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Mercogliano v. Berryhill

United States District Court, D. Massachusetts

September 13, 2018



          Leo T. Sorokin United States District Judge.

         Christina Marie Mercogliano seeks reversal and remand of a decision by the Acting Commissioner of the Social Security Administration (“the Commissioner”) denying her Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). Doc. No. 17. The Commissioner seeks an order affirming her decision. Doc. No. 24. For the reasons that follow, Mercogliano's Motion for Judgment on the Pleadings to Reverse and/or Remand the Decision of the Commissioner is DENIED, and the Commissioner's Motion to Affirm the Commissioner's Decision is ALLOWED.

         I. BACKGROUND

         A. Procedural History

         On October 9, 2012, Mercogliano applied for SSI and DIB, alleging an onset of disability of January 1, 2010. A.R. at 334-50.[1] Her applications were denied initially on January 7, 2013 and upon reconsideration on May 3, 2013. Id. at 245-50, 260-65. On June 11, 2013, Mercogliano requested a hearing before an administrative law judge (“ALJ”). Id. at 266-67. A hearing was held on February 19, 2014. Id. at 157-80. By decision on March 24, 2014, the ALJ found Mercogliano was not disabled. Id. at 223-38.

         Thereafter, Mercogliano requested review of the ALJ's decision. Id. at 301-302. The Appeals Council granted Mercogliano's request for review, and in an order dated August 13, 2015 remanded the case for a new hearing and decision.[2] Id. at 239-44. A hearing was held before a different ALJ on December 10, 2015; the hearing included testimony by a vocational expert (“VE”). Id. at 107-52. That same day Mercogliano amended her onset date to May 20, 2010. Id. at 366. The ALJ issued a written decision dated February 2, 2016 finding that Mercogliano was not disabled. Id. at 65-93. Mercogliano filed a timely request for review, which the Appeals Council denied on May 12, 2017, rendering the ALJ's 2016 determination the final decision of the Commissioner. Id. at 1-6. Mercogliano filed this action appealing the Commissioner's decision on July 12, 2017. Doc. No. 1.

         B. Mercogliano's Physical Impairments

         In her applications, Mercogliano claimed she suffered from a severe physical impairment, reflex sympathetic dystrophy (“RSD”), in her right foot. A.R. at 406. The record contains the following relevant evidence regarding her physical impairments:

• On May 20, 2010, Mercogliano presented at the Whidden Memorial Hospital emergency department complaining of pain in her great right toe, after a carpet cutting machine rolled over her foot while she was working at Home Depot. Id. at 914. Mercogliano was diagnosed with a right foot contusion and discharged in a stable condition. Id. at 915.
• On May 25, 2010, Mercogliano presented to Dr. Parra Tomkins at Ball Square Family Medicine, complaining of pain in her right foot and difficulty walking. Id. at 653. Dr. Tomkins noted a limp, but no obvious swelling or bruising. Id. at 653. She prescribed a walking boot, ice, and oxycodone, and referred Mercogliano to a podiatrist. Id.
• On June 1, 2010, Mercogliano went to Dr. Joseph Murano, a podiatrist, complaining of numbness and tingling along the side of her right foot, and shooting pain along the second toe of her right foot. Id. at 651. Dr. Murano found mild tenderness and noted two possible mild nerve compressions in her right foot. Id. at 652.
• On August 25, 2010, Mercogliano visited Dr. Cho-Park at Brigham and Women's Hospital for a neurological exam. Id. at 639. Mercogliano complained of a tingling sensation and pain around the right foot. Id. at 640. Dr. Cho-Park found that the relevant area did not fit within a nerve distribution; the exam was otherwise unremarkable. Id. Dr. Cho-Park noted that Mercogliano may have had the beginnings of RSD, and recommended Neurontin, physical therapy, and referral to a pain specialist. Id. at 641. Dr. Cho-Park also encouraged Mercogliano to work in a role that would not stress her foot. Id.
• On August 27, 2010, Mercogliano returned to Dr. Tomkins complaining of persistent pain in her right foot, swelling in her right foot when she was up on her feet, and an inability to perform her prior work duties. Id. at 637. In her appointment notes, Dr. Tomkins indicated that Mercogliano could walk for exercise. Id. Dr. Tomkins found the right great toe was tender to touch, with no obvious swelling or bruising, and prescribed Gabapentin. Id. at 638.
• On October 5, 2010, Mercogliano visited a pain medicine specialist, Dr. Sasa Periskic. Id. at 632. Mercogliano complained of pain that radiated from her right foot, up into her lower right back, and occasional numbness in her toes. Id. at 632. Dr. Periskic noted Mercogliano had tried nonsteroidal anti-inflammatory drugs, muscle relaxants, and physical therapy without significant improvement, but that she had not tried long-acting narcotics or steroid injections. Id. Dr. Periskic found coldness, limited range of motion, pain, tingling sensations, and excessive sensitivity to touch in Mercogliano's right foot, as well as a limp and an inability to walk on heels and toes. Id. at 633. Dr. Periskic diagnosed right lumbar radiculopathy (compression or inflammation of a spinal nerve); RSD; chronic pain; and low back pain. Id. at 634. Dr. Periskic prescribed physical therapy, Neurontin, and an antidepressant, and suggested that Mercogliano may benefit from MRI and injection therapy. Id.
• On November, 2, 2010, Mercogliano returned to Dr. Tomkins reporting that she had not returned to work due to persistent pain, which increased after walking. Id. at 629. Physical examination found tenderness along the bones of the great right toe, no obvious swelling or bruising, pain with moving toes, and that this area was slightly cooler to the touch than the rest of the foot. Id. at 630. Dr. Tomkins diagnosed possible RSD, making the same findings she had noted in August 2010. Id. at 630-31.
• On January 7, 2011, Mercogliano saw Dr. Tomkins and reported extreme pain anytime her right foot was banged, bumped, or touched, with Gabapentin providing minimal relief. Id. at 623. Dr. Tomkins's findings and diagnosis remained unchanged. Id.
• On February 11, 2011, Mercogliano saw neurologist Dr. Vladan P. Milosavljevic and reported severe pain and numbness in her right foot. Id. at 469. Dr. Milosavljevic observed limited movements in her right foot, decreased pain sensation, and a limp. Id. at 470. He diagnosed right foot contusion and mild RSD. Id. at 471. He further opined that she was capable of doing work while sitting, that she should not stand for more than fifteen minutes per hour, that she should not lift more than ten pounds, and that she should not climb, squat, or kneel. Id. Dr. Milosavljevic believed Mercogliano's partial disability was temporary, that her condition could improve, and he recommended a bone scan. Id.
• On January 26, 2012, Mercogliano visited orthopedic surgeon Dr. Mark Slovenkai, [3]who found a limp and mild discoloration of the right foot. Id. at 828-9. He noted Mercogliano had difficulty bending her toes, decreased sensation, and limited range of ankle-motion. Id. at 829. Dr. Slovenkai diagnosed right foot contusion with temporary loss of motor or sensory function due to the blockage of nerve conduction, mild RSD, and mild gait abnormalities. Id. Dr. Slovenkai opined that Mercogliano could return to light-duty work with permanent restrictions limiting standing to fifteen minutes per hour; and excluding squatting, kneeling, climbing, and lifting more than twenty-five pounds. Id. at 829-30. Dr. Slovenkai believed Mercogliano had reached maximal medical improvement, with no need for ongoing treatment except for continued Neurontin management and occasional pain clinic follow up. Id. at 830.
• On May 8, 2012, Mercogliano saw Dr. Tomkins and complained that she was experiencing increased foot and leg pain as a result of more time on her feet “taking care of two other children for a family member.” Id. at 880. Dr. Tomkins increased her Gabapentin. Id. at 881.
• On November 6, 2013, [4] Mercogliano told Dr. Tomkins that her foot pain persisted. Id. at 844. Her foot was cool and sensitive to touch, with two toes curling in and tender. Id. at 846. Gabapentin was continued. Id.
• That same day, Dr. Tomkins filled out a Multiple Impairment Questionnaire in which she diagnosed right foot contusion with RSD. Id. at 892. Dr. Tomkins noted that Mercogliano's prognosis was poor, as her pain had increased over time despite medications, and she had failed physical therapy and electrotherapy. Id. Mercogliano's primary symptoms were pain (rated moderate to moderately-severe), difficulty with activities, decreased sensation, and fatigue from medication. Id. at 893-94. Dr. Tomkins opined that in an eight-hour workday, Mercogliano could sit for up to one hour, stand or walk for up to one hour, and lift or carry up to ten pounds, with significant limitations on repetitive lifting. Id.
• On October 31, 2014, Mercogliano returned to Dr. Milosavljevic and reported no significant improvement since 2011. Id. at 1000. Dr. Milosavljevic's diagnoses and opinion were unchanged. Id. at 1000-02. Dr. Milosavljevic reiterated his belief that Mercogliano had not reached maximal medical improvement, suggested that she may benefit from Cymbalta, and recommended injections or a bone scan. Id. at 1002.
• On December 2, 2015, Dr. Tomkins filled out a Disability Impairment Questionnaire which mirrored her November 6, 2013 Questionnaire. Id. at 994-98. Dr. Tomkins opined that Mercogliano could not work, and that she would miss more than three days of work per month if she did. Id. at 997-98.

         C. Mercogliano's Mental Impairments

         Mercogliano's application also cited severe mental impairments, including major depressive disorder, obsessive compulsive disorder (“OCD”), attention deficit hyperactivity disorder (“ADHD”), post-traumatic stress disorder (“PTSD”), and anxiety. Id. at 378. The record contains the following relevant evidence regarding these impairments:

• On June 16, 2011, Mercogliano began mental health treatment at Elliot Community Human Services (“ECHS”). Id. at 749. Mercogliano reported racing thoughts, anxiety, depression, OCD, avoiding people, irritability, difficulty concentrating, and issues staying asleep. Id. Mercogliano also described past abuse by her mother, hospitalization for a suicide attempt at the age of thirteen, rape when she was eighteen or nineteen, daily heroin use until roughly four years earlier, and two months attending a methadone clinic to come off pain medications. Id. at 749-50. A mental status exam documented cooperative behavior; no reported delusional, suicidal, or other harmful thoughts; and normal appearance, speech, perception, thought content, intellectual functioning, and orientation. Id. at 751. However, Mercogliano's body movement was agitated, her mood reflected a lack of feelings, her affect was blunted, and her thought process was tangential. Id. She was diagnosed with opioid dependence, OCD, and major depressive disorder. Id. at 752. Her Global Assessment of Functioning (“GAF”) score was 41.[5] Id.
• On August 6, 2011, Mercogliano saw a registered mental health nurse, Margaret Callahan, at ECHS for a medication consultation. Id. at 758. Ms. Callahan noted that Mercogliano had an anxious mood, but was pleasant, easily engaged, neatly groomed, and showed no abnormal motor movements. Id. Ms. Callahan suggested that Mercogliano start on Prozac, Vistaril, and Luvox, each of which treat anxiety, depression, and/or OCD. Id.
• On February 9, 2012, Mercogliano reported to Ms. Callahan that her medications were having only a small effect on her OCD symptoms, stating that she needed something to help her focus. Id. at 760. Ms. Callahan noted that Mercogliano had a blunted affect and suggested that she continue her medications and start Adderall. Id.
• After skipping an appointment in March, Mercogliano saw Ms. Callahan on May 1, 2012, and reported increased anxiety after a cousin was shot and paralyzed. Id. at 762. She was caring for two additional children from her extended family but denied problems with her medications. Id. The next month, Mercogliano told Ms. Callahan she was “feeling well.” Id. at 763.
• Social worker Jessica Rickard authored a September 24, 2012 letter to the Massachusetts Rehabilitation Commission, stating that Mercogliano had been diagnosed with major depressive disorder, OCD, PTSD, and ADHD. Id. at 479.
• On November 15, 2012, [6] Mercogliano saw registered nurse practitioner Richard Carey at ECHS. She reported poor sleep, a history of agoraphobia that increased with the birth of her son, and compulsively cleaning her whole house every day. Id. at 770. Her Luvox dose was increased. Id.
• On December 13, 2012, Mercogliano saw Mr. Carey and reported that the increased dosage of Luvox was helping her. Mr. Carey noted broad affect, euthymic mood, no delusions or paranoia, and organized thoughts. Id.
• On December 27, 2012, Mercogliano was evaluated by an agency consultant, Dr. Michael Kahn. Id. at 773. Dr. Kahn found Mercogliano to be “pleasant and friendly, polite and respectful, without evidence of psychotic thinking.” Id. at 774. However, he noted that she described “up and down” moods and that her affect was “somewhat overwhelmed and almost tearful.” Id. Dr. Kahn diagnosed anxiety, with significant elements of complex PTSD and OCD. Id. at 775. Dr. Kahn opined that Mercogliano's medications “could be more aggressive, ” that it would be “most difficult” for her to return to her past work at that time, but that with more aggressive treatment she “might be able to leave the house and try working again.” Id. at 775.
• On January 5, 2013, Dr. John Burke, a state agency psychologist, reviewed Mercogliano's records and found her to have moderate restriction in activities of daily living, mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Id. at 187. Dr. Burke concluded that Mercogliano could perform simple tasks, and that she was not disabled. Id. at 190.
• On January 10, 2013, Mercogliano reported to Mr. Carey that her OCD was the “worst that it had been, ” though her ADD was well controlled. Id. at 815. Mr. Carey increased her Luvox to three times per day. Id. at 815.
• On February 14, 2013, Mercogliano told Mr. Carey that her status “could be better, ” citing increased family responsibilities, but she reported being better able to cope, that her OCD symptoms had improved significantly, and that Adderall was helpful but wore off too quickly. Id. at 817. The following month, Mercogliano reported that taking Adderall twice a day was working much better. Id. at 819.
• On April 10, 2013, Dr. Robert Lasky, a state agency psychologist, reviewed Mercogliano's records and echoed Dr. Burke's January 2013 findings. Id. at 211-20.
• On July 12, 2013, Mercogliano visited Mr. Carey reporting increased anxiety, which Mr. Carey found was a response to acute stressors. Id. at 1035. No. change was made to her medications. Id. at 1036.
• On that same day, Mr. Carey filled out a Psychiatric/Psychological Impairment Questionnaire in which he diagnosed Mercogliano with Major Depressive Disorder, OCD, ADHD, and assigned a GAF score of 53. Id. at 928-35. Mr. Carey's clinical findings included mood disturbance, social withdrawal, compulsions, intrusive recollections of a traumatic experience, generalized persistent anxiety, and irritability. Id. at 929. Mr. Carey reported that Mercogliano was markedly limited in her ability to understand, remember, and carry out detailed instructions. Id. at 931. He noted various other moderate and mild limitations, indicated that Mercogliano would be capable of tolerating only low work stress, and opined that she would likely miss work more than three times a month. Id. at 931-35.[7]
• On November 8, 2013, Mercogliano returned to Mr. Carey and reported continued stress, but denied any concerns or adverse effects from her medication. Id. at 1033.
• On January 2, 2014, Mr. Carey filled out a Psychiatric/Psychological Impairment Questionnaire in which he again diagnosed Mercogliano with Major Depressive Disorder, OCD, ADHD, and assigned a GAF score of 55. Id. at 984. His clinical findings included poor memory, sleep disturbance, mood disturbance, emotional lability, difficulty concentrating, social withdrawal, decreased energy, compulsions, and irritability. Id. at 985. Mr. Carey found that Mercogliano was markedly limited in her ability to: 1) remember locations and work-like procedures; 2) understand, remember, and carry out detailed instructions; 3) work with or near others without being distracted by them; 4) complete a normal workweek without interruptions from her symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; and 5) interact appropriately ...

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