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Ferreira v. Saul

United States District Court, D. Massachusetts

January 10, 2020

ANDREW SAUL, Commissioner of Social Security Administration, Defendant.



         I. Introduction

         Julie Ellen Ferreira ("Plaintiff") brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI"). Plaintiff applied for SSI on March 17, 2014, alleging a January 1, 2014 onset of disability (Administrative Record (“A.R.”) at 376) based on multiple sclerosis, fibromyalgia, migraines, headaches, and mitral valve prolapse (A.R. 402-03). On May 25, 2016, after hearing, the Administrative Law Judge ("ALJ") found that Plaintiff was not disabled and denied her application for SSI (A.R. at 221-39). On June 15, 2017, the Appeals Counsel vacated the hearing decision and remanded the case to the ALJ (A.R. 242-43). Following a second hearing, the ALJ again found that Plaintiff was not disabled (A.R. 12-35). This time, the Appeals Council denied review (A.R. 1-6) and the ALJ's decision became the final decision of the Commissioner, entitling Plaintiff to judicial review. See Smith v. Berryhill, 139 S.Ct. 1765, 1772 (2019).

         Plaintiff appeals the Commissioner's denial of her claim on the grounds that: (A) the ALJ's findings in the first and second decisions concerning the list of Plaintiff's severe impairments are inconsistent and this inconsistency was an error of law requiring remand for clarification; and (B) the ALJ erred by finding that Plaintiff's statements about the intensity, persistence, and limiting effects of her symptoms were not wholly consistent with the record and by not assessing additional limitations in her residual functional capacity (“RFC”) (Dkt. No. 15 at 7-17). Pending before this court are Plaintiff's Motion for Judgment on the Pleadings (Dkt. No. 14), and the Defendant's Motion to affirm the Commissioner's Decision (Dkt. No. 22). The parties have consented to this court's jurisdiction (Dkt. No. 13). See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the reasons stated below, the court will grant the Commissioner's motion and deny Plaintiff's motion.

         II. Legal Standards

         A. Standard for Entitlement to SSI

         To qualify for SSI, a claimant must demonstrate that she is disabled within the meaning of the Social Security Act.[1] A claimant is disabled for purposes of SSI if she "is unable 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 which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). A claimant is unable to engage in any substantial gainful activity when she is not only “unable to do [her] previous work, but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work.” 42 U.S.C. § 1382c(a)(3)(B). The Commissioner evaluates a claimant's impairment under a five-step sequential evaluation process set forth in the regulations promulgated by the Social Security Administration ("SSA"). See 20 C.F.R. § 416.920. The hearing officer must determine whether: (1) the claimant is engaged in substantial gainful activity; (2) the claimant suffers from a severe impairment; (3) the impairment meets or equals a listed impairment contained in Appendix 1 to the regulations; (4) the impairment prevents the claimant from performing previous relevant work; and (5) the impairment prevents the claimant from doing any work considering the claimant's age, education, and work experience. See id; see also Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982) (describing the five-step process). If the hearing officer determines at any step of the evaluation that the claimant is or is not disabled, the analysis does not continue to the next step. 20 C.F.R. § 416.920(a)(4).

         Before proceeding to steps four and five, the Commissioner must make an assessment of the claimant's RFC, which the Commissioner uses at step four to determine whether the claimant can do past relevant work and at step five to determine if the claimant can adjust to other work. See 416.920(e).

RFC is what an individual can still do despite his or her limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities

         Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *2 (July 2, 1996).

         The claimant has the burden of proof through step four of the analysis, including the burden to demonstrate RFC. Flaherty v. Astrue, Civil Action No. 11-11156-TSH, 2013 WL 4784419, at *8-9 (D. Mass. Sept. 5, 2013) (citing Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). At step five, the Commissioner has the burden of showing the existence of jobs in the national economy that the claimant can perform notwithstanding his or her restrictions and limitations. Goodermote, 690 F.2d at 7.

         B. Standard of Review

         The district court may enter a judgment affirming, modifying, or reversing the final decision of the Commissioner, with or without remanding for rehearing. See 42 U.S.C. § 405(g). Judicial review “is limited to determining whether the ALJ used the proper legal standards and found facts upon the proper quantum of evidence.” Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The court reviews questions of law de novo but must defer to the ALJ's findings of fact if they are supported by substantial evidence. Id. (citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam)). Substantial evidence exists “'if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the] conclusion.'” Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). “While ‘substantial evidence' is ‘more than a scintilla,' it certainly does not approach the preponderance-of-the-evidence standard normally found in civil cases.” Bath Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56 (1st Cir. 2003) (citing Sprague v. Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor, 688 F.2d 862, 865 (1st Cir. 1982)). In applying the substantial evidence standard, the court must be mindful that it is the province of the ALJ, and not the courts, to determine issues of credibility, resolve conflicts in the evidence, and draw conclusions from such evidence. See Irlanda Ortiz, 955 F.2d at 769. So long as the substantial evidence standard is met, the ALJ's factual findings are conclusive even if the record “arguably could support a different conclusion.” Id. at 770. That said, the ALJ may not ignore evidence, misapply the law, or judge matters entrusted to experts. Nguyen, 172 F.3d at 35.

         III. Factual Background.

         A. Plaintiff's Background

         Plaintiff was forty-six at the time of the hearing. She had graduated from high school, had an associate's degree, and had worked as a hairdresser and a veterinary technician. She lived with her three children, who ranged in age from twelve to eighteen (A.R. 40, 42). Her most recent employment was as an office manager at a veterinary hospital from June 2012 through May 2013 (A.R. 404). Her employment was terminated because she could not keep up with the requirements of her job (A.R. 403).

         B. Relevant Medical Records

         1. Records of Physical Impairments

         On May 19, 2009, Philip Hsu, M.D., examined Plaintiff and reviewed her medical records, in which there were abnormal MRIs, including an MRI performed in April 2009, and concluded that her reported symptoms and the MRIs were suggestive of multiple sclerosis (“MS”). Plaintiff's examination was normal. Dr. Hsu initiated treatment for MS (A.R. 744-45). Plaintiff was seen in follow-up on December 28, 2009 by physician's assistant John Wojcik, who noted that Plaintiff was being seen for relapsing/remitting MS and that she continued to do well and had not had any exacerbations. She was sleeping well and was quite active with her children. She was having frequent headaches for which Mr. Wojcik prescribed Amitriptyline (A.R. 744-45). On March 17, 2010, Plaintiff was seen again by Dr. Hsu, who noted that she reported no new neurologic issues, that her mood was fine, and that her headaches had responded to amitriptyline and were dramatically better. Her examination was completely normal (A.R. 741-42). Plaintiff was also seen by Mr. Wojcik on December 7, 2010 and February 18 and June 10, 2011. On February 18, 2011, Plaintiff reported that her husband had had a devastating injury that resulted in neurosurgery. She was beginning to feel financial stresses because her husband had been self-employed. Mr. Wojcik noted that from an MS point of view, Plaintiff was doing well. She had sensory symptoms but without any disability (A.R. 730). On June 10, 2010, Mr. Wojcik noted that, while Plaintiff had not had any acute exacerbations, she had ongoing sensory symptoms, complaints of intermittent numbness in the upper extremities, and pain in both legs that was somewhat problematic. Mr. Wojcik supported Plaintiff applying for social security disability “as this may get worse in the future” (A.R. 725).

         A brain MRI done on February 25, 2011 revealed multifocal T2 hyperintense lesions compatible with MS “seen throughout the supratentorial white matter with involvement of the corpus callosum.” The lesions were essentially unchanged from a prior scan in size and configuration with the exception of a minimum increase in one lesion (A.R. 725). A cervical scan showed two right-sided lesions at ¶ 3 and C5 that were unchanged from a prior scan (A.R. 578, 725).

         Plaintiff had a follow-up visit for relapsing/remitting MS with Mr. Wojcik on October 24, 2011. She reported she had not had any acute exacerbations and had been quite stable. She had a little bit of numbness in her left leg that came and went but had no problems with balance, bladder control, mood, or memory (A.R. 578). Her speech was clear and she walked with a normal gait. Mr. Wojcik assessed Plaintiff as “doing well clinically.” She reported that her husband had moved forward with divorce and she was at home with their three biological children. Mr. Wojcik suggested that, if possible, she should take a little time to rest during the day so she would have adequate energy when her children came home (A.R. 579).

         Plaintiff saw Dr. Hsu on February 29 and August 24, 2012. In February 2012, she reported that she had not had any new exacerbations and had no new neurologic complaints. She had not had any headaches. She continued to have some numbness in her leg (A.R. 562, 570). By August 2012, she had started a new job and had some increase in her headaches, for which Dr. Hsu prescribed Topamax at a low dose as a prophylaxis. On both dates, Plaintiff's examination was essentially normal. Dr. Hsu's impression was relapsing/remitting MS that appeared to be stable (A.R. 562).

         Plaintiff returned to Dr. Hsu on January 16, 2013. At this time, she reported that she had no “frank” exacerbations of MS but was experiencing some eye pain and increased difficulty finding words. She had some mild headaches for which she was taking over-the-counter medication rather than Topamax. Plaintiff's examination was, for the most part, normal. Dr. Hsu's impression was that she had relapsing/remitting MS with many vague symptoms that he suspected, but could not confirm, were MS-related (A.R. 554-55). Plaintiff was seen by Mr. Wojcik on January 10, 2014. She had not had any acute exacerbations of MS. She reported some blurring in her right eye, occasional word finding difficulty, and numbness in her face and hands. On this date, she elected treatment of her MS with Tecfidera (A.R. 540).

         Plaintiff had routine check-ups at Quabbin with nurse practitioner Rosario Nelson on January 14 and February 28, 2014 (A.R. 626, 631). She reported no acute MS exacerbations. Her on-going symptoms included some blurring and pain in her right eye, occasional difficulty finding words, numbness in her hands and face that waxed and waned but never went away, bladder urgency without incontinence, and balance problems. Her memory and mood were generally good, but she kept lists to avoid forgetting activities with her children (A.R. 631). On examination, she walked with a normal gait. A recent MRI brain scan showed no significant changes compared to a prior study from January 21, 2013 (A.R. 634).

         Plaintiff returned to see Mr. Wojcik on April 8, 2014. She reported that she had not had any acute exacerbations since her last visit. She had some blurring of her vision from time to time, and on-going numbness in her feet and hands, causing problems with picking up objects. She had no problem with balance or bladder control. Her mood was generally good, but she was sometimes overwhelmed in the role of a single parent since her divorce. She was having more headaches associated with nausea and rare vomiting (A.R. 531). On examination, Mr. Wojcik noted that she was alert, in good spirits, walked with a normal gait, and had no facial or other weakness. Mr. Wojcik noted that Plaintiff had been “relatively stable” with some worsening headaches for which he prescribed an increased dosage of Topamax (A.R. 532).

         Plaintiff was seen at Quabbin on June 24, 2014 for dysphagia (A.R. 617). Ms. Nelson's impression was that the condition was worsening (A.R. 617). On July 8, 2014, Plaintiff had an endoscopy (A.R. 604). No. abnormalities were found (A.R. 604-05). Thereafter, Plaintiff attended therapy. Her ability to swallow was improving by June or July of 2014, and she was discharged from therapy in or around September 2014 (A.R. 749-50, 752). At a September 8, 2014 visit with nurse practitioner Michelle Sheehan, however, Plaintiff reported that she still felt like she had a lump in her throat and that it felt like food got stuck. She had lost an additional six pounds (A.R. 647). On examination, she was noted to be very thin. She was alert and oriented with fluent language and normal comprehension (A.R. 649). ...

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