Aziz v. Saul

CATHERINE FIORELLO AZIZ Plaintiff, v. ANDREW SAUL,Commissioner of the Social Security Administration, Defendant.

CIVIL ACTION NO. 19-11885-WGY

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

February 25, 2021

Young, D.J.

MEMORANDUM & ORDER

I. Introduction

Plaintiff Catherine Fiorello Aziz ("Aziz") moves to reverse or remand the decision of the Commissioner of the Social Security Administration (the "Commissioner" or "SSA") denying her disability income benefits under Title II of the Social Security Act ("SSI" or "SSI benefits"). The Commissioner cross-moves to affirm the decision.

The hearing officer's decision is reversed and remanded for rehearing because he failed properly to develop the record as to a missed psychological consultative examination that the SSA had deemed necessary at the reconsideration stage, and improperly considered Aziz's failure to seek mental health treatment to cope and lack of recorded hospitalizations without addressing the reasons therefor. This Court ALLOWS Aziz's motion and DENIES the Commissioner's cross-motion for affirmance, solely on those grounds.

A. Procedural History

On April 6, 2016, Aziz filed a Title II application for a period of disability beginning on December 31, 2008. Certification, Attach. 2, Docs. Related Admin. Process Including Tr. Oral Hr'g ("R.") at 11, ECF No. 14-2. Aziz's initial claim was for disability due to methicillin-resistant staphylococcus aureus ("MRSA"), anxiety, fibromyalgia, acute cystic acne, iron deficiency, gastroesophageal reflux disease ("GERD"), ringing in ear, herniated disc, depression, post-traumatic stress disorder ("PTSD"), and attention deficit hyperactivity disorder ("ADHD"). Id. at 94-95. The claim was denied on June 1, 2016 because Aziz had not provided sufficient information to support the claim. Id. at 99. Aziz requested reconsideration, and the decision was affirmed on March 13, 2017. Id. at 11, 114. Again, the claim was denied because of insufficient evidence in the file to support her claim. Id. at 135. Aziz applied for a hearing on June 12, 2017. Id. at 11. A one-hour hearing was held on March 7, 2019. Id. at 11, 34-93. The hearing officer issued a decision on April 5, 2019 ("the Decision"), finding and ruling that Aziz was not disabled. Id. at 11-21. On May 1, 2019, Azizappealed the Decision to the Appeals Council, Office of Disability Adjudication and Review. Id. at 352-353. On July 8, 2019, the Appeals Council denied review of the Decision. Id. at 1-4.

On September 5, 2019, Aziz filed the complaint in this action challenging the Commissioner's denial of her Social Security disability benefits claim. Compl. ¶¶ 1-16, ECF No. 1. On February 3, 2020, Aziz filed a motion to reverse or remand. Mot. Reverse Remand Decision Commissioner Social Security Administration, ECF No. 18; Mem. Law Supp. Pl.'s Mot. Reverse Remand Decision Commissioner Social Security Administration ("Pl.'s Mem."), ECF No. 19. The Commissioner filed a cross-motion to affirm the decision and a supporting memorandum on March 16, 2020. Mot. Order Affirm Decision Commissioner, ECF No. 21; Mem. Support Mot. Order Affirm Decision Commissioner ("Def.'s Mem."), ECF No. 22.

The parties' counsel came before this Court on December 16, 2020 for a hearing by video conference, at the conclusion of which this Court took the matter under advisement. See Elec. Clerk's Notes, ECF No. 24.

B. Background

1. Work History

Aziz's alleged onset of her physical and mental impairments was December 31, 2008, which was amended at the hearing toDecember 17, 2012. R. at 41, 237. At the amended date of onset, Aziz was 46 years old. Id. at 169. Aziz was 50 years old on December 31, 2016, the date of last insured ("DLI"), and 53 years old on the date of her hearing. Id. at 11-12, 169. Aziz is a high-school graduate with some college coursework, but Aziz did not earn a college degree. Id. at 39. The record reflects a verified work history in the field of computers and sales from at least 2003 through 2012, with some further attempts at work in that field in 2014, and seasonal work in retail in 2018. Id. at 83-84, 222-225.

2. Medical History and SSA Case Progression

a. Pre-Claim Filing

Aziz has a longitudinal medical record of treatment for physical conditions and at least medication for mental health conditions. Id. at 391-478. Pertinent to the issues here, between the amended date of onset through the DLI, the medical record reveals that her primary care physician, Jane Thompson, M.D., through various medical personnel oversaw Aziz's care at her office during the pre-DLI period. Id. at 392-447. During this same period, Aziz also saw Beverly Anderson, RN, at a different healthcare provider, for psychological medications. Id. at 367-382. Beginning in January 2016, however, Aziz's problems took a turn for the worse. On January 21, 2016, Aziz had her annual physical with JoAnn Furlong, NP, her firstphysical examination since 2012. Id. at 404. Furlong reported that Aziz claimed to be "miserable," "hurt[ing] all over," and suffering from "achy" "hands[,] wrists[,] arms[,] and legs" for the past "couple months." Id. She complained of chest pain "every day like a brick is on her chest," and remarked that her "neck to lower back hurts [and] entire back is sore [due to] mult[iple] joint pains." Id. at 407. In summary, fibromyalgia was suspected, and anxiety, depression, cystic acne, GERD, and hearing loss were listed as problems. Id. at 410-411.

b. Aziz Files her SSDI Disability Claim

On April 6, 2016, Aziz filed a pro se claim for disability due to MRSA, anxiety, fibromyalgia, acute cystic acne, iron deficiency, GERD, ringing in right ear, herniated disc, depression, PTSD, and ADHD. Id. at 94. Aziz initially claimed a date of onset of December 31, 2008. Id. at 95.

A week later, on April 13, 2016, Aziz had a follow-up visit with Nurse Practitioner Furlong for depression/anxiety, GERD, and joint pain. Id. at 397. Although she was still seeing Nurse Anderson for psychological medication, Aziz indicated that she wanted "to find a therapist" and "want[ed] 'the best' therapist there is to treat her." Id. at 397, 400. Aziz reported that she was "in financial straits" and "applying for Social Security." Id. at 397. She claimed that she had stopped taking her medication for fibromyalgia because it had nothelped, though she continued to "hurt[] all over." Id. Aziz "move[d] easily on and off [the] exam table." Id. at 400. At this visit she was diagnosed with iron deficiency, GERD, multiple joint pain ("seems [to] have fibromyalgia"), and anxiety/depression. Id. at 401-402. Nurse Furlong states, "seeing her med prescriber soon but needs therapy lots of social issues d [sic] care called to help her fin[d] one." Id. at 402.

On May 5, 2016, the SSA sent a second request to Aziz for completion of her function report. Id. at 96. On May 9, 2016, Aziz's PCP's office provided records. Id. at 95-96. On May 24, 2016, under the subject line "FTC," likely meaning failure to cooperate, there is a notation that Aziz called and was reminded that "without the forms the claim could not be developed." Id. at 96. Aziz was "made aware of [the May 31, 2016] deadline[] consequences and declined to have third party contacted." Id.

On a document dated May 25, 2016, although it is not clear when received by SSA, Aziz wrote a note claiming to have requested that Nurse Anderson expedite her records. Id. at 254. According to Aziz's self-report, she was "overwhelmed," reported problems getting along with others including family, and did not engage in social activity. Id. at 253-258. Aziz wrote that she "need[ed] help ASAP of supplemental income, housing, to move etc. and can't get help." Id. at 260.

c. Aziz's Initial Claim Denied and Request for Reconsideration

On June 1, 2016, the SSA denied Aziz's pro se claim for lack of documentation:

Under the law, the applicant is responsible for furnishing evidence to support the claim. Although you have been requested to furnish additional evidence, you have not done so. Therefore, a determination has been made based on the evidence in file. This evidence does not show that you are disabled.

Id. at 99.

On September 7, 2016, without the benefit of counsel, Aziz requested reconsideration of the denial of her claim. Id. at 261-274. On appeal of her initial denial, Aziz reported:

Worsening [since January 2016] already extreme anxiety, depression, irritability, focus, lost sense of self worth/value, ex-husband physically/financially abandonment and my family abandoned me, agoraphobic, added stress from costly unexpected vehicle repairs and no car for 2 months, no job, forced out of home by eviction. Physically exhausted, fibromyalgia is worsening numbing of hands/ feet, body aches, now restless leg syndrome, insomnia. Increased night terrors from marital emotional abuse. Because I hadn't had a car for few months and no family or friends nearby it was impossible to get to doctors appointments, do errands, groceries, etc. Need to get to ENT specialist due to ears ringing. Cystic disease has spread throughout my body and causes painful boils, keeps me from going out in public due to humiliation of open sores, etc. I'm in despair and feel my feet are stuck in, extreme ocd about past failures, post divorce, abuse, family abandonment and stuck in never ending daily tasks, to-dos, etc.

Id. at 262. She also claimed new conditions:

Emotional symptoms have spiraled and thoughts of suicide. Living circumstances with eviction and moving have taken a toll on early signs bulging discs and cannot sit, stand or do much. Irritability, mood swings, crying spells, etc. My emotional state and body ailments all around feel worse and feels there no quality of life. I was referred to a crisis center by Beverly Anderson, psychiatric RN.

Id. Aziz reported further deterioration in her daily activities:

worsening aches and pain from fibromyalgia, insomnia, lack of interest to shower, dont leave home, don't go out, can't

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