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Kelley v. Berryhill

United States District Court, D. Massachusetts

September 10, 2018

CINDY L. KELLEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiff Cindy L. Kelley (“Kelley”) filed applications for Social Security Disability Income benefits (“SSDI”) and supplemental security income (“SSI”) with the Social Security Administration (“SSA”) on September 28, 2011. R. 189, 352-55.[1] Pursuant to the procedures set forth in the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), Kelley brings this action for judicial review of the final decision of Defendant Nancy A. Berryhill, [2] Acting Commissioner of the SSA (“the Commissioner”), issued by an Administrative Law Judge (“ALJ”), denying Kelley's applications for SSDI and SSI benefits. R. 35-66. Kelley has moved for judgment on the pleadings. D. 11. Thereafter, the Commissioner moved to affirm the ALJ's decision. D. 19. For the reasons discussed below, the Court DENIES Kelley's motion for judgment on the pleadings, D. 11, and GRANTS the Commissioner's motion to affirm, D. 19.

         II. Factual Background

         Kelley previously worked as a fast food worker, a fast food manager, a deli cutter/slicer, a cashier and a presser. R. 174-75, 417. Kelley quit her full-time job as a manager at Wendy's in 2007. R. 79, 158. She did not work at all in 2008, but from June 2009 to June 2010, she had a part-time job as a deli slicer. R. 78, 159. As alleged in the complaint, Kelley has not worked since September 20, 2011 due to depression and post-traumatic stress disorder. D. 1 ¶ 4.

         III. Procedural History

         On September 28, 2011, Kelley filed applications for SSDI benefits, asserting that she had been disabled since June 28, 2010. R. 189, 352-55. After an initial review, Kelley's application was denied on January 20, 2012, R. 227, and denied upon reconsideration on June 25, 2012, id. Thereafter, on July 27, 2012, Kelley filed a request for a hearing before an ALJ. R. 258-59. On May 7, 2013, a hearing was held before ALJ Sean Teehan. R. 142-82. At the hearing, Kelley and Christopher K. Wood, a vocational expert (“VE”), testified. Id. At this hearing, Kelley, through her counsel, John Patitucci, amended her alleged onset date to September 20, 2011. R. 145-46. In a post-hearing brief dated May 20, 2013, however, Kelley amended her alleged onset date again to September 1, 2011. R. 39. On May 31, 2013, the ALJ determined that Kelley was not disabled and denied her claims. R. 224-43. Kelley requested review of the ALJ's decision on July 2, 2013. R. 297. After reviewing the administrative record, the Appeals Council granted Kelley's request for review, and on August 25, 2014, vacated the decision of the ALJ and remanded the case for further proceedings. R. 244-48. Kelley subsequently filed applications for SSDI and SSI on January 15, 2015 and February 26, 2015, respectively, which were consolidated with the present claim. R. 38. Kelley also filed a claim for disabled widow's benefits (“DWB”) in April 2015. R. 106.

         In its remand order, the Appeals Council directed the ALJ to consider the effects of Kelley's obesity on her ability to function; further evaluate Kelley's mental impairment in accordance with 20 C.F.R. §§ 404.1520a, 416.920a; give further consideration to Kelley's maximum residual functional capacity (“RFC”); if required, re-assess whether Kelley has the capacity to return to any past relevant work, or to make the vocational adjustment to other work that exists in the national economy; and obtain supplemental evidence from the VE to clarify the effects of the assessed limitations on Kelley. R. 246. The ALJ held a second hearing on September 17, 2015 covering all the claims for benefits, wherein Kelley and the VE both testified again. R. 67-101. On November 4, 2015, the ALJ found that Kelley was not disabled within the meaning of the Social Security Act at any time between September 1, 2011, her amended alleged onset date, through the date of this decision. R. 35-66. Kelley requested review of the ALJ's decision on November 18, 2015. R. 33-34. The Appeals Council denied review on August 18, 2016, thereby making the ALJ's decision the final decision of the Commissioner. R. 2-6.

         IV. Discussion

         A. Legal Standards

         1. Entitlement to SSDI and SSI

         To be entitled to SSDI and SSI benefits, a claimant must show that he or she has a qualified “disability.” 42 U.S.C. § 423(a)(1)(E). A “disability” under the Social Security Act includes an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.” Id. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. § 404.1505(a). To qualify as a disabling impairment, the physical or mental impairment must be sufficiently severe such that it renders the claimant unable to engage in any previous work or other “substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a).

         The Commissioner follows a five-step sequential analysis to determine whether a claimant is disabled and thus whether the application for Social Security benefits should be approved. 20 C.F.R. § 416.920(a); see Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). The determination may be concluded at any step of the analysis. 20 C.F.R. § 416.920(a)(4). First, if the claimant is engaged in substantial gainful work activity, the application is denied. Id § 416.920(a)(4)(i). Second, if the claimant does not have, or has not had, within the relevant time period, a severe medically determinable impairment or combination of impairments, the application is denied. Id § 416.920(a)(4)(ii). Third, if the impairment meets the conditions of one of the listed impairments in the Social Security regulations, the application is approved. Id § 416.920(a)(4)(iii). Fourth, where the impairment does not meet the conditions of one of the listed impairments, the Commissioner determines the claimant's RFC. Id § 416.920(a)(4)(iv). If the claimant's RFC is such that he can still perform his past relevant work, the application is denied. Id Fifth, if the claimant, given his RFC, education, work experience and age, is unable to do any other work within the national economy, he is disabled and the application is approved. Id. § 416.920(a)(4)(v).

         2. Standard of Review

         This Court may affirm, modify or reverse a decision of the Commissioner. See 42 U.S.C. § 405(g). Such judicial review, however, “is limited to determining whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (citing Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per curiam)). The ALJ's findings of fact are conclusive and must be upheld by the reviewing court when supported by “substantial evidence, ” “even if the record arguably could justify a different conclusion.” Whitzell v. Astrue, 792 F.Supp.2d 143, 148 (D. Mass. 2011) (quoting Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987)) (internal quotation mark omitted). Substantial evidence is “more than a mere scintilla, ” Richardson v. Perales, 402 U.S. 389, 401 (1971), and exists “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the Commissioner's] conclusion, ” Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The Court need not conclude that the ALJ's decision was based upon substantial evidence when reached through “ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen, 172 F.3d at 35. If the ALJ made a legal or factual error, this Court may reverse or remand such decision with instructions to consider new material evidence or apply the correct legal standard. See 42 U.S.C. § 405(g); Nguyen, 172 F.3d at 36; Manso-Pizarro, 76 F.3d at 19.

         B. Before the ALJ

         1. Medical History Presented to the ALJ

         The ALJ examined extensive evidence regarding Kelley's medical history, including treatment records, assessments and diagnoses. R. 189-994.

         a. Sarah Miles, MSW, Helenita Hamer, M.D. and Mamta Modhiwala, M.D.

         On September 20, 2011, Kelley began treatment with Sarah Miles, a social worker. R. 493-503. Kelley stated that she felt depressed, easily irritated and tired all the time, but was “self-sufficient.” R. 497-99. On the same day, Miles filled out an initial psychiatric disorder questionnaire, wherein she described that Kelley reported “feeling tired all of the time, having difficulties sleeping . . . [and] having images of her father abusing her and her mother.” R. 512. Miles also noted that Kelley presented “as restless, talking fast, and impatient, ” and reported having “difficulties in her interpersonal relationships.” Id. Following this initial visit, Miles diagnosed Kelley with depressive disorder and “rule[d] out” post-traumatic stress disorder.[3] R. 503.

         At a follow-up meeting on September 27, 2011, Kelley indicated that she and her spouse were “struggling financially” and that she was looking into applying for SSDI benefits, but realized that she was required to meet with a psychiatrist first. R. 490. At a subsequent meeting on October 4, 2011, Kelley reported that she was unable to work due to having “significant irritability with co-workers” and experiencing panic attacks. R. 489. On October 25, 2011, Kelley and Miles discussed Kelley's struggles with not knowing whether she will be found eligible for SSDI. R. 530. Nonetheless, Miles encouraged Kelley to continue working on her coping strategies. Id. During a follow-up on November 1, 2011, Kelley reported that she was continuing to feel “really blahh” and that she had “nothing to look forward to when she wakes up in the morning.” R. 528. However, at the same visit, Kelley also stated that she thought she was “less depressed when she was working, ” but “also felt like she couldn't keep her spouse happy when she was working due to [her] spouse wanting her around all the time.” Id.

         On a November 30, 2011 visit to Miles, Kelley reported that she understood that her spouse's mental health was affecting her. R. 525. She told Miles that her “spouse mostly spends time doing nothing in the bedroom but doesn't want [her] to go out.” Id. Kelley also stated that when she was employed as a manager, she “enjoyed” her work even though it was stressful. Id. She believed that once she knew whether she was eligible for SSDI, she would have a “clear plan of what she needs to do.” Id. However, on December 16, 2011, Kelley reported to Miles that she had done a lot of thinking about how she wanted to lose weight, and that she was “interested in talking with a personal trainer to determine how much it would cost.” R. 523. Kelley believed that she “would feel a lot better if she exercised and lost weight” because then she would feel good and be more motivated to leave her apartment. Id.

         Helenita Hamer, M.D., a psychiatrist, evaluated Kelley on January 3, 2012. R. 519-22. A mental status examination of Kelley showed that while her appearance was “within normal limits, ” she was avoiding eye contact, was overweight, her posture was rigid and tense, her body movements were restless, her behavior was preoccupied and agitated and her speech was rapid. R. 520. Although Hamer found Kelley to be irritable, depressed and sad, she also noted that Kelley's thoughts were normal and logical; she denied having any hallucinations, delusions, or suicidal thoughts; her intellectual functioning appeared normal; and her memory, insight, and judgment were all within normal limits. R. 520-21. Following this visit, Hamer diagnosed Kelley with depressive disorder, post-traumatic stress disorder and “rule out” mood disorder and prescribed Kelley Abilify. R. 521-22. In a follow-up visit with Miles on January 9, 2012, Kelley reported that her spouse was a “major trigger of her feelings of stress, anxiety and irritability, ” given that he spent all his time cooped up in their bedroom, but “jump[ed] all over [Kelley], ” whenever she tried to leave the apartment. R. 567. Kelley further stated that she had “made connections between how her spouse [was] treating her and how her step-father [had] treated her mother, ” and that she could not “continue to live like this.” Id. Kelley assured Miles that she would “focus more on herself and do things that she enjoys doing, like going for walks, whether or not her spouse approve[d].” Id. In her follow-up visit with Miles on January 23, 2012, Kelley reported that she had gone out with her spouse for coffee and donuts, and that by “not bottling up her feelings of frustration toward her spouse, her depression and anxiety [had] decreased.” R. 566. On February 10, 2012, Kelley reported that her mood was improving and that her medication was working. R. 564. She still had images of childhood abuse, but “this [was] not bothering her as much” and she was less irritable. Id.

         Around this time, Kelley heard from the SSA that her initial application for benefits had been denied and she requested for a reconsideration. R. 249-51. On February 14, 2012, Miles was “interested to see if [Kelley] may feel up to working again due to improved mood.” R. 563. Kelley requested Miles' help in completing paperwork related to her appeal for SSDI benefits. Id. On February 16, 2012, Miles and Hamer wrote a letter stating that Kelley will likely have “difficulties working for at least a year, ” due to her symptoms. R. 540. On February 27, 2012, Kelley reported that her mood was still improving. R. 561. She said that she had received a letter indicating that she would be receiving money from company shares acquired through a previous job. Id. Her anxiety had decreased and she had started crocheting. Id.

         At the March 6, 2012 session, Kelley's mental status examination was entirely normal, she denied having any depression, appeared to be “groomed, cooperative [and] coherent” and reported that she did not feel as “edgy as before.” R. 558. On March 26, 2012, Miles noted that Kelley's mood was generally stable and that she expressed an intention to exercise regularly. R. 556. On May 9, 2012, Miles and Hamer completed a Psychiatric/Psychological Impairment Questionnaire, where they noted that although Kelley reported responding well to treatment and medications, she stated that “she feels this would not be the case in a work situation.” R. 597. Miles and Hamer also assigned Kelley a Global Assessment of Functioning (“GAF”) score of 55.[4] Id. Miles and Hamer noted that Kelley's primary symptoms at this time were irritability, mood swings, feeling like a “heavy load is on her” and intrusive thoughts and images regarding past traumas. R. 599. They opined that Kelley was markedly limited in only a few areas: ability to work in coordination with or proximity to others without being distracted by them; the ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; and the ability to respond appropriately to changes in the work setting. R. 600-02.

         On May 16, 2012, Miles and Hamer completed another psychiatric disorder questionnaire, in which they noted that Kelley had reported “decreased depression and anxiety on current medication, ” and assessed that her current GAF score was 60.[5] R. 607. On May 22, 2012, however, Kelley appeared to be in a “very anxious mood” due to her inability to afford her co-pay for her medication. R. 617. Hamer gave her enough samples of Abilify to last a month. R. 618. On June 13, 2012, Hamer noted that Kelley had “no complaints, ” but was concerned about a family situation involving her uncle and sister-in-law. R. 619. In the same progress note, Hamer stated that Kelley had an “upset” mood and “over productive speech, ” but was engaged and coherent. Id.

         Mamta Modhiwala, M.D., a psychiatrist, evaluated Kelley on July 11, 2012. R. 621. Kelley said that she felt “overwhelmed” with her efforts to lose weight and family conflict. Id. She had not been attending therapy regularly, but wanted to start going twice a month to learn coping skills. Id. Modhiwala noted that Kelley appeared “cooperative and friendly, ” maintained “good eye contact, ” her affect was “reactive [and] appropriate, ” and her thought process was “linear.” Id. Modhiwala diagnosed Kelley with depressive disorder, “rule out” mood disorder and post-traumatic stress disorder and assessed a GAF score of 50.[6] R. 622. In a follow-up visit to Miles on July 24, 2012, Kelley reported that she was “back to feeling nervous, ” and felt like she “did not care.” R. 624. Miles noted that it was possible that Kelley was reporting significantly worse symptoms “due to being denied SSDI [benefits] and wanting a stronger case.” Id. Kelley did not know why her medications were no longer working, but stated that she still enjoyed going to the beach and caring for her grandson. Id. On August 6, 2012, Kelley returned to see Modhiwala and reported “improved mood since last session but continued difficulties sleeping.” R. 626. On August 8, 2012, Modhiwala noted that Kelley had said that she was in a “good” mood and was cooperative, friendly and maintained good eye contact during their meeting. R. 627. Kelley saw Modhiwala monthly in September 2012, R. 630, October 2012, R. 633 and November 2012, R. 636, and reported at each of these sessions that she was doing well with her medication and that her mood was “good.”

         In January 2013, Miles reached out to Kelley, who had not returned for counseling in several months. R. 640. Kelley came to see Miles on February 4, 2013 and reported “doing well and being in a good mood.” R. 680. Although she presented as “upbeat, smiling and laughing, ” Kelley claimed that she felt “unable to work currently due to mood swings and difficulties interacting with other people.” Id. Miles “completed a long packet from [Kelley's] disability lawyers with [Kelley's] input.” Id. At this meeting, Kelley also said that she thoroughly enjoyed knitting, and that she had recently got her son a video game for Christmas, which she had also been using to exercise. Id. On February 25, 2013, Kelley saw Modhiwala and requested her to increase her medication as she was ...


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