United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS
REGARDING DENIAL OF SOCIAL SECURITY BENEFITS
Gail Dein, United States Magistrate Judge.
plaintiff, Lynette Mendez (“Mendez”), has brought
this action, pro se, 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 plaintiff's “Motion To Reverse Decision For
SSDI” (Docket No. 19), 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 For Order Affirming The
Commissioner's Decision” (Docket No. 20), by which
the Commissioner is seeking an order upholding her
determination that Mendez 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 Mendez was
not disabled is supported by substantial
evidence. Additionally, Mendez filed with this
court, two sets of documents for consideration, the vast
majority of which were created after the date of the
ALJ's decision and thus were not considered by the ALJ.
(See Dockets No. 22 & 24). The Commissioner and
this court interpret these submissions as a request for a
remand pursuant to sentence six of 42 U.S.C. § 405(g).
review of the record below, as well as the ALJ's
decision, compels the conclusion that the ALJ's
determination that Mendez was not disabled is supported by
substantial evidence. Furthermore, the additional records
submitted on appeal to this court do not warrant remand under
sentence six of 42 U.S.C. § 405(g). Therefore, the
plaintiff's motion to reverse is DENIED and the
defendant's motion to affirm is ALLOWED.
STATEMENT OF FACTS
about April 18, 2014, Mendez filed applications for SSDI and
SSI benefits, claiming that she had been unable to work since
December 5, 2013 due to a stroke, depression, high blood
pressure, and severe pain in her back, right leg, left arm
and shoulder. (Tr. 284; 300). Her applications were denied
initially on August 1, 2014 (Tr. 116-43; 189-94) and upon
reconsideration on December 22, 2014. (Tr. 144-87; 197-202).
Mendez then requested and was granted a hearing before an
ALJ, which took place on March 24, 2016 in Boston,
Massachusetts. (Tr. 65-93). Mendez was represented by
counsel, appeared, and testified at the hearing.
(Id.). The ALJ also obtained testimony from Dr. Amy
Vercillo, a vocational expert (“VE”), who
described Mendez's 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. 84-92).
19, 2016, the ALJ issued a decision denying Mendez's
claims for benefits. (Tr. 45-54). On June 15, 2016, Mendez
appealed the decision to the Appeals Council. (Tr. 38-41) The
Appeals Council denied her claim for review on September 2,
2016 (Tr. 15-20), again on September 23, 2016 after receiving
additional documentation (Tr. 10-14), and finally on November
17, 2016 after receiving further documentation (Tr. 1-6),
thereby making the ALJ's decision the final decision of
the Commissioner for purposes of review. 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 February 10, 1972, and was 44 years old at the
time of her hearing before the ALJ. (Tr. 71-72). She claims
that she has been unable to work since suffering a stroke on
December 5, 2013.
received her GED in 1999 (Tr. 1232), and in the past has
worked in full-time positions as an administrative assistant
for a produce company, a store manager in retail, a
receptionist with a temp agency, a maintenance supervisor for
a property management company, and most recently, as a
receptionist for the Executive Office of Public Safety and
Security for the Commonwealth of Massachusetts
(“EOPSS”). (Tr. 72-73; 319). She stopped working
at EOPSS in February 2011 and has not worked since. (Tr.
319). According to the ALJ, Mendez met the special earnings
requirements of the Social Security Act, for SSDI purposes,
through June 30, 2014. Thus, to be entitled to SSDI benefits,
Mendez must prove that she was disabled on or before June 30,
has three daughters, who at the time of the administrative
hearing were 27, 22, and 13 years old, respectively. (Tr.
74). Mendez's youngest daughter lives at home with her
(id.) and, as of February 2016, was receiving SSI
disability benefits with Mendez as the representative payee.
(Tr. 1224). Mendez is separated from her husband and does not
receive child support payments. (Tr. 1232). She receives food
stamps, welfare benefits, and Section-8 benefits. (Tr.
Health History After the Claimed Date of
suffering a stroke on December 5, 2013, Mendez sought
treatment for a variety of medical conditions related to her
stroke and other physical ailments. On appeal, she claims
that her back pain, left arm pain, neurologic issues related
to her stroke, headaches, and the side effects of her
medications are disabling and prevent her from working.
December 5, 2013, Mendez was admitted to the emergency room
with an occluded carotid artery and cerebral infarction. (Tr.
528-29; 563). She was treated with tissue plasminogen
activator therapy (Tr. 528-29; 535; 563) and also underwent
thrombectomy and prosthetic patch angioplasty, right carotid
artery. (Tr. 411). At her postoperative appointment on
December 20, 2013, Mendez was evaluated by Dr. Magruder
Donaldson who concluded that Mendez had made a “full
recovery after major stroke, right carotid surgery”
noted Mendez had “[m]ild headaches at times, ”
“some incisional neuropathy, ” a “[w]ell
healed right neck” and “no neuro[logical]
findings” in her arms or legs, although there was
“some sensory change adjacent to incision.” (Tr.
February 2014, Mendez was evaluated by Dr. Donaldson after
complaining of neck pain, shortness of breath, and irregular
heartbeat. (Tr. 378). Dr. Donaldson noted a normal carotid
artery, normal heartbeat, slight tenderness over the inferior
end of the wound, and assessed a possible episode of atrial
fibrillation with an overlay of severe anxiety. (Tr. 378). He
also noted normal gait and no persistent motor dysfunction in
Mendez's extremities. (Tr. 372).
March 5, 2014, Mendez had a duplex ultrasound taken, which
indicated patent right carotid endarterectomy with normal
morphology and hemodynamics. (Tr. 413). Dr. Donaldson
summarized that this test result was normal. (Tr. 406). On
March 25, 2014, a duplex ultrasound was performed which
showed normal arterial flow to the left arm. (Tr. 515). On
May 12, 2014, Mendez complained of left upper extremity pain
to her hematologist, Dr. Rasmia Khalid, who noted that Mendez
was undergoing physical therapy. (Tr. 419). Later that month
she complained of left upper extremity pain and hand numbness
to her cardiologist, Dr. Eric Davidson, who noted that the
duplex ultrasound taken in March 2014 indicated normal
arterial flow. Dr. Davidson prescribed Coumadin. (Tr.
of 2014, Mendez was evaluated by a neurologist, Dr. Joseph
D'Alton, who noted that “[o]ver time, [Mendez] made
significant improvement” from her stroke, that
Mendez's neurologic exam was normal “except reduced
dexterity in the left hand” and pain and limited
movement in the left shoulder. (Tr. 654). Dr. D'Alton
referred Mendez to an orthopedic surgeon for an opinion on
Mendez's shoulder. (Id.). As of July 2014, Dr.
Khalid noted only mild dysfunction in the upper left
extremity. (Tr. 748). In August 2014, Dr. D'Alton noted
that Mendez had not seen the orthopedic surgeon regarding her
shoulder, and that she still had some limitation of left
shoulder movement but that her shoulder was improved since
June. (Tr. 753).
August 2014, Mendez underwent an orthopedic evaluation by Dr.
Serena J. Young and reported no improvement in upper left
extremity pain with Neurontin, gabapentin and physical
therapy. (Tr. 754). Mendez underwent a left shoulder MRI in
October 2014, which showed mild degenerative changes and
hypertrophy of the AC joint. (Tr. 805). Dr. Young noted that
there was no shoulder structural cause for Mendez's pain,
although she believed there could be some tendonitis.
(Id.). Dr. Young referred her to pain management to
discuss further treatment options, and suggested there could
be a nerve-related component to Mendez's pain due to
stroke. (Id.). After October 2015, the record
contains no further evidence of sustained care for
stroke-related or cardiac-related issues.
30, 2014, Mendez complained of right thigh numbness and
worsening sciatica. (Tr. 589). On examination, she had normal
alignment, no visible or palpable defects, normal range of
motion, 5/5 muscle strength, normal muscle tone, no abnormal
movements, no atrophy, stable joints, normal gait, and good
balance. (Id.). An MRI from July 2014 indicated
stable L5-S1 left paracentral disc protrusion touching the
traversing left S1 nerve root, no significant central canal
or foraminal stenosis, and stable grade I retrolisthesis of
L5 on S1. (Tr. 650-51). Dr. D'Alton summarized that the
MRI showed “minor degenerative changes at several
levels” but was “unchanged” since an MRI
from 2013. (Tr. 753).
January 2015, Mendez was evaluated by Dr. Omar El Abd, a
spine surgeon, reporting ongoing left arm pain, pain in her
lower back, and numbness in the lateral right calf. (Tr.
1017). On examination, she had no abnormal muscle wasting, no
abnormal deformities, normal range of motion bilaterally in
her upper and lower extremities, normal gait, intact
sensation, and 5/5 muscle testing throughout except 4/5
manual muscle testing in the left upper extremity. (Tr.
1017-18). She had positive Spurling compression and root
tension on the left along with positive pelvic rock and
sustained hip flexion, and tenderness overlying the lumbar
paraspinal area. (Tr. 1019). Dr. El Abd diagnosed left
cervical radicular pain, left hemiparesis,  and lumbar and
cervical disc displacement. (Tr. 1019). He also recommended
she undergo an MRI of her cervical spine, which she did in
March 2015. (Tr. 1019). The March 2015 MRI indicated
protrusion at ¶ 3-4 pressing on the thecal sac, moderate
right foraminal narrowing, and small protrusions from C4
through C7 unchanged since May 2012. (Tr. 1303). Dr. El Abd
recommended lumbar steroid injection and possibly
radiofrequency ablation and that Mendez continue to take
tizanidine. (Tr. 1303-04).
2015, Mendez went to Disney World in Florida for vacation for
a week,  and in July 2015 reported walking for two
to five miles daily for exercise in preparation for bariatric
surgery in September. (Tr. 1181; 1483; 1485).
August 2015, Mendez sought emergency care for low back pain
after sweeping the floor and running out of her muscle
relaxant. On exam, there were no noted deficits. (Tr.
1212-15). She was given a Lidoderm patch, Tylenol and
short-term prescriptions for Valium and Tramadol.
November 2015, Mendez saw Dr. Renee Goetzler, one of her
primary care physicians, who noted that since the bariatric
surgery in September, Mendez had lost over 30 pounds, was off
many of her former medications, felt “great, ”
was walking for exercise at least 30 minutes per day and,
although her back was still “uncomfortable, ” it
was “better than before.” (Tr. 1319). Mendez
reported that her left arm was still painful and that made it
hard to do Zumba. (Id.). Dr. Goetzler noted that
Mendez's left arm had 3/5 strength, and referred Mendez
to pain management and physical/occupational therapy. (Tr.
January 2016, Mendez saw Dr. Tomoya Sakai, a pain specialist,
who on examination concluded Mendez had a normal gait, no
tenderness in her cervical spine or trapezius muscles, full
range of motion in cervical spine flexion, extension,
rotation, and lateral bending, limited strength in her left
upper extremity due to residual paresis and spasticity, and
intact neurological functioning. (Tr. 1298-99). Dr. Sakai
diagnosed spasticity of the left upper extremity, with left
upper extremity pain and weakness, due to Mendez's stroke
and less likely due to cervical radiculopathy, and prescribed
Baclofen. (Tr. 1299).
February 2016, Dr. Goetzler filled out a physical RFC form in
which she opined that Mendez could only sit for 20 minutes
and stand for five minutes total at one time; could sit for
about four hours; could stand/walk for about two hours; could
occasionally lift and carry less than 10 pounds; had
significant limitations in doing repetitive reaching,
handling or fingering; was able to stoop or crouch 0% of the
time in an eight hour day; and that her symptoms were severe
enough to interfere often with attention and concentration.
Health History After the Claimed Date of
April 2014, Mendez's primary care physician, Dr. Jae Lee,
diagnosed her with severe depression, though he noted that
she had “normal judgment/insight, ” a
“normal affect, ” and was oriented to time,
place, and person. (Tr. 480-81). Dr. Lee prescribed
Venlafaxine. (Tr. 482). In May 2014, Dr. Lee switched
Mendez's prescription to Wellbutrin and referred her for
a psychiatric evaluation for depression and anxiety. (Tr.
593-95). In June 2014, Dr. Lee noted that Mendez's
depression was better but that she continued to have anxiety
related to her health issues and that she reported that she
was “always worried about being forgetful.” (Tr.
589). Dr. Lee advised Mendez to follow up with a
psychiatrist. (Tr. 590).
11, 2014, Mendez underwent a mental health diagnostic intake
at Spectrum Health Systems (“Spectrum”), where
she underwent therapy and outpatient mental health treatment
from July 2014 through June 2015. Upon mental status
examination at intake, Mendez was cooperative, well groomed,
had an appropriate affect, with a worried and anxious mood,
had limited insight, with an adequate fund of general
knowledge and normal memory but impaired recall. (Tr. 1053).
Additionally, she was “fully oriented, ” had a
“logical/coherent” thought process, and denied
delusions, hallucinations, and suicidal or homicidal
ideations. (Id.). A mental status exam conducted in
August 2014 showed that Mendez was depressed but the exam was
otherwise normal. (Tr. 1037). Mendez reported at the time to
the practitioner that she had memory problems.
(Id.). In October 2014, Mendez reported an increase
in anxiety resulting from conflict between her daughters, and
between herself and her neighbors. (Tr. 1030-31). In November
2014, Mendez had increased anxiety due to continued conflict
with her neighbors. (Tr. 1027).
December 2014, as part of her appeal of the initial denial of
her application for SSI and SSDI benefits, Mendez underwent a
consultative examination with Steven Hentoff, Ph.D., who
observed that Mendez had a depressed mood with tearfulness,
seemed to be in significant discomfort, and had cognitive
limitations. (Tr. 808-12). For example, he observed that
Mendez was unable to count backwards from 20 to 1. (Tr. 810).
Dr. Hentoff also observed that Mendez was greatly challenged
by the demands of standardized testing and that overall
results suggested significant impairment in memory function
for both auditory and visual information. (Tr. 811). He
diagnosed Mendez with amnestic disorder due to recent stroke,
depressive disorder, and rule out mood disorder due to
stroke. (Id.). Furthermore, while he did not provide
an opinion on disability itself, leaving that opinion for the
Agency, he recommended that due to her mental status, Mendez
should be assigned a representative payee if the Agency were
to determine that she was disabled. (Tr. 812).
January 2015, treatment notes from Spectrum noted that Mendez
appeared to be managing her anxiety symptoms more effectively
and that, even though she was tearful, she was able to
regulate her emotions well and her mood was stable. (Tr.
March 19, 2015, Mendez saw Margaret Burley, RN, CNS, PC,
PMHCNS-BC, and reported to Ms. Burley that she had social
anxiety, was crying a lot and was “so depressed,
” got panic attacks, had memory problems, and feared
driving. (Tr. 1191). Ms. Burley continued Mendez on
Wellbutrin. (Tr. 1192).
March 26, 2015, Ms. Burley filled out a “Mental
Impairment Questionnaire” regarding Mendez, co-signed
by Dr. Mitchell Wangh. (Tr. 1157-63). In the questionnaire,
Ms. Burley indicated that she had seen Mendez four times
since August 2014 and that she had diagnosed Mendez with
major depression and PTSD. (Tr. 1157). Ms. Burley opined that
Mendez was moderately limited in activities of daily living,
was markedly limited in maintaining social functioning and
concentration, persistence and pace, and had continual
episodes of deterioration or decompensation. (Tr. 1162). Ms.
Burley further opined that Mendez was “seriously
limited” in her ability to ask simple questions or
request assistance, carry out very short and simple
instructions, make simple work-related decisions, respond
appropriately to changes in a routine work setting, and be
aware of normal hazards and take appropriate precautions, and
had no useful ability to function in any of 10 other mental
abilities needed to do unskilled work. (Tr. 1160-61). She
also opined that Mendez was seriously limited in the mental
abilities “needed to do particular types of jobs,
” including the ability to adhere to basic standards of
neatness and cleanliness, interact appropriately with the
general public, travel in an unfamiliar place, use public
transportation, and maintain socially appropriate behavior.
(Tr. 1161). Finally, she opined that Mendez would be absent
from work more than three times per month and was presently
unable to work outside of the home. (Tr. 1159).
2015, Mendez switched from Wellbutrin to Topiramate due to
headaches (Tr. 1185-86), and in late May she went through a
medical evaluation in advance of her bariatric surgery. (Tr.
1357-59). At the evaluation, she denied anxiety, depression,
and stress, and the physician noted that her mental status
was “grossly normal.” (Tr. 1357-58).
2015, Ms. Burley's treatment notes indicate that Mendez
was “less depressed” and “happy and
excited” that she was going on vacation with her
daughter to Florida for a week. (Tr. 1181). Ms. Burley also
noted that the Topiramate “helps with mood and headache
prevention.” (Id.). The last time Mendez
appears to have been treated at Spectrum was in June 2015 and
the administrative record shows no further treatment by
mental health specialists.
February 2016, Mendez complained of depression, panic
attacks, and anxiety to her primary care physician, Dr.
Goetzler, explaining that she had not seen her therapist in
several months. (Tr. 1306). She also reported increased
anxiety and depression due to the death of her grandmother,
and that she was flying with her mother to the
funeral. (Id.). Dr. Goetzler provided a
short-term prescription for Valium to help her with her trip
for the funeral. (Tr. 1307). The administrative record does
not include any further mental health related treatment