United States District Court, D. Massachusetts
MEMORANDUM OF OPINION AND ORDER
L. CABELL, U.S.M.J.
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.
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.
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).
Personal and Employment History
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.).
Relevant Medical Treatment
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).
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).
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).
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).
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.).
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
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).
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
August 17, 2015, Burger saw LMHC Morse. She noted that Burger
presented as preoccupied, depressed, impaired, and with
withdrawn interpersonal skills. (R. 423).
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).
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).
October 26, 2015, Burger reported to LMHC Morse that he was
discouraged over his inability to be productive. (R. 427).
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 ...