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Kem v. Berryhill

United States District Court, D. Massachusetts

December 11, 2018

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



         This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration (“Commissioner”) denying the application of Ericka Kem (“Plaintiff”) for Social Security Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits because the Commissioner held that Plaintiff's impairments did not render her disabiled. Plaintiff has filed a Motion for Order Reversing the Decision of the Commissioner (Docket No. 18), and the Commissioner has filed a cross Motion to Affirm the Commissioner's Decision. (Docket No. 20). For the reasons set forth below, Plaintiff's motion (Docket No. 18) is granted and Defendant's motion (Docket No. 20) is denied.


         1. Procedural History

         On March 24, 2014, Plaintiff filed for DIB and SSI. (AR 32, 211-212, 218-228). Plaintiff claimed she was unable to work since March 4, 2014. (AR 211, 218). Both applications were denied. (AR 129-134, 139-144). A hearing was subsequently held before an Administrative Law Judge (“ALJ”) on July 28, 2015. (AR 48-74). On August 31, 2015, the ALJ found that Plaintiff was not disabled. (AR 26-42). On October 18, 2016, the Appeals Council denied Plaintiff's request for review (AR 4-9), thus making the ALJ's decision the final decision of the Commissioner. Plaintiff has exhausted her administrative remedies, and this case is therefore now ripe for review under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         2. Medical History

         On January 9, 2014, Dr. Cruz wrote that Plaintiff was “diagnosed with depression and anxiety. Due to increased stress exacerbation of her depression/anxiety, we recommend that patient changes her job title/job position.” (AR 426). Plaintiff's depression and anxiety were caused by several factors including a traumatic childhood in a warzone and being sexually abused in her early twenties. (AR 640; 565).

         On January 16, 2014, Plaintiff was admitted to the neurological department at UMass Memorial Medical Center for numbness on her left side and the possibility of a seizure. (AR 408). The attending physician found Plaintiff alert and oriented to three spheres, she seemed anxious but not agitated, her fluency and comprehension were normal, there was no pronator drift, and she had a mild slightly high amplitude tremor in her bilateral upper extremities. (AR 411). Further, Plaintiff's strength was observed as five out of five, she had decreased sensation in her face and left upper extremity, her Romberg test was negative, and her cerebellar function and gait were normal. (AR 411). While she was hospitalized, Plaintiff had an EEG which was normal and a CT scan of her head which revealed numerous scattered calcifications throughout both cerebral hemispheres that could represent sequalae of prior granulomatous disease. (AR 414). On January 18, Plaintiff was discharged with a prescription for an increased dose of Tegretol. (AR 408).

         On January 27, 2014, following her hospitalization, Dr. Jennifer Moodie wrote, “no driving for 6 months. Activity as tolerated, no heavy weight lifting, no pushing or pulling of heavyweights, no strenuous activity, do not lock bathroom doors from inside when alone at home. Diet should be containing less than 2 g of sodium per day.” (AR 472).

         On March 11, 2014, Dr. Cruz wrote that Plaintiff “has symptoms of depression and anxiety due to her work.” (AR 425). On March 27, 2014, Courtney Petter, LMHC, completed a Psychiatric Disorder Form. (AR 485-487). Ms. Petter concluded that Plaintiff's Global Assessment of Functioning (“GAF”) score was 56, [1] she was oriented to three spheres, and there were no concentration and attention deficits (AR 485). Further, Ms. Petter diagnosed Plaintiff with major depressive disorder. Id.

         On March 28, 2014, Dr. Cruz saw Plaintiff, who complained that she was continuing to have memory problems. He noted she was “working in housekeeping” though recently, she slipped and fell on her right side. (AR 491). Dr. Cruz also recommended that Plaintiff speak with a neurologist about her memory loss and headaches. (AR 492). Dr. Cruz opined that Plaintiff's “memory loss can be due to her depression/anxiety. This can also be due to the Topamax medication. However, we cannot stop this medication because of his or her seizure.” (AR 494).

         During the summer of 2014, Plaintiff began treating with Margot Pagan, MA. In her initial assessment, Ms. Pagan assigned Plaintiff a GAF score of 56 and noted Plaintiff suffered from anxiety and depression. (AR 532-42). Plaintiff continued treating with Ms. Pagan through July 2015. During that time, Ms. Pagan Ms. Pagan noted Plaintiff was “extremely challenged by symptoms of depression” (AR 805) and found no significant changes in Plaintiff's mood/affect, thought process/orientation, behavior/functioning, or medical conditions. (AR 790-827, 848-860).

         On July 28, 2014, Plaintiff again presented to UMass Memorial Medical Center. Dr. Butler noted that Plaintiff had a few beers the night before and then had intentionally taken more than 10 Baclofen in a suicide attempt. (AR 576). Her suicide risk assessment tools noted severe depression, preoccupation with hopelessness, despair, feelings of worthlessness, and continued suicidal thoughts. Id. On assessment, Plaintiff was anxious, crying, and depressed. Id. In addition, Dr. Butler found Plaintiff to be a low suicide risk. (AR 570). The same day, Plaintiff was seen by Michael Lebeaux, a therapist affiliated with Community Health Link, and he assigned her a GAF score of 50.[2] (AR 645).

         On August 5, 2014, Plaintiff treated with Ronald Gobeil, DO. (AR 564). Plaintiff reported being depressed and anxious. Dr. Gobeil reported that Plaintiff was dysphoric over her job situation and hesitant to find a new job, maybe because she feared a similar situation as her last job where she had problems with a co-worker. (AR 564). Two days later, Plaintiff again treated with Dr. Cruz. Plaintiff informed Dr. Cruz about her suicide attempt and Dr. Cruz noted that she presented with depression. (AR 549).

         On October 21, 2014, Plaintiff was treated at the neurology clinic and reported that she had a seizure the previous weekend. Plaintiff reported “deep depression” and that Topamax was worsening he memory problems. On examination, Drs. Chu and Ramirez found that Plaintiff denied suicidal ideation, she was alert and oriented to three spheres, her upper extremity strength was rated as five out of five, her lower extremity strength was four plus out of five, and her sensation, gait, cerebellar function, and coordination were normal. (AR 565, 567). Further, Dr. Chu concluded that Plaintiff's seizures were uncontrolled and therefore ordered an extended EEG and increased her dosage of carbamazine. (AR 568). On October 26, 2014, Plaintiff was again treated at the UMass Memorial Medical Center and reported that she had a seizure. The EMT reported, however, that it appeared that she had a panic attack. (AR 785).

         On June 3, 2015, John Fleming, LMHC, RN, noted that Plaintiff reported experiencing increased stress, resulting in increased anxiety and depression (AR 649). Nurse Fleming then found Plaintiff was oriented to four spheres, she was not experiencing any delusions or hallucinations, her though process was linear, she was easily engaged with a tearful affect at times, and she had passive suicidal ideation with no intent. (AR 651). Further, Nurse Fleming assigned Plaintiff a GAF score of 55. (AR 657).

         Plaintiff continued to receive treatment from Island Counseling Center through July 2015. (AR 680-691). During that period, Dr. Gobeil noted that Plaintiff was anxious, depressed, and dysphoric. Id.

         From June 11, 2015 to July 17, 2015, Plaintiff participated in an outpatient day program. (AR 692-717). Notes from the program reflect Plaintiff being observed as “upset” and “really depressed.” (AR 690; 694). Dr. Nesr, a psychiatrist, diagnosed Plaintiff with PTSD, depression, and anxiety. (AR 706). In addition, she was assigned a GAF score of 45. (AR 710).

         On June 16, 2015, Plaintiff presented to the ER for facial numbness. (AR 740). It was noted that due to her ongoing seizures, “all seizure precautions apply for 6 months from the date of the last seizure.” (AR 741). The same day, Plaintiff had a CT scan of her head that revealed no acute abnormalities and was unchanged from the prior scan in January 2014. (AR 747). The next day, Plaintiff treated with Dr. Gobeil. She appeared anxious and depressed. (AR 62). On June 30, 2015, Plaintiff reported intense anxiety to Ms. Pagan. On July 22, 2015, Plaintiff reported to Ms. Pagan that she was feeling better after a three-day hospitalization. (AR 858).

         On July 14, 2015, Plaintiff again presented to UMass memorial Medical Center complaining of suicidal thoughts, stating that she did not want to live and wanted to take pills. (AR 762). On examination, the attending provider found Plaintiff alert and oriented to three spheres, her affect was anxious, she was crying, and her speech was normal. (AR 763, 767). The same day, Ms. Pagan submitted a Mental Medical Source Statement. (AR 661-666). Ms. Pagan noted that she had been treating Plaintiff biweekly since June 20, 2014 and wrote that Plaintiff had “severe symptoms of depression according to a major depression inventory (7/14/15) severe symptoms of anxiety according to the Hamilton [A]nxiety [S]cale.” Further, Ms. Pagan noted Plaintiff's “severe difficulties” recovering and need for long-term continued care to overcome her symptomology. (AR 661). According to Dr. Pagan, Plaintiff would be unable to complete a normal workday and workweek without interruptions form her symptom's accept instructions and respond appropriately to criticism, respond properly to changes in routine work setting, deal with normal work stress, be aware of normal hazards, and take appropriate precautions. She found Plaintiff would be off task 25% of the day and absent six days or more a month due to her mental health symptoms. (AR 666).

         Similarly, on July 16, 2015, Dr. Gobeil completed a Mental Medical Source Statement. He concluded that Plaintiff would be unable to complete a normal workday and workweek without interruptions from her symptoms, accept instructions and respond appropriately to criticism, respond properly to changes in routine work setting, deal with normal work stress, and be aware of normal hazards and take appropriate precautions. According to Dr. Gobeil, Plaintiff “would be off task 33% of the day and absent six days or more a month due to her mental health symptoms.” (AR 666).

         On July 22, 2015, Dr. Cruz again concluded that Plaintiff was disabled because “she gets anxious at work. She has no energy to do things due to depression.” (AR 720). In his opinion, Plaintiff would be absent from work more than three days per month and off task more than 30% of the day if she returned to work. Id. Therefore, he concluded “within a reasonable degree of medical certainty” that Plaintiff was “unable to obtain and retain work in a competitive work environment, 8 hours per day, 5 days per week.” Id.

         3. Hearing Testimony

         On July 28, 2015, Plaintiff testified at a hearing before the ALJ. She testified that she did not feel like she had improved since March of 2015 and that she continued to treat at a mental health facility Monday to Friday 9:00 a.m. to 3:00 p.m. (AR 54). Further, she said that she left her previous job because of stress and worsening depression. (AR 55). Plaintiff told the ALJ that she cries frequently, struggles with concentration, and has panic attacks approximately three times per week. (AR 56; 62). Finally, Plaintiff testified that she tried to work as a housekeeper but she “was very, very slow and . . . got a complaint from [her] supervisor, and . . . somedays [she] was okay, and other days [she] was very anxious, and depressed and crying and . . . couldn't do the job.” (AR 62).

         Standard ...

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