Davenport v. Colvin et al
Magistrate Judge Donald L. Cabell: ORDER entered granting 41 Motion for Order Affirming Decision of Commissioner and denying 37 plaintiff's request that the Commissioner's decision be reversed and that she be awarded benefits. (DLC, law3)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
NANCY A. BERRYHILL, 1
Acting Commissioner of the
Social Security Administration.
ORDER ON PLAINTIFF’S MOTION TO REVERSE THE COMMISSIONER’S
DECISION (DKT. NO. 37) AND DEFENDANT’S MOTION TO AFFIRM THE
COMMISSIONER’S DECISION (DKT. NO. 41)
Corleen Davenport applied for Title II Disability Insurance
Benefits (“DIB”) but an Administrative Law Judge (ALJ) denied her
claim after determining that she did not suffer from a severe
declined to hear her appeal.
Davenport argues that the ALJ never
received certain records that would have proven a mental health
determination as well as a ruling that she is entitled to benefits.
(Dkt. No. 41).
For the reasons discussed below, the
Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill has been substituted
for Carolyn W. Colvin as Acting Commissioner of the Social Security
court finds no error in the ALJ’s treatment of the plaintiff’s
Accordingly, the plaintiff’s motion to reverse will
be denied and the defendant’s motion to affirm will be allowed.
On April 8, 2013, the plaintiff filed an application for
disability and disability insurance benefits under Title II of the
Social Security Act. (Dkt. No. 26: Social Security Administration
Record of Social Security Proceedings, at page 108 (hereinafter
The plaintiff alleged a physical disability since
April 9, 2010 due to a work-related incident that resulted in
injury to her lower back and left leg.
date last insured was March 31, 2011.
On September 5, 2013, the SSA denied the plaintiff’s claim.
On January 9, 2014, the SSA denied the application again after the
plaintiff requested a reconsideration.
(R. 121-23, 125-27).
On October 16, 2014, an ALJ held an administrative hearing.
On January 13, 2015, the ALJ determined that the
plaintiff was not eligible for disability benefits because she was
not disabled since April 9, 2010, the alleged disability onset
On March 22, 2016, the Appeals Council denied
the plaintiff’s request for review of the ALJ’s decision, making
it the final decision of the Commissioner.
plaintiff initiated this action on May 25, 2016. (Dkt. No. 1).
A. Personal and Employment History
The plaintiff was born in 1959 and completed the tenth grade.
(R. 57, 97).
She previously worked as a press operator and as a
sales clerk for a movie theatre, coffee shop, and supermarket.
She last worked in April of 2010 as a barista for a
Starbucks located inside of a Stop & Shop supermarket.
The plaintiff was 50 years old on April 9, 2010, the alleged onset
date of her disability.
Her date last insured was March 31, 2011.
B. Medical History
Treatment for Physical Health Related Issues
In her 2013 application for benefits, the plaintiff alleged
a physical disability due to pain in her lower back and left leg.
With respect to records and evidence bearing on treatment for
physical matters, the record reflected as follows.
On April 9, 2010, the plaintiff presented to the Morton
Hospital emergency department with complaints of lower back pain.
While at work earlier that afternoon, the plaintiff
was lifting heavy trash bags out of a barrel when she heard a “pop”
in her lower back immediately followed by pain.
was released from the emergency department that evening, and was
prescribed hydrocodone, cyclobenzaprine, and ibuprofen for the
pain. (R. 195).
The following day, Dr. DeTurck, a chiropractor
with the Taunton Wellness Center, diagnosed the plaintiff with a
Between April 2010 and May 2012, the plaintiff saw numerous
chiropractors and underwent a variety of treatments to alleviate
her lower back and left leg pain, including electrical muscle
increase core strength, and chiropractic adjustments.
202, 244-47, 541-65).
On February 16, 2012, the plaintiff saw Dr. Alfred Krebs, an
orthopedic surgeon, for the first time.
Based on his
physical examination of her, Dr. Krebs concluded that the plaintiff
had “S1 nerve root impingement secondary to her ruptured L5 S1
Dr. Krebs recommended an MRI and
treatment with anti-inflammatories and muscle relaxers.
The MRI scan revealed no disc herniation, central canal stenosis
or nerve root impingement.
Treatment for Mental Health Related Issues
Following the SSA’s denial of her application for a physical
disability, the plaintiff sought an administrative hearing in
front of an ALJ.
The ALJ on July 2, 2014 convened a pre-hearing
conference to discuss issues that would be pertinent at the as yet
unscheduled administrative hearing.
her attorney were both present. (Id.).
The plaintiff and
Among other things, the
ALJ noted that there was a suggestion in the record of the
cautioned them that there was as of yet no supporting evidence.
The plaintiff’s counsel acknowledged that the ALJ was correct but
said that they were in the process of gathering records, including
records from the South Shore Mental Health Center.
that the plaintiff had “a history of some treatment issues for
emotional problems” but that they did not have any records of any
Counsel said he would gather whatever
records he could and submit them for the administrative hearing.
related records for the ALJ’s consideration shortly prior to the
hearing. In sum, the records reflected that the plaintiff received
some intermittent treatment in 2007 and some additional treatment
On March 22, 2007, the plaintiff sought psychiatric treatment
with a licensed social worker at the South Shore Mental Health
The plaintiff reported that she was feeling
depressed and sad, and she was diagnosed (by the social worker)
with major depressive disorder.
On April 16, 2007, the
plaintiff returned for a follow-up visit and was additionally
diagnosed (by a nurse) with post-traumatic stress disorder and
inhibitor called Celexa to treat her depression.
The plaintiff did not receive any further mental health
treatment until sometime in 2012, when she resumed individual
therapy sessions at the South Shore Mental Health Center for
connection with a piece of property in Arizona.
evaluating clinician noted that the plaintiff was seeking mental
health treatment in part to establish a record of mental suffering
and emotional distress that she could in turn present to the judge
presiding over a pending court lawsuit in Arizona.
After attending three out of five sessions and failing to attend
the last two, the plaintiff was discharged from the South Shore
Mental Health Center on April 30, 2013.
C. The Administrative Hearing
The ALJ convened the administrative hearing on October 16,
The plaintiff testified.
Among other things,
she testified that she lived at home with her husband, had one son
vocational training. (R. 57-58, 65).
The plaintiff also recounted
her medical history and indicated that her most significant medical
concern was the pain in her lower back and left leg as a result of
a work-related injury.
The plaintiff testified that she
had not seen a physician or a chiropractor in connection with her
pain since 2012.
Instead, she explained, she treated her pain at
home with exercises, heating pads, and Tylenol.
The plaintiff also testified that she had suffered from
depression and anxiety for most of her life.
that she would feel depressed and anxious and lacked energy during
the day, which in turn inhibited her ability to maintain full-time
She stated that she had recently resumed
taking medication for anxiety after having stopped in 2007.
A medical expert testified at the hearing regarding her
independent assessment of the medical evidence in the record from
the alleged onset date through the date last insured, that is,
from April 9, 2010 to March 31, 2011.
subjective complaints of lower back pain, but that the objective
As for the plaintiff’s
mental health issues, the medical expert could not form an opinion
as to what effect, if any, those might have on her ability to work.
The expert explained that the treatment the plaintiff received in
2007 was simply too far removed from the alleged disability onset
date to be instructive, and the treatment the plaintiff received
in 2012 did not reveal that the plaintiff had any psychological
Moreover, as the expert noted, the plaintiff sought
the latter treatment primarily in order to establish a record of
mental suffering in support of an unrelated legal action.
D. The ALJ’s Findings
On January 13, 2015, the ALJ found that the plaintiff was not
The ALJ noted that a plaintiff in order to
be eligible for DIB must be 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).
determine that the plaintiff did not meet this standard.
substantial gainful activity (“SGA”), because a claimant who is so
engaged is not disabled.
20 CFR § 404.1520(b).
SGA is defined
as work activity done for pay that involves performing significant
physical or mental activity.
20 CFR §§ 404.1572(a), (b).
found that the plaintiff had not engaged in SGA since the alleged
onset date of her disability, April 9, 2010.
Step two considers whether the plaintiff has a medically
impairments that is severe as defined by the pertinent regulations.
20 CFR § 404.1520(c).
A plaintiff who does not have an impairment
that is severe is not disabled.
Here, the ALJ found that the
determinable impairment, but found that the impairment did not
meet or medically equal the severity criteria of an impairment
listed in the pertinent regulations because the plaintiff had the
ability to perform “[b]asic work activities”, including: “(1)
[p]hysical functions such as walking, standing, sitting, lifting,
(R. 23, 25).
In reaching this conclusion, the ALJ noted that the objective
regarding her functional limitations.
The ALJ also
found that the medical record failed to establish a medically
determinable impairment by an acceptable medical source as defined
in 20 CFR § 404.1513.
Rather, the only diagnosis made by
an acceptable medical source was one of left lumbar myalgia, which,
as the ALJ noted, is essentially a diagnosis of pain without an
underlying physical impairment.
In terms of the plaintiff’s alleged anxiety and affective
disorders, the ALJ noted that the medical evidence revealed that
the plaintiff sought psychiatric treatment only twice in the
relevant time period, that is between the alleged onset of the
disability and her date last insured.
afforded little to no weight to the psychiatric records because
the diagnoses contained in those records were made by a social
worker and nurse and therefore were not offered by an acceptable
medical source as defined in 20 CFR § 404.1513.
The ALJ accordingly concluded that the plaintiff was not
disabled. (R. 33).
III. STANDARD OF REVIEW
A court reviews the findings of an ALJ only to determine
whether the findings are supported by substantial evidence, and
whether the correct legal standard was applied.
151 F. Supp. 3d 223, 226 (D. Mass. 2015).
Teague v. Colvin,
Substantial evidence to
support a decision exists “if a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adequate to
support his conclusion.” Id. (quoting Rodriguez v. Sec’y of Health
and Human Services, 647 F.2d 218, 222 (1st Cir. 1981)).
applying the substantial evidence standard, the court must bear in
mind that it is the province of the Commissioner to find facts,
decide issues of credibility, draw inferences from the record, and
resolve conflicts of evidence.
Ortiz v. Secretary of Health and
Human Servs., 955 F.2d 765, 769 (1st Cir. 1991).
This court may
affirm, modify, or reverse the ALJ’s decision, but reversal is
only warranted if the ALJ made a legal or factual error in
evaluating the plaintiff's claim, or if the record contains no
“evidence rationally adequate . . . to justify the conclusion” of
Roman–Roman v. Commissioner of Soc. Sec., 114 Fed. Appx.
410, 411 (1st Cir. 2004).
Thus, if the Commissioner’s decision is
supported by substantial evidence, it must be upheld even if the
record could arguably support a different conclusion.
v. Secretary of Health and Human Servs., 826 F.2d 136, 144 (1st
The plaintiff does not argue that the ALJ erred when he
determined that she did not suffer from a severe impairment based
on the record before him.
Rather, she contends that the ALJ did
not have a complete record before him, because he for some reason
did not receive some additional mental health related evidence
dating back to 2004.
Because the record is clear that the ALJ did
receive mental health treatment records beginning from 2007, the
treatment from 2004 to 2007.
The plaintiff contends that had this
evidence been reviewed, it would have persuaded the ALJ that she
suffers from a mental health related disability.
sputters from the start and does not get far.
As a threshold matter, the plaintiff does not proffer what
these records would reveal, how they would have altered the outcome
of the administrative hearing, or why they were never presented to
the ALJ for his consideration.
Her failure to offer more is
particularly harmful to her claim where the evidence would by
default be of marginal relevance at best where it was several years
old and the ALJ already had evidence before him of mental health
related treatment during the relevant time period.
To be sure, the plaintiff offers two possible reasons as to
why the evidence was not received.
She suggests in one paragraph
that she (or her counsel) had the records but the ALJ did not allow
her to submit them.
(Dkt. No. 1; “Had the ALJ . . . allowed the
submission of the complete medical of all claims submitted from
2004 until present they would have [had] no choice but to approve
the entitlement and grant me my benefits.”).
In the very next
paragraph, however, she seems to suggest that someone other than
her or her counsel, that is, an unidentified “they”, had the
evidence but failed to submit it to the ALJ.
(Id.; “Upon review
of the [evidence] submitted to the ALJ I realized they failed to
submit numerous reports and paperwork relating to my mental state
dating back to 2004.”)(emphasis added).
Treating these assertions
as alternative arguments, neither is persuasive and neither calls
the propriety of the ALJ’s consideration of the record or his
determination into question.
First, to the extent the plaintiff argues that the ALJ did
not allow her to submit evidence dating back to 2004, there is,
simply, no evidence to suggest the ALJ acted in any way to restrict
what information the plaintiff could submit in support of her
application, and the court rejects the assertion as groundless.
Indeed, the record demonstrates unambiguously that the ALJ himself
admonished the plaintiff at the pre-hearing conference to be
prepared to marshal evidence to support a claim of a mental health
related impairment. If anything, the ALJ encouraged the submission
of any additional evidence bearing on the plaintiff’s mental
Second, to the extent the plaintiff argues that someone must
have failed to transmit the additional evidence to the ALJ, it
suffices to point out that it was the plaintiff’s burden to prove
the existence of a severe impairment and she and no one else was
responsible for ensuring that the relevant psychiatric medical
evidence was submitted to the ALJ for his consideration. See Musto
v. Halter, 135 F. Supp. 2d 220, 233 (D. Mass. 2001)(“It is not
unreasonable to require the claimant, who is in a better position
to provide information about [her] own medical condition, to do
so.”)(quoting Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987));
see also Jones v. Berryhill, No. 16-11011-DJC, 2017 WL 3726018, at
* 9 (D. Mass. Aug. 29, 2017)(“the claimant has a duty to exercise
reasonable diligence in providing the Secretary with relevant
evidence to satisfy his burden of production at the first four
steps of the process”)(citing Freeman v. Barnhart, 274 F.3d 606,
608 (1st Cir. 2001)).
In that regard, there is no dispute that
the plaintiff (through counsel) submitted some psychiatric records
prior to the scheduled hearing.
If the plaintiff is now
heard to complain that those records were not complete, the fault
does not lie with the ALJ.
To be clear, the court finds that the ALJ met his burden to
consider the evidence in the record.
The Commissioner is required
by law to “develop a complete medical history of at least the
preceding twelve months for any case in which a determination is
made that the individual is not under a disability.”
42 U.S.C. §
423(d)(5)(B); see also Carrillo Marin v. Secretary of Health and
Human Services, 758 F.2d 14, 17 (1st Cir. 1985)(same).
Commissioner demonstrably met her burden here where the records
before the ALJ dated from early 2007 to 2012 and therefore included
the relevant time period (2010-2011).
The court also finds in
that regard that the ALJ did not err when he determined on this
record that the evidence did not show that the plaintiff suffered
from a severe impairment.
See e.g., Teague, 151 F. Supp. 3d at
In closing, a final point bears noting.
The plaintiff in her
opposition to the Commissioner’s motion and in support of her own
motion appends as exhibits various medical records separate and
apart from those included in the SSA record.
(Dkt. No. 38, Ex. 1-
Among other things, these records include a 2006 consultative
psychological exam report of the plaintiff (but curiously do not
include any mental health records dating back to 2004).
It goes without saying, although we do say it here for the
plaintiff’s edification, that the court may not now consider
evidence that was not properly before the ALJ or part of the SSA
See Saenz v. Colvin, 61 F. Supp. 3d 195, 205 (D. Mass.
decision, the Court should not consider additional evidence that
was never presented to the ALJ.”)(citing Mills v. Apfel, 244 F.3d
1, 4 (1st Cir. 2001)).
For the foregoing reasons, the plaintiff’s motion to reverse
the ALJ’s determination and declare her eligibility for disability
benefits (Dkt. No. 37) is DENIED and the Commissioner’s Motion for
an Order Affirming Her Decision (Dkt. No. 41) is GRANTED.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
March 7, 2018
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