United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION
FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION TO
AFFIRM THE DECISION OF THE COMMISSIONER (Docket Nos. 15 &
KATHERINE A. ROBERTSON U.S. MAGISTRATE JUDGE
Lee Armata ("Plaintiff") brings this action
pursuant to 42 U.S.C. §§ 405(g) seeking review of a
final decision of the Acting Commissioner of Social Security
("Commissioner") denying her application for Social
Security Disability Insurance Benefits ("DIB").
Plaintiff applied for DIB on December 3, 2013, alleging a
June 22, 2013 onset of disability, due to problems stemming
from a variety of impairments, including: blind spots in her
left eye; high blood pressure; a stroke; a heart attack;
diabetes; neuropathy; and headaches (A.R. at 183,
360).On February 26, 2016, the Administrative
Law Judge ("ALJ") found that Plaintiff was not
disabled and denied her application for DIB and SSI
(id. at 183-198). The Appeals Council denied review
(id. at 1-4) and thus, the ALJ's decision became
the final decision of the Commissioner. This appeal followed.
appeals the Commissioner's denial of her claim on the
ground that the decision is not supported by
"substantial evidence" under 42 U.S.C. §
405(g). Pending before this court are Plaintiff's motion
for judgment on the pleadings requesting that the
Commissioner's decision be reversed or remanded for
further proceedings (Dkt. No. 15), and the Commissioner's
motion for an order affirming the decision of the ALJ (Dkt.
No. 19). The parties have consented to this court's
jurisdiction (Dkt. No. 14). See 28 U.S.C. §
636(c); Fed.R.Civ.P. 73. For the reasons stated below, the
court DENIES in part the Commissioner's motion for an
order affirming the decision and GRANTS in part
Plaintiff's motion for remand.
Standard for Entitlement to Disability Insurance Benefits
and Supplemental Security Income
order to qualify for DIB, a claimant must demonstrate that
she is disabled within the meaning of the Social Security
A claimant is disabled for purposes of DIB if she "is
unable 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 which
has lasted or can be expected to last for a continuous period
of not less than twelve months." 42 U.S.C. §
423(d)(1)(A). A claimant is unable to engage in any
substantial gainful activity when she
is not only unable to do [her] previous work, but cannot,
considering [her] age, education, and work experience, engage
in any other kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists
in the immediate area in which [s]he lives, or whether a
specific job vacancy exists for [her], or whether [s]he would
be hired if [s]he applied for work.
42 U.S.C. § 423(d)(2)(A). The Commissioner evaluates a
claimant's impairment under a five-step sequential
evaluation process set forth in the regulations promulgated
by the Social Security Administration ("SSA").
See 20 C.F.R. § 404.1520(a)(4)(i-v). The
hearing officer must determine: (1) whether the claimant is
engaged in substantial gainful activity; (2) whether the
claimant suffers from a severe impairment; (3) whether the
impairment meets or equals a listed impairment contained in
Appendix 1 to the regulations; (4) whether the impairment
prevents the claimant from performing previous relevant work;
and (5) whether the impairment prevents the claimant from
dong any work considering the claimant's age, education,
and work experience. See id; see also Goodermote v.
Sec'y of Health & Human Servs., 690 F.2d 5, 6-7
(1st Cir. 1982) (describing the five-step process). If the
hearing officer determines at any step of the evaluation that
the claimant is or is not disabled, the analysis does not
continue to the next step. 20 C.F.R. § 404.1520(a)(4).
proceeding to steps four and five, the Commissioner must make
an assessment of the claimant's RFC, which the
Commissioner uses at step four to determine whether the
claimant can do past relevant work and at step five to
determine if the claimant can adjust to other work. See
RFC is what an individual can still do despite his or her
limitations. RFC is an administrative assessment of the
extent to which an individual's medically determinable
impairment(s), including any related symptoms, such as pain,
may cause physical or mental limitations or restrictions that
may affect his or her capacity to do work-related physical
and mental activities Social Security Ruling
("SSR") 96-8p, 1996 WL 374184, at *2 (July 2,
claimant has the burden of proof through step four of the
analysis, including the burden to demonstrate RFC.
Flaherty v. Astrue, Civil Action No. 11-11156-TSH,
2013 WL 4784419, at *8-9 (D. Mass. Sept. 5, 2013) (citing
Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
2004)). At step five, the Commissioner has the burden of
showing the existence of jobs in the national economy that
the claimant can perform notwithstanding his or her
restrictions and limitations. Goodermote, 690 F.2d
Standard of Review
district court may enter a judgment affirming, modifying, or
reversing the final decision of the Commissioner, with or
without remanding for rehearing. See 42 U.S.C.
§ 405(g). Judicial review "is limited to
determining whether the ALJ used the proper legal standards
and found facts upon the proper quantum of evidence."
Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655
(1st Cir. 2000). The court reviews questions of law de
novo, but must defer to the ALJ's findings of fact
if they are supported by substantial evidence. Id.
(citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.
1999) (per curiam)). Substantial evidence exists
"'if a reasonable mind, reviewing the evidence in
the record as a whole, could accept it as adequate to support
[the] conclusion.'" Irlanda Ortiz v. Sec'y
of Health & Human Servs., 955 F.2d 765, 769 (1st
Cir. 1991) (quoting Rodriguez v. Sec'y of Health
& Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).
"While 'substantial evidence' is 'more than
a scintilla,' it certainly does not approach the
preponderance-of-the-evidence standard normally found in
civil cases." Bath Iron Works Corp. v. U.S.
Dep't of Labor, 336 F.3d 51, 56 (1st Cir. 2003)
(citing Sprague v. Dir., Office of Workers' Comp.
Programs, U.S. Dep't of Labor, 688 F.2d
862, 865 (1st Cir. 1982)). In applying the substantial
evidence standard, the court must be mindful that it is the
province of the ALJ, and not the courts, to determine issues
of credibility, resolve conflicts in the evidence, and draw
conclusions from such evidence. See Irlanda Ortiz,
955 F.2d at 769. So long as the substantial evidence standard
is met, the ALJ's factual findings are conclusive even if
the record "arguably could support a different
conclusion." Id. at 770. That said, the ALJ may
not ignore evidence, misapply the law, or judge matters
entrusted to experts. Nguyen, 172 F.3d at 35.
time of the hearing before the ALJ in November 2015,
Plaintiff was 59 years old and lived with her husband and her
34 year old son (A.R. at 209-10). She attended one year of
college and worked full-time as a payroll clerk and as a
dispatcher for trucking companies (id. at 197,
209-13). She had not worked since June 2013 (id. at
Plaintiff's Physical Condition
3, 2012, Plaintiff was admitted to the Mercy Medical Center
due to a "non-q-wave myocardial infarction" caused
by acute blood loss from a gastrointestinal bleed
(id. at 441, 443-45). She had a history of
hypertension, diabetes mellitus ("DM"), mild
hyperlipidemia, and "some anxiety," which was being
treated with Klonopin (id. at 443).
January 21, 2013, Plaintiff went to the Baystate Medical
Center Emergency Room complaining of a headache, numbness on
her left side, a "dead spot" in her vision, and
blurred vision (id. at 661, 672, 675). Radiological
imaging showed that she had a "transient is chemic
attack" ("TIA") or a "ministroke"
(id. at 661, 669, 673). Upon discharge from the
medical center, Plaintiff was directed to: see an
ophthalmologist; find a new Primary Care Physician
("PCP"); follow up with the renal doctor;
"manage [her] risk factors aggressively," and
"use [her] medications regularly to prevent another
ministroke/stroke in [the] future" (id. at
January 31, 2013, Plaintiff followed up her hospital stay
with Elizaveta House, N.P. of Hampden County Physicians
Associates ("HCPA") (id. at 636, 639). The
record of the visit indicates that Plaintiff's numbness
"was resolved and never returned" (id. at
636). Her right eye had a "blind spot in the
center" causing Plaintiff to use her peripheral vision
to see objects (id. at 636). Vision in her left eye
was "'just blurry'" (id.).
According to N.P. House's report, Plaintiff had a history
of "poor compliance with [her] provider's
recommendations" and "was discharged by her prior
PCP for not following his recommendations" (id.
at 636, 639).
record of Plaintiff's March 14, 2013 visit to HCPA states
that Plaintiff reported mild forgetfulness (id. at
631). Plaintiff wondered whether it was related to fatigue
because she was working full-time (id.). N.P. House
ruled out dementia based on Plaintiff's score of 29 on a
mini mental exam (id. at 635). Plaintiff refused
N.P. House's recommendation that she consult a
neurologist due to an abnormal MRI and the TIA
March 15, 2013, Steven J. Covici, M.D., an oculofacial
plastic and reconstructive surgeon, evaluated the blind spot
in Plaintiff's left eye (id. at 650). Dr. Covici
noted that Plaintiff's eye examination "appeared
within normal limits" (id.). A Humphrey visual
field test showed "a blind spot in the inferior left
quadrant in both eyes, in other words it is homonymous, which
localizes posterior to the optic chasm" (id.).
On April 12, 2013, Dr. Covici reported that Plaintiff's
CT scan "showed areas of decreased attenuation in the
right parietal and occipital lobes, which most likely
accounts for the left homonymous scotoma [blind spot]"
(id. at 647). Dr. Covici noted that there was
"no therapy" to address Plaintiff's condition
House's note from Plaintiff's May 30, 2013 visit to
HCPA states that Plaintiff's DM2 was
"uncontrolled" due to "poor compliance with
diet and meds" (id. at 629, 630). N.P. House
stressed medication compliance for DM2 and hypertension
August 31, 2013, Plaintiff visited the Noble Hospital
complaining of a stabbing pain in her left ribs that radiated
to the middle of her back on the left side (id. at
461, 463). A note says: "[Patient] lost insurance - has
not taken her meds for several months - since May. Now has
insurance. Mass. Health" (id. at 461). A CT
scan of Plaintiff's chest was normal with no rib
fractures or pulmonary contusions (id. at 472). The
discharge diagnosis was "[p]ossible early shingles"
(id. at 470).
September 4, 2013, Plaintiff visited HCPA complaining of pain
that extended from her abdomen to her back (id. at
516). Shingles was diagnosed (id. at 519). N.P.
House noted that Plaintiff took her DM medication and checked
her glucose "infrequently" (id. at 516).
returned to HCPA five days later on September 9, 2013
complaining of left upper abdominal pain (id. at
512). The records state that Plaintiff did not pick up the
refills of her medications that were submitted on September
4, 2013 because "she thought it could wait"
(id.). She reported that she did not take Januvia or
statin continuously as prescribed because she lost her
insurance and "'tried to stretch it out due to
cost'" (id.). On that date, Plaintiff
reported that she had insurance (id.).
September 10, 2013, Plaintiff had a follow-up appointment to
address her DM2 and hyperlipidemia and the results of the
blood tests conducted on September 9 (id. at 506,
509). Plaintiff was working part-time (id. at 506).
She indicated that she had not been taking Januvia for DM2
and Rosuvastatin as prescribed (id. at 506, 510).
N.P. House discontinued Januvia because Plaintiff's
insurance did not cover it and prescribed Victoza to replace
it (id. at 510). According to N.P. House's
notes, she would prescribe Lantus if Plaintiff's insurer
declined coverage for Victoza (id. at 497, 510).
October 1, 2013, Plaintiff discussed her diabetes medication
with N.P. House (id. at 497). Although Plaintiff did
not get Lantus because she was told that "'her
insurance does not cover it, '" she did not inform
HCPA (id.). N.P. House reported that Plaintiff's
DM2 was "uncontrolled . . . with renal
manifestations" and "poor compliance"
(id. at 500). N.P. House provided Plaintiff with a
sample of Victoza (id.). Plaintiff was taking
Simvastatin on that date (id. at 497).
October 29, 2013, Plaintiff was doing well on Victoza
(id. at 502, 505). On November 14, 2013, Plaintiff
reported to N.P. House that she checked her glucose daily and
took her medication as prescribed (id. at 493). N.P.
House noted that Plaintiff's response to Victoza was
"excellent," her overall health had improved, and
her compliance with medication was "good"
(id. at 496).
record for Plaintiff's January 14, 2014 visit to HCPA
indicates that Plaintiff was using Victoza and her DM2 was
well-controlled (id. at 488, 492). She felt good and
was taking care of horses, walking her dog, and cleaning her
home (id. at 488).
April 24, 2014, Plaintiff reported to N.P. House that she was
taking Victoza every day and had starting working part-time
at a horse farm, which involved going "up and down hill
most of the time" (id. at 550). She sometimes
forgot to take her statin medication for hyperlipidemia
(id.). She was referred to a nephrologist due to
proteinuria "most likely due to [history] of
[hypertension] and DM2 that was uncontrolled for many
years" (id. at 553).
2, 2014, Plaintiff had a follow-up visit with N.P. House
regarding her DM2 and hyperlipidemia (id. at 554).
The record indicates that Plaintiff had not taken Simvastatin
"for an unknown period of time" and was
non-compliant with her hypertension medication (id.
at 554, 557). When N.P. House called Plaintiff's
pharmacy, she learned that Plaintiff's insurance only
paid for a 30 day supply of Simvastatin and Plaintiff had not
called to refill her medication after she received a 30 day
supply in November 2013 (id. at 557).
18, 2014, Dennis DiCampli, M.D. of Pioneer Valley Nephrology
examined Plaintiff who was referred to him for and evaluation
of chronic kidney disease, specifically elevated creatinine
(id. at 591). Dr. DiCampli noted: "Plaintiff
comes in my office and is very nonchalant. She believes she
is referred here for some detectable protein in the urine.
She really denies any past medical history"
(id.). When Dr. DiCampli reviewed the Mercy Medical
Center and Baystate Medical Center records, however, he found
that she had "major gastrointestinal bleeding, acute
myocardial infarction, cerebrovascular accident, hemoglobin
A1c greater than 12.1, chronic kidney disease with creatinine
of 1.1-1.4 for at least the last 3 years and significant
proteinuria up to close to 2 g per day the last few years as
well" (id.). After examination, Dr. DiCampli
determined that Plaintiff had chronic kidney disease likely
caused by "hypertensive [and] diabetic damage"
(id. at 593). He recommended "aggressive
medical management" but "suspect[ed] that adherence
[would] be an issue" based on her "history of
nonadherence [and] multiple missed appointments"
18, 2014, Madonna M. Santos, O.D. conducted a diabetic eye
examination of Plaintiff (id. at 586). Her visual
acuity was 20/20 in both eyes and there was no retinopathy or
other abnormality (id.).
visited HCPA on July 18, 2014 to get the results of a sleep
apnea evaluation, which indicated that she had a "mild
degree of obstructive sleep apnea" (id. at 559,
562, 581). Plaintiff reported her eye examination revealed
that her vision was 20/20 with glasses (id. at 559).
DiCampli examined Plaintiff again on July 31, 2014
(id. at 588). He noted that Plaintiff's blood
pressure was high and she seemed "rather
nonchalant" about her medical issues (id.). Dr.
DiCampli opined that she "doesn't care about her
health" because she did not complete her "24-hour
urine and her labs" (id.). He suspected that
she had diuretic hypertensive nephrosclerosis and increased
the dosage of amlodipine (id. at 588, 590).
September 5, 2014, Plaintiff complained to N.P. House of
"intermittent bilateral [foot] pain" that began in
her toes and radiated to her knees when she walked
(id. at 612, 616). At night, her feet felt like they
were "on fire" (id. at 612). N.P. House
indicated that Plaintiff's pain was likely caused by
diabetic peripheral neuropathy (id. at 615). N. P.
House prescribed cream for relief (id.).
September 22, 2014, Plaintiff was experiencing right knee
pain and told N.P. House that her knee "'gave
out'" after she walked "a lot" at the
"Big E" (id. at 617, 620). She reported
that her pain was 5 on a scale of 10 and was more intense
when she walked (id. at 617). An October 14, 2014
x-ray of Plaintiff's right knee revealed no
"acute" conditions, but mild to moderate
osteoarthritis was present (id. at 805).
October 24, 2014, Plaintiff reported to N.P. House that she
still had constant knee pain and recently noticed numbness in
her right hand (id. at 621, 625). N.P. House
prescribed medication for Plaintiff's knee pain
(id. at 624). The records indicate that an EMG
conducted to detect carpal tunnel syndrome was negative for
the Tinel test (id.).
met with N.P. House on November 25, 2014 for a six month
check of her hyperlipidemia (id. at 754). Plaintiff
indicated that she did not skip doses of Pravastatin, but did
not start Plavix, as was recommended (id. at 750).
She offered no explanation for failing to take Plavix
(id.). N.P. House prescribed Zetia for
Plaintiff's hyperlipidemia, which had improved but was