-MOTIONS REGARDING DENIAL OF SOCIAL SECURITY BENEFITS

          Judith Gail Dein United States Magistrate Judge

         I. INTRODUCTION

         The 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).

         In 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.

         II. STATEMENT OF FACTS[2]

         Procedural History

         On 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).

         On 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).

         Background

         Topoulos 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.

         Topoulos 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, 617).

         Topoulos 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. (Tr. 76).

         Mental Health History After the Claimed Date of Disability

         As the 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.

         The 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).

         In 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).

         From 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 50.[3] (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).

         Topoulos 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).

         Over 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).[4] 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).

         On 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).

         On 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).

         On May 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.” (Id.).

         On July 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.

         The 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).

         Additionally, 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).

         State Agency Consultants' Opinions

         In 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 ...


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