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Bui v. Berryhill

United States District Court, D. Massachusetts

September 28, 2018

LE THI BUI, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.




         Pursuant to the Social Security Act, 42 U.S.C. § 405(g), Le Thi Bui ("Bui") brings this action and moves to reverse or remand the Acting Commissioner of Social Security's (the "Commissioner") decision denying her supplemental security income under the Social Security Act. The Commissioner cross-moves pursuant to the same Act, seeking to affirm the decision.

         Bui asserts that the hearing officer's decision should be reversed or remanded because it is legally erroneous and not based upon substantial evidence. Mem. Law Supp. PL's Mot. Reverse Or Remand Decision Acting Commissioner ("PL's Mem.") 1, ECF No. 16. The Commissioner asserts that the decision is supported by substantial evidence and should be affirmed. Mem. Law Supp. Def.'s Mot. Affirm Commissioner's Decision ("Def.'s Mem.") 1, ECF No. 21. For the reasons explained below, the Court remands the case for further proceedings and denies the motion to affirm.

         A. Procedural History

         On July 24, 2014, Bui applied for disability insurance benefits and supplemental security income. Administrative Record ("Admin. R.")[1] 22, 180, ECF No. 12. The Social Security Administration initially denied Bui's request for both benefits. Id. at 22. Bui only appealed the supplemental security income denial. Id. On December 17, 2015, a hearing was held upon Bui's request. Id. at 22, 47, 116, 140. Both Bui and a vocational expert testified at the hearing. Id. at 47.

         On March 28, 2016, the hearing officer denied Bui's request for supplemental security benefits. Id. at 19, 41. The hearing officer found that Bui's vertigo, depression, anxiety, and post-traumatic stress disorder ("PTSD") were severe. Id. at 24. Nevertheless, the hearing officer also found that her impairments did not equal the severity of the impairments listed in Appendix 1 of the Social Security Regulations, 20 C.F.R. Part 404, Subpart P. Id. at 26. Finally, he found that Bui could "perform a full range of work," with the exception of "climbing ropes, ladders, and scaffolds; and frequently stooping, kneeling, crouching, and crawling." Id. at 28. The hearing officer further recommended that Bui should also avoid "concentrated exposure to vibration" and "exposure to unprotected heights." Id. He concluded that Bui could perform simple tasks and could maintain her concentration for two-hour periods in an eight-hour work day. Id. On April 19, 2017, the Social Security Administration Appeals Council denied review of the decision. Id. at 1.

         On June 16, 2017, Bui filed an action in this Court to reverse or remand the Commissioner's decision. Compl. 1, ECF No. 1. Bui also requested attorneys' fees and additional and alternative equitable relief. Id. at 5. On September 29, 2017, the Commissioner filed an answer, ECF No. 11, and the Administrative Record. On November 9, 2017, Bui filed a motion to reverse or remand the Commissioner's decision. PL's Mem. 1. The Commissioner subsequently filed a cross-motion seeking to affirm the hearing officer's decision on January 18, 2018. Def.'s Mem. 1. Bui replied to the Commissioner's motion on January 30, 2018. Reply Mem. Opp. Def.'s Mot. Affirm Commissioner's Decision ("Reply Mem.") 1, ECF No. 24. On May 8, 2018, this Court heard oral argument and took the matter under advisement. Electronic Clerk's Notes, ECF No. 30.

         B. Factual Background

         Bui is a 50-year-old woman who was born in Vietnam on June 4, 1968. Admin. R. 205; Reply Mem. 1. Bui completed the fifth grade in Vietnam and does not speak or understand English. Admin. R. 53, 211. In 1990, Bui attempted to flee from Vietnam to Thailand. Id. at 281. While traveling through Cambodia, Khmer Rouge soldiers sexually assaulted and tortured Bui. Id.; Reply Mem. 1. In 1998, Bui moved to the United States and eventually became a naturalized citizen. Admin. R. 166, 180, 626. From 1999 to 2000, she worked as a paper assembler and binder in an office. Id. at 211. In 2012, she worked for a couple of months as a house cleaner for a maid company. Id. Finally, from September 2013 until August 2014, she worked part-time as a cleaner in a nail salon. Id. In a function report filed in 2014, Bui describes other short-term jobs she had from 2004 to 2014. Id. at 225-32. Bui has not engaged in substantial gainful activity since leaving her job in 2000 as a paper assembler and binder. Reply Mem. 3 n.9. In 2014, she stopped working completely. Admin R. 24.

         According to Bui and her doctors, she suffers from various mental and physical conditions. Id. at 281, 764. Her mental conditions include PTSD, depression, and anxiety. Id. at 281, 627. Physically she suffers from chronic headaches, vertigo, back and knee pain, shoulder pain, Hepatitis B, and a hand tremor. Id. at 627, 764.

         Bui filed two function reports in 2014 in which she described her daily activities. Id. at 217-24, 248-55. Bui also gave a similar description of her daily activities in her testimony at the hearing. Id. at 63-65. Bui lives with and takes care of her daughter. Id. at 217-19; 248-50. Bui takes her daughter to school every day using public transportation and does a variety of household chores. Id. She goes shopping and visits the community park on a regular basis. Id. at 220-21; 251-52, 252. She sometimes watches movies. Id. at 217, 248.

         1. Physical Impairments

         Tuong Van Nguyen, M.D. ("Dr. Nguyen") has been Bui's primary psychiatrist. See, e.g., id. at 627. Dr. Nguyen diagnosed Bui with severe PTSD, due to her repeated abuse by Khmer Rouge soldiers. Id. at 637. She also suffers from anxiety and depression. Id. at 628. Dr. Nguyen indicated that Bui's PTSD started in 1999, though he first diagnosed her in 2003. Id. at 630. Dr. Nguyen has continuously diagnosed Bui with a Global Assessment of Functioning ("GAF") score of 60, which indicates moderate symptoms. See, e.g., id. at 578, 581, 638, 690. According to the record, Dr. Nguyen started treating her with medications (fluoxetine and klonopin) in 2010. Id. at 750. On July 15, 2014, Bui told physician Julita Mir ("Dr. Mir") that she had stopped taking those medications "due to fatigue" and was feeling better. Id. at 570.

         Moreover, Bui alleges that she has a hand tremor which, according to Dr. Nguyen, would keep her from doing "fine manipulation." Id. at 1087. Steve Vogel, N.P. ("Vogel"), Madhusudan Thakur, M.D. ("Dr. Thakur"), Jeffrey Jampel, Ph.D. ("Dr. Jampel"), other medical professionals who examined Bui, and Chau Nguyen ("Ms. Nguyen"), a social worker, observed the tremor in their examination records. Id. at 618, 728, 867, 959, 971, 973, 1023. Additionally, in 2014, neurologist Maria Stefanidous, M.D. ("Dr. Stefanidous"), observed the tremor and prescribed a beta-blocker to help with the headaches and the tremor. Id. at 973.

         Bui also alleges that she suffers from chronic back, neck, and shoulder pain. Id. at 703, 750. She has spinal stenosis at the C5-C6 spinal segment. Id. at 750. A 2008 Social Security decision denying Bui's request for supplemental security income, mentions two MRIs. Id. at 82. The first MRI showed a congenitally narrowed spinal canal at the C4-C5 segment. Id. A second MRI showed mild tendinopathy. Id. Bui had an epidural in 2010 and was prescribed Cyclobenzaprine in 2015 for her neck and back pain. Id. at 725, 771. Dr. Nguyen documented Bui's neck pain in her visits. See, e.g., id. at 689, 750, 843, 867, 903. In 2015, Nsa Henshaw, M.D., a provider at Dorchester House, observed a tenderness of the left cervical paraspinal muscles and left trapezius. Id. at 705.

         Bui also has a history of chronic knee pain. Id. at 474, 886, 1024. In 2011, Vogel stated that Bui had "long standing chronic pains of both knees that do not allow her to bend, squat or climb stairs frequently." Id. at 866. Dr. Mir prescribed tramadol for her knee pain. Id. at 886. In 2014, Julie Crosson, M.D., diagnosed Bui with bilateral leg pain and left knee pain. Id. at 474. In 2015, Dr. Thakur, on behalf of the Disability Evaluation Services, stated that her difficulties in walking and climbing were functional limitations. Id. at 1024. In 2015, Hai Dang Truong, N.P. ("Truong"), stated that Bui "gets dizzy w[ith] bending [and] twisting" and requires breaks from work every two hours. Id. at 748-49.

         Bui also asserts that she has chronic headaches and vertigo. Id. at 290, 370, 903. In 2012, Bui complained of dizziness for the first time to Dr. Nguyen. Id. at 903. Vogel suggested that her positive Dix-Hallpike test could indicate vertigo. Id. at 370. Richard Grentzenberg, M.D. ("Dr. Grentzenberg"), an otolaryngologist who evaluated Bui, noted that she felt dizzy during the Dix-Hallpike test and felt unsteady during the Romberg test. Id. at 290. Also, an audiology evaluation showed a "mild to moderate" sensorineural hearing loss in Bui's left ear. Id. at 301. After an MRI in 2014, Dr. Grentzenberg concluded that Bui's dizziness was "more a feeling of fatigue and faint feeling." Id. at 961. In 2015, Bui started physical therapy to help with her dizziness. Id. at 1072-76. Alison Hinsberger, Bui's physical therapist, described Bui experiencing blurriness and double vision during exams. Id.

         2. Healthcare Professionals' Opinions

         Dr. Nguyen's opinion

         Dr. Nguyen stated that he has been Bui's psychiatrist since September 2003.[2] Id. at 1082. Dr. Nguyen concluded that Bui could not deal with normal work stress and had difficulty remembering detailed instructions. Id. at 1085, 1087. He indicated that she would have marked limitations dealing with skilled and semi-skilled work and that she would get agitated when working under pressure. Id. at 1086-87. Dr. Nguyen also indicated that he anticipated Bui's conditions or treatment would lead to her absence from work about three times per month. Id. at 1084. Dr. Nguyen indicated that Bui would additionally have "difficulties in maintaining concentration, persistence or pace," and that Bui would need too many breaks and would have a marked limitation in concentrating for two straight hours. Id. at 1085-87. He also stated that the need to make quick decisions or dealing with customers could increase the level of her impairments. Id. at 1087. Dr. Nguyen concluded that Bui's psychiatric impairments would prevent her from working an eight-hour work day. Id. at 1085.

         Dr. Jampel's opinion

         State Disability Determination Services sent Bui to a psychiatric consult with Dr. Jampel. Id. at 618. He noted a "mild tremor" in both hands. Id. He concluded that Bui had "no evidence of psychosis" and that she did not seem "markedly depressed or anxious." Id. at 621. According to Dr. Jampel, Bui's cognitive capacities would be in the average range, and she could have some difficulties concentrating. Id. at 620. He also concluded that Bui could carry out instructions and could get along with others. Id. at 621. Finally, he reported that "her medical condition precludes her from managing the pressure of a regular work setting." Id.

         Dr. Manansala's opinion

         Disability Evaluation Services sent Bui to a clinical diagnostic interview with psychologist Linda Manansala ("Dr. Manansala"). Id. at 1015. Dr. Manansala reported that during the interview "the client's mood appeared sad, tearful, but pleasant." Id. at 1019. According to her, Bui may have difficulty maintaining "focus and concentration in a work setting." Id. Dr. Manansala also reported that Bui's ability to work might depend on her physical status and that it might be difficult for Bui to initiate social contact. Id. at 1020.

         Dr. Thakur's opinion

         Disability Evaluation Services also sent Bui to a physical examination with Dr. Thakur. Id. at 1022. He found that Bui had a "coarse tremor'' in both hands. Id. Bui also had difficulties in walking and in climbing stairs. Id. at 1024.

         Dr. Keuthen's opinion

         Bui was also examined by psychologist Dr. Nancy Keuthen, Ph.D. ("Dr. Keuthen") of Disability Determination Services. Id. at 99. Dr. Keuthen ordered an examination of Bui in October 2014. Id. She concluded that Bui could never climb ladders and frequently stoop, kneel or crouch. Id. at 101. She additionally recommended that Bui avoid concentrated exposure to vibration. Id. at 102. Dr. Keuthen found that Bui would be moderately limited in carrying out detailed instructions and maintaining concentration for extended periods. Id. at 103. Bui would also have limitations in working at a consistent pace, without ...

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