United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION
H. HENNESSY UNITED STATES MAGISTRATE JUDGE
Plaintiff, Judith LaFave, proceeding pro se, seeks reversal
of the decision by the Defendant, the Commissioner of the
Social Security Administration (“the
Commissioner”), denying her Supplemental Security
Income (“SSI”), or, in the alternative, remand to
the Administrative Law Judge (“ALJ”). (Docket
#14). The Commissioner seeks an order affirming his decision.
Order of Reference dated April 3, 2019, pursuant to 28 U.S.C.
§ 636(b)(1)(B) (Docket #18), this matter was referred to
me for a Report and Recommendation on these two motions which
are now ripe for adjudication.
reasons that follow, I RECOMMEND that LaFave's Motion to
Reverse (Docket #14) be DENIED and Defendant's Motion for
Order Affirming the Decision of the Commissioner (Docket #15)
filed an application for SSI on February 8, 2011, alleging
that s he had been disabled since January 1, 2011. (Tr. 244).
The application was denied initially and on reconsideration.
(Tr. 165-67, 170-72).
conclusion of a hearing on December 15, 2013, ALJ Leonard J.
Cooperman made an oral pronouncement awarding benefits to
LaFave. (Tr. 513-57). On January 10, 2014, ALJ Cooperman
withdrew, by letter, his oral award of benefits based on his
realization that he had failed to take into account the
substantial lack of written medical evidence that would
support LaFave's claim. (Tr. 485-86). A subsequent
hearing before ALJ Cooperman was held on January 27, 2014.
(Tr. 483-512). At the end of the hearing, ALJ Cooperman
stated that he would leave the record open for six months to
allow LaFave to submit additional evidence. (Tr. 511).
2, 2014, ALJ Cooperman issued an unfavorable decision,
finding that LaFave had not been under a disability since
January 24, 2011 through the date of decision. (Tr. 47-57).
LaFave filed a request for review of the decision on August
7, 2014. (Tr. 61-64). The Appeals Council granted
LaFave's request for administrative review, and, on
October 23, 2015, it vacated the hearing decision and
remanded the case for further proceedings. (Tr. 58-60). The
Appeals Council found that ALJ Cooperman did not provide a
rationale for the assessed residual functional capacity
(“RFC”) limitations, and that ALJ Cooperman was
not entitled to rely on the vocational expert's
(“VE”) testimony at step five. (Id.).
matter was re-assigned to ALJ Addison C.S. Masengill who held
a hearing on July 12, 2016. (Tr. 454-82). LaFave rejected the
ALJ's offer to postpone the hearing so that she could
obtain legal counsel, and signed a waiver of representation.
(Tr. 93, 458-60). LaFave also rejected the ALJ's offer to
keep the record open for twenty-one days following the
hearing to submit additional documents, stating that there
were no additional documents. (Tr. 462). On September 28,
2016, the ALJ issued a decision finding that LaFave had not
been disabled from January 24. 2011 through the date of the
decision. (Tr. 28-46). On March 8, 2018, the Appeals Council
denied LaFave's request for administrative review, making
the ALJ's decision final and ripe for judicial review.
(Tr. 19-22). Having timely pursued and exhausted her
administrative remedies before the Commissioner, LaFave filed
a complaint in the Leominster Division of the District Court
Department of the Commonwealth of Massachusetts on April 9,
2018. (Docket #1-3). The Commissioner removed the case to
this court on May 2, 2018. (Docket #1). LaFave filed the
motion for reversal on August 14, 2018, (Docket #14), and the
Commissioner filed a cross-motion on September 25, 2018,
(Docket #15). On October 17, 2018, LaFave filed a reply to
the Commissioner's motion. (Docket #17).
time of her SSI application, LaFave was 53 years old. (Tr.
244). LaFave completed twelfth grade at a vocational school
where she trained for nursing. (Tr. 463). She does not
possess a driver's license. (Tr. 100). LaFave is married
and lives in an apartment with her husband. (Tr. 95). LaFave
previously worked as a certified nursing assistant in a
nursing home, a painter in craft manufacturing, and in sales
for an antique dealer, but does not have any past relevant
work performed within fifteen years of the ALJ's
decision. (Tr. 45, 264). LaFave reports that she has not
worked since 1997 as her second husband required her to stay
home. (Tr. 106).
August 17, 2010, LaFave began a treatment relationship with
Stephen Child, M.D. (Tr. 401). LaFave stated that she had
experienced bizarre intermittent neurological symptoms over
the preceding four-and-a-half years, explaining that a
“flareup” can cause stuttering and difficulty
speaking and left arm and leg immobility that prevents her
from walking or working. (Id.). LaFave indicated
that it had “been difficult . . . to be certified as
disabled which is her current aspiration.”
(Id.). Dr. Child noted that LaFave has an anxiety
disorder which was controlled with Ativan though she declined
SSRI use, and that she also suffered from hypertension.
(Id.). Physical examination revealed strong shoulder
shrug, supple neck, and extremities with symmetrical pulses
and no edema. (Id.). Dr. Child stated that
LaFave's “neurological disorder likely has a large
functional component. Moreover she has a known anxiety
disorder and I again encouraged her to try an SSRI. She
prefers to stick with Ativan. She is also hoping to find a
more sympathetic neurologist.” (Id.).
letter dated January 7, 2011 to Dr. Child, Joshua D. Katz,
M.D., noted that he evaluated LaFave for possible multiple
sclerosis. (Tr. 419). LaFave related to Dr. Katz that she had
begun having intermittent complex neurological spells in
2005. (Id.). The spells consisted of stuttering,
generalized muscle aching and heaviness of her arms and legs
along with left arm and leg numbness, weakness, sometimes
progressing to her being almost completely incapacitated and
unable to speak for up to several hours. (Id.). In
between the spells, LaFave reported “intermittent hand
numbness, clumsiness, frequently dropping things, thermal
sensitivity, intermittent facial pain, intermittent visual
blurring, sensitivity to bright light, imbalance, neck pain,
cracking in her neck, and involuntary swallowing.”
(Id.). On physical examination, Dr. Katz found
LaFave “awake and alert with normal language, memory,
and attention.” (Id.). LaFave had full muscle
strength in the upper and lower extremities, normal muscle
bulk and tone, normal sensation to pinprick, vibration, light
touch, and position, normal gait and tandem gait, and normal
fine motor movements in both hands. (Tr. 419-20). Dr. Katz
observed that, with finger-to-nose testing, LaFave
“hesitated and seemed to use more effort with her left
hand just before touching the target but there was no
dysmetria or tremor.” (Tr. 420). Dr. Katz stated that
“her spells are peculiar and don't fit well for
seizures, strokes, or migraine.” (Id.). Dr.
Katz explained to LaFave that he “was not able to think
of any other diagnostic tests that were likely to  lead to
a diagnosis” and did not recommend any specific
treatment for the time being due to her history of medication
sensitivity. (Id.). Dr. Katz noted that LaFave
“was quite focused on the fact that without a diagnosis
she would not be able to qualify for disability.”
(Id.). Dr. Katz noted that, despite having a normal
neurological exam, LaFave told him “she could literally
not pick up a book from my shelf without having a spell and
having to go to the emergency room.” (Id.).
Dr. Katz stated he did “not have any explanation for
the discrepancy between her perceived disability and her
normal performance on neurological testing, ” but that
it was “suggestive of a functional disorder.”
March 19, 2011, Dr. Child stated that LaFave had
long-standing complaints of intermittent weakness. (Tr. 422).
Dr. Child noted that LaFave had seen at least five
neurologists and had undergone numerous scans that ruled out
multiple sclerosis. (Id.). Dr. Child observed that
LaFave did not use a handheld assistive device and assessed
that she could walk independently without an assistive
device. (Tr. 421). Dr. Child stated he believed LaFave was
“functional.” (Tr. 422).
31, 2011, LaFave presented to the emergency room complaining
of the sudden onset of an inability to speak. (Tr. 364).
LaFave denied experiencing joint pain, head trauma, headache,
or the presence of significant stressors. (Tr. 364-65). On
examination, LaFave was awake and alert and answered
questions appropriately, but was slow to answer, very quiet,
and had slow speech. (Tr. 365). LaFave was able to slowly
move all four extremities, her strength was “apparently
equal, ” and she had no abnormal sensory or
neurological findings. (Tr. 366). She was assessed with a
transient ischemic attack (“TIA”) or
“mini-stroke” and told to take one aspirin daily
and follow-up in one to two days. (Tr. 367).
followed up with Dr. Child on August 8, 2011. (Tr. 396).
LaFave related her symptoms at the emergency department but
reported that “[s]he feels well now” and denied
any symptoms. (Id.). Dr. Child noted that LaFave
“has had some version of these symptoms for many years
and has been evaluated by at least 3 neurologists. MRI scans
and EEGs chemistries have all been normal.”
(Id.). Dr. Child wrote, “[a]s in the past, her
main focus is to find a [diagnosis] that would justify being
August 30, 2011, state agency psychiatrist Dr. Garvin
examined LaFave. (Tr. 426-27). LaFave attended with her
husband but said “she could have come here alone
today.” (Tr. 426). She indicated that she cannot talk
when she had an anxiety attack and experienced an elevated
heartbeat at such times. (Id.). She reported that
she was no longer depressed and denied having any of the
classic symptoms of depression. (Id.). On
examination, LaFave was fully oriented with good
concentration, normal auditory memory, intact short-term
auditory memory, low average to average intelligence, and no
hallucinations or delusions. (Tr. 427). Dr. Garvin assigned
LaFave a Global Assessment of Functioning (“GAF”)
score of 45. (Id.).
October 7, 2011, LaFave presented at the emergency room
complaining of chest and eye pain. (Tr. 375). On examination,
LaFave was awake and cooperative with no tenderness or spasm
in her back, no joint effusion or cyanosis, and grossly
intact motor functions. (Tr. 376-77).
saw Stephanie Child, RN, on October 24, 2011 for her annual
physical examination. (Tr. 394-96). Nurse Child observed that
LaFave was in no distress and had symmetrical pulses and no
edema in her extremities. (Tr. 395).
follow-up with Dr. Child on January 30, 2012 for
hypertension, LaFave reported that “[o]verall, she
feels well [and] [s]he is not having any more of her
‘spells.'” (Tr. 393). LaFave was in no
distress and had a normal physical examination.
8, 2012, LaFave had a follow-up with Dr. Child for
hypertension. (Tr. 392-93). Dr. Child observed that LaFave
was in no distress and had symmetrical pulses and no edema in
her extremities. (Tr. 392).
presented to the emergency room on May 10, 2012 complaining
of abdominal pain. (Tr. 381). She denied back pain,
dizziness, or headaches. (Id.). On examination,
LaFave was alert and cooperative with no tenderness with
palpitation or deformity in her back, a supple and nontender
neck, no edema or calf tenderness, and grossly intact sensory
and motor functions. (Tr. 382).
August 21, 2012, LaFave saw Dr. Child for a follow-up
appointment related to her hypertension. (Tr. 391). During
the visit, LaFave reported that she was “frustrated at
her inability to be deemed disabled and receive SSI
payments” and she blamed Dr. Child, telling him that he
“filled out the forms incorrectly.”
(Id.). Dr. Child noted that LaFave “has not
had any more ‘spells' since she was made to
understand [by Dr. Katz] that these are
non-physiologic.” (Id.). On examination,
LaFave was not in any distress, and her pulses were
symmetrical with no evidence of edema. (Id.). Dr.
Child assessed benign hypertension and conversion disorder.
(Tr. 391-92). Dr. ...