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Mendez v. Berryhill

United States District Court, D. Massachusetts

June 18, 2018

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


          Judith Gail Dein, United States Magistrate Judge.


         The 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.[2] 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.[3] 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).

         A 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.


         Procedural History

         On or 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).

         On May 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).


         Mendez 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.

         Mendez 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, 2014.

         Mendez 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. 1231-32).

         Physical Health History After the Claimed Date of Disability

         Since 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.


         On 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. 409).

         In 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).

         On 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. 567-69).

         In June 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).

         In 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.

         Degenerative Disc Disease

         On June 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).

         In 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, [5] 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).

         In June 2015, Mendez went to Disney World in Florida for vacation for a week, [6] 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).

         In 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. (Id.).

         In 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. 1319-20).

         In 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).

         In 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. (Tr. 1369-74).

         Mental Health History After the Claimed Date of Disability

         In 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).

         On July 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).

         In 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).

         In 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. 1024).

         On 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).

         On 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).

         In May 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).

         In June 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.

         In 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.[7] (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 records.

         Other ...

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