KELLEY, U.S.M.J.
Plaintiff Lucia F. Botelho seeks reversal of the decision of Defendant Carolyn Colvin, Acting Commissioner of the Social Security Administration ("SSA"), denying her Disability Insurance Benefits ("DIB"). (#10.) Defendant moves for an Order affirming the Commissioner's decision. (#13.) With the administrative record having been filed and the issues fully briefed (##7, 11, 12), the cross motions stand ready for decision.
Plaintiff applied for DIB on February 29, 2012. (TR at 315-316.)
Plaintiff's relevant medical history begins on August 1, 2008, when she was hospitalized following one month of symptoms including daily fevers of up to 103 degrees, chills, drenching sweats, weakness, vomiting, headaches, decreasing appetite, a rash, and weight loss. (TR at 385, 392.) She was tentatively diagnosed with systemic lupus erythematosus ("SLE") before being discharged on August 5, 2008. (TR at 373-388.)
On December 4, 2008, Plaintiff was seen by Bonnie Lee Bermas, M.D. "in consultation for possible diagnosis of systemic lupus erythematosus." (TR at 493.) On this date Dr. Bermas noted that Plaintiff had "diffuse alopecia;" she had no skin rashes or lymphadenopathy; her lungs were clear; her hands appeared normal and had good grip strength; her fingers, elbows, shoulders, and wrists had a good range of motion; her ankles were "fine;" and her muscle strength was "5/5." (Id.) Plaintiff was taking CellCept, prednisone, hydroxychloroquine, and hydrochlorothiazide. (Id.) Lab testing showed her kidney function was "slightly better" than it had been in the hospital. (TR at 480.)
On January 29, 2009, Dr. Bermas saw Plaintiff for headache, sinus infection, and bloating. (TR at 492.) Dr. Bermas wrote: "Skin is without rashes. No lymphadenopathy. Lungs are clear. Cardiac exam is normal. Abdomen is benign. Examination of her joints reveals normal-appearing hands, good grip strength, normal DIPs, PIPs, MCPs, wrists, elbows, shoulders, hips, knees and ankles within normal limits."
On March 12, 2009, Dr. Bermas saw Plaintiff for "followup of her lupus." (TR at 482.) Plaintiff was "noticing more and more joint pain," had continuing headaches, swollen and painful hands, and wore an ankle brace. (Id.) Plaintiff was taking CellCept, clobetasol, fioricet, hydrochlorothiazide, hydroxychloroquine, and prednisone. (Id.) Despite these increased symptoms, Dr. Bermas again noted "Lupus is stable," and wrote that "Examination of her joints reveals normal-appearing hands, good grip strength, normal DIPs, PIPs, MCPs ... and ankles within normal limits." (Id.) She deferred adjusting Plaintiff's medication until after her appointment with a renal specialist. (Id.)
On May 21, 2009, Dr. Bermas saw Plaintiff for "followup of her lupus." (TR at 482.) Dr. Bermas again noted "Lupus is stable," and mentioned that Plaintiff's right ankle had "some decreased" range of motion.
On August 24, 2009, Dr. Bermas saw Plaintiff for mouth sores, headaches, and slurred speech. (TR at 479.) Dr. Bermas again noted "Lupus is stable." (Id.) Labs showed "the kidney function tests are better." (TR at 477.)
On November 19, 2009, Dr. Bermas saw Plaintiff for swollen hands, arm stiffness, diarrhea, occasional mouth sores and chest pain, headaches, and tiredness. (TR at 476.) Dr. Bermas again noted "Lupus is stable." (Id.) Labs showed increased protein in Plaintiff's urine. (TR at 474.)
On February 4, 2010, Plaintiff had breast reduction surgery due to back and neck pain. (TR at 440-441, 472, 495.) She "tolerated the procedure without difficulty" and had an "uneventful" postoperative period. (TR at 441.) On February 10, March 17, and July 7, 2010, Plaintiff was seen for follow-up by Bohdan Pomahac, M.D., who noted that she had "nicely healed" from the procedure. (TR at 469-471.)
On March 21, 2011, Dr. Bermas saw Plaintiff for weight loss and feeling "worse" after having been unable to afford her medication for four months. (TR at 464.) Dr. Bermas again noted "Lupus is stable." (Id.) Labs showed protein in her urine, and Dr. Bermas prescribed CellCept, hydroxychloroquine, and lisinopril. (TR at 463-64.)
On November 10, 2011, Dr. Bermas saw Plaintiff for lupus symptoms including hair loss, "rare mouth sores," and joint pain. (TR at 461.) Dr. Bermas again noted "Lupus is stable." (Id.) Labs showed protein in Plaintiff's urine, and Dr. Bermas prescribed lisinopril. (TR at 458.)
On March 1, 2012, Dr. Bermas saw Plaintiff for lupus symptoms including "a lot of pain ... stiffness, she feels as if her nerve [endings] are bothering her. Right thumb is stiff. No fluid retention. Some headaches, minimal skin lesions, no chest pain." (TR at 455.) Dr. Bermas again noted "Lupus is stable," and wrote that Plaintiff's hands were "normal." (Id.) Labs on this date revealed that Plaintiff "still [had] a little bit of protein" in her urine. (TR at 454.)
On June 28, 2012, Dr. Bermas saw Plaintiff for syncopal episodes, occasional sun rashes and open sores, joint pain, difficulty with daily activities, weight gain, and insomnia. (TR at 513.) Despite noting rashes and open sores, Dr. Bermas repeated the same text that appears in every record, "Skin is without rashes." (Id.) Dr.
On January 10, 2013, Dr. Bermas saw Plaintiff for rashes on her arms, legs, and head; hair loss; pain with numbness in her neck and right arm; low energy and insomnia; persistent headaches that Motrin and Tylenol did not help; depression; stomach pain and heartburn; and forgetfulness. (TR at 525.) Again, despite mentioning Plaintiff's rashes, Dr. Bermas reported, "Skin is without rashes." (Id.) Labs on this date revealed "a bit more protein" in Plaintiff's urine, and Dr. Bermas referred her to a renal specialist. (TR at 524.) For the first time, instead of deeming the lupus "stable," Dr. Bermas stated: "Patient is more symptomatic — unclear if this is sle refractory to therapy or this is depression." (Id.) Dr. Bermas referred her to Jean Pegg, LMHC, for mental health. (TR at 580-582.)
On April 18, 2012, Michelle D. Holmes, M.D., an advising physician to the Disability Determination Service, found Plaintiff not disabled on initial consideration. (TR at 219, 221.) Dr. Holmes determined that Plaintiff could "lift up to 20 pounds occasionally and 10 pounds frequently, sit for six hours, and stand or walk for six hours in an eight-hour workday."
On June 14, 2012, Plaintiff had a consultative examination with Richard Vinacco Jr., Psy.D. (TR at 500-504.) In this exam, she "denied difficulty showering, dressing, or grooming herself." (TR at 501.) She said she could stand for 15 minutes, walk for 30 minutes, and sit, bend, and lift 20 pounds. (TR at 501.) She could prepare cold meals, cook, and use the stove. (TR at 501.) She lost focus while driving, but sometimes drove herself. (Id.) She could plan budgets, maintain checkbooks, and pay bills on time. (Id.)
On September 27, 2012, John Benanti, M.D., an advising physician to the Disability Determination Service, reviewed updated information about Plaintiff's health on reconsideration. Like Dr. Holmes, Dr. Benanti determined that she could "lift up to 20 pounds occasionally and 10 pounds frequently, sit for six hours, and stand or walk for six hours in an eight-hour workday." (TR at 30, 228.) Dr. Benanti also recommended that Plaintiff "avoid concentrated exposure to humidity." (TR at 229.)
On February 4, 2013, Dr. Bermas completed a "Multiple Impairment Questionnaire" for Plaintiff. (TR at 556-563.) This questionnaire was only partially completed, but indicated that Plaintiff's primary symptoms were fatigue, daily joint pain, and swelling. (TR at 557.) Dr. Bermas indicated that Plaintiff would need daily unscheduled breaks of 15 minutes, and would need to be absent from work more than three times per month. (TR at 561-562.)
On September 27, 2013, Dr. Bermas completed a "Lupus (Systemic Lupus Erythematosus) Impairment Questionnaire" for Plaintiff. (TR at 572-578.) On it, Dr. Bermas noted that her primary symptoms
According to her testimony at the administrative hearing, Plaintiff was born in 1977 and was 36 years old on the hearing date. (TR at 44.) She earned an associate's degree in early childhood development, and worked as a teaching assistant from 1999-2003, a fitness consultant from 2003-2008, and a parent-child advocate from 2008-2010.
Plaintiff reported her daily activities consisted of spending most of the day lying down and resting. (TR at 61.) Her use of her fingers and hands was limited, affecting her ability to do household chores such as laundry, cooking, dishes, and folding clothes; to drive a car; and to hold a pencil. (TR at 58, 62.) She reported difficulty with opening bottles and jars, opening doors, and lifting items. (TR at 62.) Sitting at the computer and focusing on the screen gave her a headache, and typing was difficult. (TR at 63.) She reported difficulty with sitting still, standing, or walking for long periods of time. (TR at 64.) She had to stop and rest on the stairs in her home because of balance issues and pain in her knees and back. (TR at 65.) She drove "not often anymore." (Id.) She went days at a time without being able to shower. (TR at 66.) Her depression caused her to "become a hermit," and "sit home and do nothing." (TR at 66.) She had crying spells, difficulty controlling her emotions, difficulty staying focused and concentrating especially when helping her children with their homework. (TR at 67.) Because of her forgetfulness, she needed to write lists "for everything."
The vocational expert
On May 6, 2012, Plaintiff filled out a "Function Report — Adult" detailing her daily activities and limitations. (TR at 332-339.) Plaintiff, a single mom, said she "do[es] everything for" her children. (TR at 333.) In the morning, she got her kids ready for school; rested until noon, when she did housework; at night, she prepared dinner and helped her children with homework, bathing, and getting to bed. (TR at 332.) She also cared for her pets, giving them food and water, letting the dog out, and changing litter and cage bedding. (TR at 333.) On bad days, she was unable to get dressed; on good days, she "tend[ed] to dress down due to pain." (Id.) She noted that it was difficult to brush her teeth, clip her toenails, or put on makeup. (Id.) Plaintiff reported preparing food daily, although she "tend[ed] to lean more to fast food or frozen." (TR at 334.) She did housework including light cleaning, laundry, and loading the dishwasher. (TR at 334.) Plaintiff was able to drive, although she did not like to go alone; she shopped weekly or biweekly for food, household items, clothes, and toiletries; and she handled her own bank accounts and finances, although she reported having to double or triple check her work. (TR at 335-336.) She regularly went to sporting or school events for her children, and attended church. (TR at 336.) She could walk 10-20 feet before needing to stop and rest. (TR at 337.)
Title 42 U.S.C. § 405(g) provides, in relevant part:
The court's role in reviewing a decision of the Commissioner under this statute is circumscribed:
Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir.1996); see Reyes Robles v. Finch, 409 F.2d 84, 86 (1st Cir.1969) (holding that "as to the scope of court review, `substantial evidence' is a stringent limitation").
The Supreme Court has defined "substantial evidence" to mean "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); and see Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.1991). It has been explained that:
Lizotte v. Sec'y of Health & Human Servs., 654 F.2d 127, 128 (1st Cir.1981) (quoting Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). In other words, if supported by substantial evidence, the Commissioner's decision must be upheld even if the evidence could also arguably admit to a different interpretation and result. See Ward v. Commissioner of Soc. Sec., 211 F.3d 652, 655 (1st Cir.2000); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.1999) (per curiam).
Finally, it has been noted that:
Musto v. Halter, 135 F.Supp.2d 220, 225 (D.Mass.2001).
In order to qualify for DIB, a claimant must prove that 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 12 months." 42 U.S.C. § 423(d)(1)(A). Here, in determining Botelho's eligibility for benefits, the ALJ conducted the familiar five-step evaluation process to determine whether an adult is disabled. See 20 C.F.R. § 404.1520(a); Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir.1982); Veiga v. Colvin, 5 F.Supp.3d 169, 175 (D.Mass.2014). In conducting this test, the ALJ concluded that 1) Plaintiff had not engaged in substantial gainful activity since December 16, 2010; 2) Plaintiff had severe impairments of systemic lupus erythematosus, depression, and anxiety; 3) Plaintiff did not have an impairment or combination of impairments that met or medically equaled those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; 4) Plaintiff retained the residual functional capacity to: understand and remember simple instructions, concentrate on simple tasks for two-hour periods in an eight-hour day, interact appropriately with coworkers and supervisors, and adapt to changes in the work setting, although she needed to avoid concentrated exposure to humidity; 5) Plaintiff was unable to perform any past relevant work, but could perform jobs that existed in significant numbers in the national economy; and 6) Plaintiff was not under a disability from December 16, 2010, through December 23, 2013. (TR at 25-34.)
Plaintiff argues that the ALJ improperly weighed the medical evidence because he credited the opinions of the non-examining state consultants over the opinion of Dr. Bermas, Plaintiff's treating rheumatologist. Plaintiff believes that Dr. Bermas' opinion should have been given controlling weight. She argues that the consulting physicians did not have access to Dr. Bermas' opinions or the medical records from late 2012 and early 2013.
Plaintiff is correct that opinions of treating physicians usually receive more weight, because they "are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." King v. Colvin, No. 14-10380, 128 F.Supp.3d 421, 436, 2015 WL 5315189, *11 (D.Mass. Sept. 11, 2013) (citing 20 C.F.R. § 416.927(c)(2)) (internal quotation marks omitted). However, the ALJ may "downplay the weight afforded a treating physician's assessment of the nature and severity of an impairment where ... it is internally inconsistent or inconsistent with other evidence in the record including treatment notes and evaluations by examining and nonexamining physicians." Viveiros v. Astrue, No. 10-11405, 2012 WL 603578, at *6 (D.Mass. Feb. 23, 2012) (quoting Arruda v. Barnhart, 314 F.Supp.2d 52, 72 (D.Mass.2004), and citing 20 C.F.R. § 404.1527(d)(2)-(4)). If the ALJ does not give controlling weight to a treating source opinion,
Bourinot v. Colvin, 95 F.Supp.3d 161, 175 (D.Mass.2015); and see Conte v. McMahon, 472 F.Supp.2d 39, 48 (D.Mass.2007), and Walker v. Barnhart, No. 04-11752, 2005 WL 2323169, at *18 (D.Mass. Aug. 23, 2005) (The ALJ must "accept[ ] or explicitly discredit[ ] ... the record evidence from [the claimant] and her treating physician"). Finally, this Court must uphold the ALJ's decision as long as a "reasonable mind, reviewing the record as a whole, could accept it as adequate to support his conclusion." Monroe v. Barnhart, 471 F.Supp.2d 203, 211-12 (D.Mass.2007) (quoting Lizotte, 654 F.2d at 128 (internal citations omitted)).
Here, the ALJ gave "less weight" to Dr. Bermas' opinion for two reasons: first, because her "assessments are inconsistent with the objective medical evidence of record reporting stability in [claimant's] symptoms" and second, because her "assessment is inconsistent with the claimant's reported activities of daily living, which include childcare, cooking, cleaning, shopping, reading, and attend[ing] appointments as necessary."
From the evidence of record, Dr. Bermas' opinion appears both internally inconsistent and in conflict with the reviewing physicians' opinions. Examples of internal inconsistencies in Dr. Bermas' records include her repeated notations that "lupus is stable," "skin is without rashes," and joints "normal" despite Plaintiff's complaints of changing symptoms, rashes, and joint pain and stiffness. (TR at 461, 464, 455, 476, 482, 489, 513, 525.) There were no indications in the record that Dr. Bermas disbelieved Plaintiff's reports; Dr. Bermas indicated Plaintiff was not a malingerer. (TR at 561, 576.) In Dr. Bermas' lupus opinion questionnaire, she inexplicably indicated that Plaintiff could lift a maximum of 5 pounds, but could carry a maximum of 10 pounds.
In weighing this evidence, the ALJ offered no specific examples from the record demonstrating the purported inconsistency, in contrast with Bourinot, 95 F.Supp.3d at 177 ("The ALJ provided specific reasons, supported by evidence in the case record, for his decision to discount each of [three doctors' opinions] ... The reasoning is sufficiently specific to inform
The Court is generally unable to affirm administrative action on grounds not set forth by the agency itself; however, there is an exception to this rule when "it is clear what the agency's decision must be." Polanco-Quiñones v. Astrue, 477 Fed. Appx. 745, 746 (1st Cir.2012) (citing MaineGeneral Med. Ctr. v. Shalala, 205 F.3d 493, 501 (1st Cir.2000)). Where, as here, ample record evidence supports the ALJ's decision, the court may affirm it even where the ALJ's explanation is sparse. Shaw v. Sec'y of Health & Human Servs., No. 93-2173, 1994 WL 251000, at *2, *5 (1st Cir. June 9, 1994) ("[W]e see no reason to return this case for the purely formulaic purpose of having the ALJ write out what seems plain on a review of the record"); Montalvo-Velez v. Colvin, No. 13-1827, 2015 WL 736351, at *4 (D.P.R. Feb. 20, 2015) (affirming where "the ALJ implicitly marshaled sufficient reasons for not giving [the treating physician's] opinion controlling weight"). Because Dr. Bermas' records are internally inconsistent and in conflict with the consulting physicians' opinions, it is clear that the ALJ's decision to afford those records less weight is supported by substantial evidence.
Plaintiff argues that the ALJ erred in evaluating her credibility regarding the symptoms she experienced. She objects to his determination that her testimony was not entirely credible because she had not had surgery and the medical records reported her condition as "stable." (#11 at 12-13.) Further, Plaintiff argues that the ALJ "put a significant gloss on ... her activities of daily living." (#11 at 9.)
"[T]he ALJ was not required to credit [the claimant's] testimony." Del Rosario v. Colvin, No. 13-30017, 2014 WL 1338153, at *7 (D.Mass. Mar. 31, 2014) (citing Bianchi v. Sec'y of Health and Human Servs., 764 F.2d 44, 45 (1st Cir.1985) (recognizing the established principle that the ALJ "is not required to take the claimant's assertions of pain at face value.")); Tozier v. Astrue, No. 12-10359, 2013 WL 1282371, at *4 (D.Mass. Mar. 28, 2013); Tetreault v. Astrue, 865 F.Supp.2d 116, 126 (D.Mass.2012) (an ALJ "is entitled to disbelieve subjective complaints of disabling pain in the face of contrary medical evidence."). "The First Circuit has noted that complaints of pain need not be precisely corroborated by objective findings, but they must be consistent with medical findings." Ortiz v. Comm'r of Soc. Sec., 81 F.Supp.3d 118, 126 (D.Mass.2015) (internal citation and quotation marks omitted).
The regulations require that a decision regarding credibility be supported by evidence:
SSR 96-7p, 1996 WL 374186, at *4. Seven factors are to be considered by an ALJ:
Cookson v. Colvin, 111 F.Supp.3d 142, 154, 2015 WL 4006172, at *10 (D.R.I. July 1, 2015). While the ALJ is required to consider all of the Avery factors, "an ALJ is not required to discuss every factor in its decision." Silvia v. Colvin, No. 13-11681, 2014 WL 4772210, at *6 (D.Mass. Sept. 22, 2014); Doshi v. Colvin, 95 F.Supp.3d 138, 146 (D.Mass.2015). At bottom,
Silvia, 2014 WL 4772210, at *7 (emphasis added).
Here, the ALJ explained in detail his rationale for disbelieving Plaintiff, including discussion of several of the Avery factors. First, he found that her need for medical care had been fairly minimal, consisting of appointments "three or four times per year for medication management, lifestyle modification, and observation."
It is true that Plaintiff did not testify to a full range of daily activities in the hearing. The ALJ therefore relied on the activities she reported on her Function Report from May 6, 2012. (TR at 332-339.) Although Plaintiff completed the Function Report more than one year before her hearing on October 31, 2013, there is no indication in the record that her condition changed in any significant way in that time. Plaintiff did not testify that her daily activities had become more limited over the previous year. No medical records indicate that she was less able to do any of the tasks described. And on June 14, 2012, Plaintiff reported equivalent ability to perform daily activities in her consultative examination with Richard Vinacco Jr., Psy. D. (TR at 500-504.) Therefore, it was proper
Although the ALJ referred to surgery as one possible treatment for lupus, he did not view it as necessary to find disability. He merely noted that Plaintiff had not required significant medical management of her symptoms. The ALJ's specific findings and citations to evidence support his determination of Ms. Botelho's credibility, and that determination should not be disturbed.
For all the reasons stated, it is ORDERED that Plaintiff's Motion for Judgment on the Pleadings (#10) be, and the same hereby is, DENIED. It is FURTHER ORDERED that Defendant's Motion for Order Affirming the Decision of the Commissioner (#13) be, and the same hereby is, ALLOWED. Judgment shall enter for Defendant.
