United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
Taryn Loretta Covell (“Covell”) filed claims for
disability insurance benefits (“SSDI”) and
supplemental security income (“SSI”) with the
Social Security Administration. Pursuant to the procedures
set forth in the Social Security Act (“SSA”), 42
U.S.C. §§ 405(g) and 1383(c)(3), Covell brings this
action for judicial review of the final decision of Defendant
Nancy A. Berryhill, Acting Commissioner of the Social
Security Administration (“Commissioner”), which
was issued by Administrative Law Judge Sujata Rodgers
(“ALJ”) on March 31, 2017, denying Covell's
claim. Before the Court are Covell's motion to reverse,
D. 15, and the Commissioner's motion to affirm, D. 16.
For the reasons discussed below, the Court DENIES
Covell's motion, D. 15, and ALLOWS the Commissioner's
motion, D. 16.
was 27 years old when she stopped working due to a disability
that began on December 31, 2011. R. 23, 204. Prior to
December 31, 2011, Covell had worked as a cashier for
multiple companies and held various other jobs. R. 53-54.
Covell's May 2015 application for SSDI and SSI, she
claimed disabilities of depression, anxiety, asthma,
respiratory problems and chronic obstructive pulmonary
disease (“COPD”), R. 134, and asserted that she
was unable to work as of December 31, 2011, R. 204. After an
initial review, the Social Security Administration denied
Covell's claims on September 15, 2015. R. 130. Upon
reconsideration, the Social Security Administration again
denied Covell's claims on January 11, 2016. R. 143. On
February 2, 2016, Covell filed a request for a hearing before
an ALJ. D. 149. On January 18, 2017, the ALJ held a hearing,
during which Covell and Ralph Richardson, a vocational expert
(“VE”), testified. R. 20; D. 15 at 1. In a
written decision dated March 31, 2017, the ALJ determined
that Covell was not disabled within the meaning of the SSA.
R. 35; D. 15 at 1. Covell requested a review of the ALJ's
decision by the Appeals Council, and after reviewing the
administrative record, the Appeals Council denied
Covell's request on December 4, 2017. R. 1; D. 15 at 1.
Covell now seeks judicial review by this Court pursuant to 42
U.S.C. §§ 405(g), 1383(c)(3). D. 15 at 1.
Entitlement to SSDI and SSI
claimant is entitled to SSDI and SSI benefits if she has a
qualified “disability.” 42 U.S.C. §
423(a)(1)(E). A “disability” under the SSA is
defined as an “inability 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 has lasted or can be expected to last for a
continuous period of not less than 12 months.”
Id. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R.
§ 404.1505(a). The disability must be sufficiently
severe that it renders the claimant so physically or mentally
incapable that the claimant is unable to engage in any
previous work or other “substantial gainful work which
exists in the national economy.” 42 U.S.C. §
423(d)(2)(A); 20 C.F.R. § 404.1505(a).
Commissioner is obligated to follow a five-step sequential
evaluation to determine whether a claimant is disabled and,
thus, whether the application for Social Security benefits
should be granted. 20 C.F.R. § 416.920(a). First, if the
claimant is engaged in substantial gainful work activity, the
application is denied. Id. § 416.920(a)(4)(i).
Second, if the claimant does not have, or has not had, within
the relevant time period, a “severe medically
determinable” impairment or combination of impairments,
the application will also be denied. Id. §
416.920(a)(4)(ii). Third, if the impairment meets the
conditions of one of the listed impairments in the Social
Security regulations, the application will be approved.
Id. § 416.920(a)(4)(iii). Fourth, where the
impairment does not meet the conditions of one of the listed
impairments, the Commissioner determines the claimant's
Residual Functional Capacity (“RFC”) and assesses
the claimant's past relevant work. Id. §
416.920(a)(4)(iv). If the claimant's RFC is such that she
can still perform her past relevant work, her application for
benefits will be denied. Id. Fifth, if the claimant,
given her RFC, education, work experience and age, is unable
to do any other work within the national economy, she is
disabled under the SSA and, therefore, her application will
be approved. Id. § 416.920(a)(4)(v).
Standard of Review
Court has the power to affirm, modify or reverse a decision
of the Commissioner upon review of the record. 42 U.S.C.
§ 405(g). Such judicial review, however, “is
limited to determining whether the ALJ deployed the proper
legal standards and found facts upon the proper quantum of
evidence.” Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999) (citing Manso-Pizarro v. Sec'y of
Health & Human Servs., 76 F.3d 15, 16 (1st Cir.
1996) (per curiam)). The ALJ's finding of fact are
conclusive when supported by “substantial
evidence.” 42 U.S.C. § 405(g). Substantial
evidence is “more than a mere scintilla, ”
Richardson v. Perales, 402 U.S. 389, 401 (1971), and
exists “if a reasonable mind, reviewing the evidence in
the record as a whole, could accept it as adequate to support
[the Commissioner's] conclusion, ” Rodriguez v.
Sec'y of Health & Human Servs., 647 F.2d 218,
222 (1st Cir. 1981).
Covell's Hospital and Emergency Visits
examined extensive evidence regarding Covell's medical
history, including treatment records, assessments and
diagnoses. See R. 24-33, 38-40. The ALJ noted that
Covell was admitted to the hospital multiple times from
2011, Covell was admitted to the hospital twice for
pneumonia, R. 287, 289; D. 15 at 3, and treated three other
times in the emergency room (“ER”) without
hospital admission for pneumonia, cough, myalgia and acute
bronchitis, R. 299-304; D. 15 at 4.
January 2012, Covell was admitted to Melrose-Wakefield
Hospital for three days and diagnosed with eosinophilic
pneumonitis with flare-up, acute exacerbation of COPD and
tobacco dependence syndrome. R. 276. During that hospital
visit, Covell's doctor told her that smoking would
exacerbate her respiratory ailments. Id.; D. 15 at
3. In June 2013, Covell was treated in the ER without
admission for pneumonia with a history of asthma. R. 719; D.
15 at 4. Two months later, a nurse noted that Covell had been
in the hospital sometime around August 10, 2013 for
pneumonia. R. 856; D. 15 at 3.
months later, in January 2014, Covell was admitted to Whidden
Hospital for two days and diagnosed with asthma exacerbation,
anxiety and tobacco dependence. R. 729-30; D. 15 at 3. In
March 2014, she was readmitted to Whidden Hospital for
shortness of breath and cough. R. 732. Covell was transferred
to the intensive care unit (“ICU”) and diagnosed
with acute hypoxemic respiratory failure and asthma. R. 733;
D. 15 at 3. Three months later, in June 2014, Covell went to
the ER for a breathing problem and was admitted to the ICU.
R. 747, D. 15 at 4. Covell was considered
“critical” upon admission and diagnosed with
respiratory bronchiolitis with associated interstitial lung
disease, pneumonia, asthma and tobacco use disorder. R. 746,
761. Covell was discharged in “good” condition.
that year, in August 2014, Covell was admitted to the ICU at
Central Maine Medical Center and stayed for seventeen days.
R. 448; D. 15 at 4. Her admission diagnosis was acute hypoxic
respiratory failure with acquired respiratory distress
syndrome. R. 448. Covell's secondary diagnoses included
but were not limited to community-acquired (bacterial)
pneumonia, elevated blood pressure, delirium and seizure.
Id. Dr. Imad Durra noted that Covell had
“poorly-controlled asthma, ” “problems with
a variety of environmental allergies that can precipitate
asthma attacks” and “ongoing smoking.” R.
403. Dr. Lorky N. Libaridian wrote a progress note in October
2014 indicating that Covell's strength, breathing and
cough had improved since Covell quit smoking. R. 622.
was taken to the ER in February 2015 for chest pains and
coughing and she was diagnosed with shortness of breath
likely caused by COPD. R. 594, 598; D. 15 at 4. Later that
year, in September 2015, Covell was treated at Whidden
Hospital for cough, fevers, chills, myalgias and shortness of
breath and was diagnosed with community acquired pneumonia
and asthma exacerbation. R. 769-73; D. 15 at 4. In October
2016, Covell told her primary care physician
(“PCP”) that she had recently gone to the ER for
asthma. R. 909; D. 15 at 4. 2. Treatment by Nurse Sherryl
Rosen Covell was treated by Nurse Sherryl Rosen, MS, RN,
CS, (“Rosen”) for anxiety and mood disorder from
January 2011 to November 2016. R. 492-572, 792-897; D. 15 at
4. Covell went to treatment with Rosen about twice per month.
R. 29, 492-573, 792-897. Rosen assessed Covell's mood and
anxiety disorders and refilled and adjusted Covell's
medications throughout her treatment. R. 29, 492-573,
792-897. Rosen rated Covell's Global Assessment Function
(“GAF”)scores between a low of 53, R. 493, and a
high of 62, R. 505.
reported that Covell had a nicotine dependency, R. 572, and
subsequently noted that Covell had, among other things, COPD,
chronic pneumonia and asthma, R. 792, 870, 874; D. 15 at 5.
In May 2011, Covell told Rosen that the nicotine patch and
Chantix had not worked to stop her smoking. R. 566; D. 15 at
5. In September 2012, Rosen determined that Covell's mood
had improved (noting only “mild depressive
symptoms”) and observed that Topamax had been effective
in resolving Covell's mood problems. R. 544. During a
December 2012 visit, Covell reported an increase in symptoms
of depression, but the provider (filling in for Rosen) stated
that it was likely related to physically being unwell and
family stressors around Christmas. R. 29, 541. In January
2013, Covell underwent a mental status examination that
showed she had adequate grooming, cooperative behavior,
normal perception, normal thoughts, intact orientation and
normal memory, but also rapid speech, impaired concentration
and irritable mood and affect. R. 29, 539-540. During the
first half of 2013, Covell increased her intake of Abilify to
control her depressive symptoms and her GAF score rose to 60.
R. 29, 533-540.
early months of 2014, Covell told Rosen that she was smoking
three to four cigarettes per day but planned to switch to
vapor cigarettes and taper off nicotine. R. 841, 845; D. 15
at 5. In April 2014, Covell told Rosen that she was using an
electronic cigarette, R. 839, but Rosen wrote in a June 2014
note that Covell “deals with stress by smoking
cigarettes which is not good for her respiratory problems,
” R. 831; D. 15 at 5. In June 2014, Covell told Rosen
that she was not smoking due to asthma problems. R. 861; D.
15 at 5. From late 2014 to April 2015, Covell reported to
Rosen that she had almost quit smoking but still smoked
occasionally when triggered by stressors. R. 811, 821; D. 15
at 6. In May 2014, Rosen assessed Covell's GAF score at
62. R. 505. By September 2014, Rosen assessed Covell's
GAF score as 53. R. 493.
Christmas in 2015, Covell reported increased anxiety and
trouble sleeping to Rosen and her GAF score was 55. R. 792.
In June 2016, Rosen indicated that Covell was smoking a
half-pack of cigarettes per week. R. 887; D. 15 at 6. In
November 2016, Rosen conducted a mental status examination.
R. 874. Rosen noted that Covell had increased her dosage of
Seroquel and was cooperative with a normal mood, normal
energy, normal speech and normal memory, but had impaired
concentration. Id. Covell's GAF was 55.
Treatment by Dr. Robert Hallowell
began seeing Dr. Robert Hallowell, a pulmonologist, in
October 2014. R. 577. Dr. Hallowell opined that Covell's
history of asthma and her pneumonia episodes could represent
a “true infection” and a form of
immunodeficiency. R. 578. He stated that, alternatively,
Covell could have “some inflammatory pulmonary
process.” Id. In November 2014, Covell
reported to Dr. Hallowell that she could walk for thirty
minutes a day without experiencing shortness of breath and
that her main limitation in exercising was leg pain. R. 579.
In December 2014, Dr. Hallowell saw Covell, whose main
complaints were back and chest pain. R. 582. Dr. Hallowell
recommended a CT of Covell's chest, an exercise regimen
and a psychiatric follow-up for depression. R. 589. Covell
also saw Dr. Hallowell in June 2015, when she reque sted a
pres cription for a patch to help her quit smoking again. R.
640. 4. State Agency Consultations a) Dr.
Komer's Assessment In August 2015, the state agency
physician Dr. Roger Komer, M.D., examined Covell. R. 653-55.
Dr. Komer's evaluation revealed that Covell's lungs
were clear. R. 654. Dr. Komer also noted that Covell
“[could] walk a distance of three to four blocks”
and “appear[ed] well adjusted” from a
psychosocial perspective. Id. at 653-54.
Dr. Hom's Assessment
September 2015, Covell saw Dr. Elaine Hom, M.D., who assessed
Covell's physical RFC. R. 77-78. Dr. Hom found that
Covell had a normal gait and breathed comfortably. R. 78. Dr.
Hom noted there was “no indication” that Covell
had daily pneumonia and found Covell only “partially
credible.” Id. Dr. Hom suggested (among other
things) that Covell avoid concentrated exposure to extremes
of weather, humidity, wetness and fumes due to her asthma.
Dr. Kurlander's Assessment
September 2015, Dr. Karen Kurlander, Ph.D., conducted a
psychological consultative examination on Covell. R. 657-61.
Covell told Dr. Kurlander that she had anxiety and
depression. R. 658. Dr. Kurlander's mental status
examination of Covell indicated that Covell had “vague,
but . . . generally okay” long-term memory,
“normal” thought processes, “fine”
cognitive function, “fine” abstract thinking and
the ability to complete all tasks asked of her with
“relative ease.” R. 659. Dr. Kurlander
diagnosed Covell with moderate depression and periodic
anxiety attack and a GAF score of 53. R. 660-61.
Dr. Kellmer's Assessment
September 2015, Covell underwent a psychological review with
the state agency psychologist, Dr. Judith Kellmer, Ph.D. R.
74-75, 78-80. Dr. Kellmer concluded Covell could focus on
work-related tasks for short periods on a normal schedule in
a low-stress environment with a supportive supervisor. R.
74-75, 78-80. Dr. Kellmer reported ...