Black v. Berryhill

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiff Mary T. Black (“Black”) filed a claim for disability insurance benefits (“SSDI”) with the Social Security Administration on March 11, 2013. R. 10.^[1] Pursuant to the procedures set forth in the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), Black brought this action for judicial review of the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (the “Commissioner”), issued by the Appeals Council (“AC”) on August 17, 2017 denying her claim. R. 737-40. Black moved to reverse the Commissioner's decision, D. 19, and the Commissioner moved to affirm, D. 22. For the reasons stated below, the Court DENIES Black's motion to reverse and ALLOWS the Commissioner's motion to affirm.

         II. Factual Background

         Black was 52 years old on her date last insured, R. 655, and worked as a construction worker from approximately 1994 through 2005, R. 51-52, 80. After 2005 and until 2013, she engaged in intermittent, part-time work, including as an office cleaner. R. 52-58, 80.

         III. Procedural Background

         Black filed a claim for SSDI benefits with the SSA on March 11, 2013, alleging disability as of April 1, 2006. R. 10. Her claim was denied upon initial review, R. 121-23, subsequently reviewed by a federal reviewing official and again denied on November 8, 2013, R. 125-27. On December 3, 2013, Black filed a timely request for a hearing before an ALJ. R. 10. The hearing was held on October 7, 2014, at which Black and vocational expert (“VE”), Crystal Hodgkins, testified. R. 28-91. At the hearing, Black amended her alleged onset date to September 30, 2009. R. 10. The ALJ thus focused his inquiry on the period between Black's onset date of September 30, 2009, and her date last insured, September 30, 2010. R. 42. In a written decision dated November 25, 2014, the ALJ found that Black did not have a disability as defined in the Social Security Act because Black was capable of performing her past relevant work as an office cleaner. R. 19.

         On April 19, 2016, the AC denied Black's request for review. R. 1-3. Black next sought judicial review in Black v. Berryhill, No. 1:16-cv-11158-FDS, filed on June 20, 2016. The Court remanded Black's claim to the AC on March 13, 2017, directing the AC to examine whether Black's work as an office cleaner should be considered “past relevant work” under step four. R. 666-67.

         On August 17, 2017, the AC issued its decision modifying the ALJ's decision. R. 650-56, 737-41. The AC affirmed the ALJ at steps one through three, as well as his residual functional capacity (“RFC”) finding, but did not affirm the ALJ's decision that Black was not disabled under step four. R. 653-54, 737-38. Instead, the AC held that Black was not disabled under step five because a significant number of jobs existed in the national economy that Black could perform. R. 654, 738. Accordingly, the AC determined that Black was not disabled. R. 656. The AC's decision is the final decision of the Commissioner. R. 650.

         IV. Discussion

         A. Legal Standards

         1. Entitlement to SSDI

         A claimant must qualify as having a “disability” to be entitled to SSDI benefits. 42 U.S.C. § 416(i)(1). The Social Security Act defines “disability” 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). To qualify as a disabling impairment, the physical or mental impairment must be sufficiently severe such that it renders the claimant unable to engage in any of her 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 must follow a five-step sequential analysis to determine whether the claimant is disabled and thus whether the application for Social Security benefits should be granted. 20 C.F.R. § 416.920(a). The determination may be concluded at any step of the analysis. 20 C.F.R. § 416.920(a)(4). 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 is denied. Id. at § 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 is granted. Id. at § 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 RFC. Id. at § 416.920(a)(4)(iv). If the claimant's RFC is such that she can still perform her past relevant work, the application is 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 and the application is granted. Id. at § 416.920(a)(4)(v).

         2. Standard of Review

         This Court has the power to affirm, modify or reverse a decision of the Commissioner. See 42 U.S.C. § 405(g). Such judicial review, however, “is limited to determining whether [the Commissioner] deployed 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)). The Commissioner's findings of fact are conclusive and must be upheld by the reviewing court when supported by substantial evidence “even if the record arguably could justify a different conclusion.” Whitzell v. Astrue, 792 F.Supp.2d 143, 148 (D. Mass. 2011) (quoting Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987)) (internal quotation marks omitted). 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). This standard applies to reviewing ALJ and AC decisions, as both qualify as the final decision of the Commissioner. See Menapace v. Colvin, 159 F.Supp.3d 126, 129-30 (D. Mass. 2016).

         B. Before the AC

         1. Medical History Presented to the AC

         When considering Black's application, the ALJ examined evidence about Black's medical history, including treatment records, assessments and diagnoses. R. 12-19. The AC relied on the materials before the ALJ.

         a. Affective Disorder and Anxiety Related Disorders

         Between January 2002 and September 2005, Black struggled to manage her anxiety. See R. 575-620. During this time, Black used various prescription drugs infrequently and inconsistently to treat her anxiety symptoms. See R. 575-620. Against the advice of her treating physician, Dr. Rajani Larocca, M.D. (“Dr. Larocca”), Black twice declined mental health referrals. R. 579-80. On June 10, 2005, Dr. Larocca prescribed Celexa and Lorazepam to Black. R. 498. Black also began therapy with Dr. Joseph Whitehorn, Ph.D. (“Dr. Whitehorn”) during the summer of 2005. See R. 491-495. On September 2, 2005, Dr. Larocca reported that Black was feeling “more like herself” and doing better on Celexa and Lorazepam. R. 488. Dr. Whitehorn referred Black to psychiatrist Dr. Stephen Kleinman, M.D. (“Dr. Kleinman”). R. 486. Black first met with Dr. Kleinman on September 27, 2005 and continued to see him after that time. R. 486. According to treatment records from Dr. Kleinman and Dr. Larocca, Black remained stable on Celexa and Lorazepam from at least September 2005 until June 2014. See R. 370-559. She also attended therapy for most of that time. See R. 409, 415, 421, 434, 441, 458, 470. During the relevant period, Black's positive response to medication remained consistent. See R. 415-25. Black met with Dr. Kleinman multiple times during the relevant period and received positive reports each time. R. 415, 417, 422, 425. On October 29, 2009, Black informed Dr. Kleinman that the medications were a “big help, ” R. 425, and on April 26, 2010, Dr. Kleinman assessed that Black had an “excellent response” to medication, R. 417. During an appointment on February 19, 2010, Dr. Larocca noted that Black was “doing better” on Celexa, Lorazepam and in counseling. R. 421.

         b. Osteoarthritis

         Black reports osteoarthritis in her knees and legs. R. 61. On February 19, 2010, Black reported that she experienced right knee pain on stairs. R. 420. Dr. Larocca assessed that Black had no tenderness and a full range of motion in the right knee. R. 420. X-rays conducted on this date indicated that Black's bone marginalization was “normal” except for minimal tricompartmental marginal osteophytes. R. 323, 535. On July 29, 2013, she was diagnosed with “minimal osteoarthritis” in both knees. R. 554. X-rays taken on September 26, 2013, showed only “minimal” degenerative changes compared to the July 2013 x-rays. R. 569. Dr. Arthur L. Boland, M.D. (“Dr. Boland”) assessed that there was no “significant arthritis” on this date and opined that the x-rays of same “look[ed] really quite benign.” R. 565.

         c. Foot Disorder

         Black's reported foot disorder consists of a bunion deformity and hammertoe. R. 13. Her treatment record from March 26, 2007 confirms “bilateral, left greater than right, bunions” and mild degenerative changes. R. 540. She considered surgery at this time, but did not schedule the procedure then. R. 302, 428. On September 8, 2009, Black followed up with podiatry regarding her bunion deformity. R. 428, 295. She scheduled surgery for September 29, 2009 to correct the bunion and lesser hammertoes on her left foot. R. 428, 295. Black, however, cancelled the surgery because she had just begun a new job and could not miss work. R. 428, 295. Black thought she would only miss two days of work when the recovery time would have been at least two months. R. 428, 295. Black underwent left foot bunion and hammertoe surgery on August 20, 2012. R. 276. On September 17, 2012, Dr. Larocca noted that Black was “recovering well.” R. 276. As of September 16, 2013, Black was considering revision surgery on her left foot because her “second toe [was] twisted and [was] overlapping the [third] toe.” R. 550, 567. According to Black, however, this condition was not painful. R. 550.

         d. Migraines/Embolization for Aneurysm

         Black has experienced migraines since childhood. R. 372. On June 25, 2012, she underwent a balloon assisted coil embolization for an aneurysm discovered during the workup for a complex migraine. R. 372. Three weeks following the operation, Black reported “feeling better than prior to her procedure, and denied headaches.” R. 372.

         e. Medical Source ...