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LaFave v. Saul

United States District Court, D. Massachusetts

September 30, 2019

JUDITH LAFAVE, Plaintiff,
v.
ANDREW SAUL, [1]Commissioner, Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          DAVID H. HENNESSY UNITED STATES MAGISTRATE JUDGE

         The 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. (Docket #15).

         By 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.

         For the 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) be ALLOWED.

         I. BACKGROUND

         A. Procedural History

         LaFave 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).

         At the 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).

         On July 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.).

         The matter was re-assigned to ALJ Addison C.S. Masengill who held a hearing on July 12, 2016.[2] (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).

         B. Personal History

         At the 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).

         C. Medical History

         On 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.).

         In a 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.” (Id.).

         On 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).

         On July 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).

         LaFave 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 ‘disabled.'” (Id.).

         On 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.[3] (Id.).

         On 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).

         LaFave 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).

         At a 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. (Id.).

         On May 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).

         LaFave 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).

         On 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. ...


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