United States District Court, D. Massachusetts
MARY T. BLACK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
J. Casper United States District Judge.
Mary T. Black (“Black”) filed a claim for
disability insurance benefits (“SSDI”) with the
Social Security Administration on March 11, 2013. R.
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
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.
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.
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.
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.
Entitlement to SSDI
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).
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
Standard of Review
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).
Before the AC
Medical History Presented to the AC
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.
Affective Disorder and Anxiety Related Disorders
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.
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.
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.
Migraines/Embolization for Aneurysm
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.
Medical Source ...