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Burger v. Berryhill

United States District Court, D. Massachusetts

March 31, 2019

ODED BURGER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting COMMISSIONER of the SOCIAL SECURITY ADMINISTRATION Defendant.

          MEMORANDUM OF OPINION AND ORDER

          DONALD L. CABELL, U.S.M.J.

         I. Introduction

         Oded Burger moves for an order reversing a decision by the Acting Commissioner of the Social Security (the Commissioner) denying his application for disability insurance benefits. (D. 16). The Commissioner cross moves for an order affirming her decision. (D. 26). The court has jurisdiction pursuant to 42 U.S.C. § 405(g), and the consent of the parties pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the plaintiff's motion is DENIED and the Commissioner's motion to affirm is GRANTED.

         II. Procedural History

         On June 29, 2015, the plaintiff applied for Social Security disability insurance benefits under Title XVI of the Social Security Act. (D. 21: Social Security Administration (SSA) Record of Social Security Proceedings, pgs. 181-84 [hereinafter (R.)]). Because Burger was only insured for disability benefits purposes through December 31, 2014, the success of his application depended on his being able to demonstrate that he was disabled as of that date. Burger alleged an earlier onset date of July 1, 2012, so the relevant time period for purposes of his application spanned from July 1, 2012 to December 31, 2014. (R. 181-84). Burger alleged that he was unable to work due to depression, memory loss, fatigue, sadness and despair.

         The SSA denied Burger's application twice, once on September 2, 2015, and again following his request for reconsideration, on December 8, 2015. (R. 83-88, 90-97). On May 18, 2017, an ALJ determined following an administrative hearing that Burger was not disabled. (R. 21-33). On September 13, 2017, the Appeals Council denied the plaintiff's request for review of the ALJ'S decision, making it the final decision of the Commissioner. (R. 1-7). The plaintiff then initiated this action on November 27, 2017. (D. 1).

         III. Facts

         A. Personal and Employment History

         Burger was born on December 15, 1954. (R. 305). He graduated from college in 1977. (Id.). He operated his own publishing business from 1989 to 2009, until he lost it due to the advent of the internet and its easy access to information. (R. 305, 439). In 2009, he completed a phlebotomy training course. (R. 305). Since then, Burger has worked, with varying degrees of success, in other capacities including in publishing, as a salesman, a lifeguard, a photography teacher, and an interpreter. (Id.).

         B. Relevant Medical Treatment

         In 2009, Burger attended marriage counseling with his wife. He reported that his appetite was good and that he swam daily to stay in shape, which helped him physically and emotionally. He denied problems with attention and concentration and showed no evidence of a thought disorder. He also reported that his hobbies included art, photography, classical concerts, travel, and watching movies. (R. 438-39).

         Burger reported that after his wife got sick, he became her caretaker and took over all household chores. (R. 438). A February 2013 preventative medicine visit noted a depressed mood and marked diminished interest. (R. 573).

         On March 17, 2014, Dr. Rachel Haims, Burger's primary care physician, noted after an appointment that he displayed normal judgment and insight with full affect and appropriate mood. (R. 346).

         On March 13, 2015, Burger saw Dr. Jonathan Smith for pain in his elbow. He presented as alert and oriented and reported also that he was swimming regularly. (R. 355-56).

         On April 6, 2015, Burger saw Licensed Mental Health Counselor (LMHC) Nancy Morse for treatment of symptoms of depression. (R. 585). He presented with a history of long-term untreated symptoms of depression including sleep disturbances, repetitive negative thoughts, and the inability to obtain or maintain employment. (Id.). The treatment plan included cognitive behavioral therapy and interpersonal skill building every two weeks. (Id.).

         On June 16, 2015, Burger saw Dr. Haims. She reported that Burger displayed normal judgment and insight with a depressed affect and appropriate mood. (R. 357-358). Burger was started on fluoxetine. (Id.).

         At a follow up appointment in July 2015, Burger reported that he had stopped taking his medication because it made him tense and because he still felt depressed. (R. 359). He stated that he had trouble concentrating, attending to tasks, and working but denied difficulty sleeping, and had normal speech, gait, and movements. (R. 359-361). He also displayed normal judgment and insight with full affect and appropriate mood. (Id.). He was prescribed Wellbutrin to address his depression. (R. 361).

         On August 10, 2015, LMHC Morse completed a psychiatric disorder form on Burger's behalf. (R. 364-66). She prognosed that he had major depressive disorder with the first signs and symptoms appearing at least two years in the past. (R. 364). Burger reported feelings of worthlessness, an inability to concentrate, and an inability to complete daily chores due to forgetfulness. (Id.).

         On August 17, 2015, Burger saw LMHC Morse. She noted that Burger presented as preoccupied, depressed, impaired, and with withdrawn interpersonal skills. (R. 423).

         On September 14, 2015, Burger met with LMHC Morse again. He appeared with no apparent distress, with normal speech, gait, and movement, and displayed normal judgment and insight. (R. 420). Morse's notes reflected that Burger left his house most days for at least 30 minutes and was speaking more to his adult children. (R. 424). She noted a slight improvement in his depression, although he subsequently in late September felt overwhelmed by his spouse's health issues. (R. 425).

         On October 12, 2015, LMHC Morse met with Burger and noted that he appeared depressed and preoccupied but was still able to help his spouse with the household. (R. 426).

         On October 26, 2015, Burger reported to LMHC Morse that he was discouraged over his inability to be productive. (R. 427).

         On November 9, 2015, Burger reported that he was still struggling to complete daily activities. (R. 428). His affect was lower than usual and his new ...


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