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Covell v. Berryhill

United States District Court, D. Massachusetts

January 2, 2019

TARYN LORETTA COVELL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff 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.

         II. Factual Background

         Covell 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.

         III. Procedural Background

         In 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.

         IV. Discussion

         A. Legal Standard

         1. Entitlement to SSDI and SSI

         A 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).

         The 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).

         2. Standard of Review

         The 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).

         B. Medical History

         1. Covell's Hospital and Emergency Visits

         The ALJ 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 2011-2016.

         In 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.

         In 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.

         Five 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. R. 761.

         Later 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.

         Covell 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”)[1]scores between a low of 53, R. 493, and a high of 62, R. 505.

         Rosen 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.

         In the 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.

         Around 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. Id.

         3. Treatment by Dr. Robert Hallowell

         Covell 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.

         b) Dr. Hom's Assessment

         In 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. Id.

         c) Dr. Kurlander's Assessment

         In 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.

         d) Dr. Kellmer's Assessment

         Also in 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 ...


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