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Armata v. Berryhill

United States District Court, D. Massachusetts

October 4, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.



         I. Introduction

         Debra 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).[1]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.

         Plaintiff 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.

         II. Legal Standards

         A. Standard for Entitlement to Disability Insurance Benefits and Supplemental Security Income

         In order to qualify for DIB, a claimant must demonstrate that she is disabled within the meaning of the Social Security Act.[2] 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).

         Before 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 id.

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, 1996).

         The 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 at 7.

         B. Standard of Review

         The 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.

         III. Facts

         A. Plaintiff's Background

         At the 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 210).

         B. Plaintiff's Physical Condition

         On May 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).

         On 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 670).

         On 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).

         The 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 (id.).

         On 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 (id.).

         N.P. 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 (id.).

         On 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).

         On 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).

         Plaintiff 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.).

         On 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).

         On 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).

         On 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).

         The 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).

         On 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).

         On June 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).

         On June 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" (id.).

         On July 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.).

         Plaintiff 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).

         Dr. 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).

         On 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.).

         On 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).

         On 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.).

         Plaintiff 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 not ...

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