United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Sorokin United States District Judge.
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.
October 9, 2012, Mercogliano applied for SSI and DIB,
alleging an onset of disability of January 1, 2010. A.R. at
334-50. 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.
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. 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.
Mercogliano's Physical Impairments
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
• 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.
• 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, 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,  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.
• 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.
Mercogliano's Mental Impairments
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
• 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. 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
• On November 15, 2012,  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.
• 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
• 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.
• 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 ...