Conrad v. Kijakazi

666 F.Supp.3d 161

Melissa CONRAD, Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of Social Security,¹ Defendant.

Civil Action No. 1:21-cv-10788-IT

United States District Court, D. Massachusetts

Signed March 31, 2023

David F. Spunzo, Green & Greenberg, Providence, RI, for Plaintiff.

Luis Pere, Social Security Administration, Baltimore, MD, for Defendant Andrew Saul.

MEMORANDUM & ORDER

TALWANI, United States District Judge

Plaintiff Melissa Conrad seeks judicial review of the final decision by Defendant Commissioner of Social Security ("Commissioner") denying her claim for Social Security Disability Income ("SSDI"). Mot. to Reverse the Commissioner's Decision ("Mot. Reverse") [Doc. No. 16]. The Commissioner moves to affirm the final decision. Mot. to Affirm the Commissioner's Decision ("Mot. Affirm") [Doc. No. 19]. For the following reasons, Conrad's Motion to Reverse the Decision of the Commissioner [Doc. No. 16] is GRANTED IN PART and DENIED in PART and the Commissioner's Motion to Affirm the Commissioner's Decision [Doc. No. 19] is DENIED where the action is REMANDED for further consideration of absenteeism with respect to pre-December 31, 2015 period.

I. Procedural Background

On March 16, 2017, Conrad submitted to the Social Security Administration an SSDI application, alleging a disability onset date of January 1, 2013. Administrative Record ("A.R."). 16 [Doc. No. 15-2]. On October 13, 2017, Conrad filed a written request for a hearing on her SSDI application. Id.

On November 7, 2017, Conrad filed a Supplemental Security Income ("SSI") application, which was escalated to the hearing level. Id. On March 1, 2018, an ALJ dismissed Conrad's SSDI application and, since the agency failed to consider Conrad's allegations of disability after her date last insured,² remanded her SSI application for initial and reconsideration level medical determinations. A.R. 74-75 [Doc. No. 15-3]. Conrad's SSI claims were denied on November 5, 2018. Id. at 76-91.

On January 18, 2019, Conrad sought reconsideration of the denial of her SSI application. A.R. 138-140 [Doc. No. 15-4]. That same day, Conrad filed a second SSDI application, alleging that her onset of disability was January 1, 2013. A.R. 118 [Doc. No. 15-3]. Conrad's SSDI claims and reconsidered SSI claims were denied on July 8, 2019. A.R. 141-146 [Doc. No. 15-4]. Conrad requested a hearing, which was held before an ALJ on July 6, 2020. A.R. 41-70 [Doc. No. 15-2]. In an August 5, 2020 decision, the ALJ found in relevant part that Conrad was not disabled within the meaning of the Social Security Act prior to November 7, 2017 (meaning that Conrad was not disabled through December 31, 2015, her date last insured), but that Conrad became disabled on November 7, 2017 (the earliest allowable onset date for her SSI application). Id. at 30-31. Thus, Conrad's SSDI application for the pre-December 31, 2015 period was denied and Conrad's SSI application for the post-November 7, 2017 period was granted.

Conrad requested review of the portion of the ALJ's decision denying her SSDI, and the Social Security Administration Appeals Council denied her request on March 10, 2021, making the ALJ's decision the final decision of the Commissioner in this case. Id. at 1-4.

II. Age, Education, and Work History

Conrad was fifty years old in 2017 when she submitted her initial application for disability benefits; she has a high school education; and she previously worked as a daycare teacher. Id. at 48-49, 51. Conrad's last employment was in 2013. A.R. 254 [Doc. No. 15-6].

III. Medical Evidence Provided to the ALJ³

In her Adult Disability Report dated July 28, 2018, Conrad lists chronic obstructive pulmonary disease ("COPD"), sleep apnea, chronic migraines, chronic fatigue, hip and leg pain, and depression and anxiety as conditions that limited her ability to work as of January 1, 2013. Id. at 265. A summary of Conrad's evidence of these impairments, as well as other impairments, for the pre-December 31, 2015 period, is as follows.

A. Chronic Obstructive Pulmonary Disease ("COPD") and Sleep Apnea

During multiple doctor's visits in 2013, the medical records indicate that Conrad was taking ProAir HFA, Spiriva, Advair, and Montelukast for her COPD and should continue to do so. A.R. 1521, 1526, 1542 [Doc. No. 15-10]. On October 20, 2014, and April 28, 2015, Conrad was seen for her COPD by Dr. Chris Kapogiannis, an internal medicine, critical care medicine, sleep medicine and pulmonary disease doctor. A.R. 1713, 1725 [Doc. No. 15-11]. During the first visit he noted that Conrad's COPD was stable and that she should maintain her current medical regimen, and during the last visit he confirmed that she should continue with her current medication regimen. Id.

Dr. Kapogiannis also saw Conrad on November 10, 2014. Id. at 1892. He noted that she was diagnosed with sleep apnea at some point after September 2012, but that Conrad is using a continuous positive airway pressure ("CPAP") machine nightly and "is sleeping better" and "[h]er energy level is much better." Id. Dr. Kapogiannis reported that Conrad is "quite well with [the CPAP machine]." Id.

B. Migraine and Chronic Pain Syndrome

During a February 2013 visit, Dr. Win, an internal medicine doctor at Greater New Beford Community Health Center, noted that Conrad had been to the emergency room multiple times for migraines and headaches. A.R. 1537 [Doc. No. 15-10]. On April 18, 2013, Conrad received an occipital nerve root block for her chronic pain syndrome relating to headaches, which had no effect. Id. at 1395. On October 31, 2013, Conrad received a cranial Botox injection to treat her headache and migraine pain. Id. at 1392.

On November 15, 2013, Conrad was seen by Dr. Allison Gorski, a pain medicine specialist at the Southcoast Health Pain Center ("Pain Center"), for migraine and headache pain that had not improved after the nerve root block or Botox injection. A.R. 1763 [Doc. No. 15-11]. During this visit, Conrad noted that her pain was an 8 out of 10 in intensity but was improved by steroid injections. Id. Dr. Gorski also noted that Conrad's occipital neuralgia and migraine aura issues are treated with the same treatments as her migraine/headache and chronic pain syndrome. Id. at 1764.

On February 13, 2014, Conrad received her second cranial Botox injection for headache and migraine pain. A.R. 1392 [Doc. No. 15-10]. On April 8, 2014, Dr. Bruce Abbot from the Southcoast Health System Brain and Spine Center indicated that Conrad's headaches had "substantially improved" after two rounds of Botox injections and a combination of Dilaudid, Perphenazine, Venlafaxine and Amitriptyline medication for the pain. A.R. 1740 [Doc. No. 15-11]. On July 18, 2014, Conrad received an occipital nerve root block for her chronic pain syndrome and related migraine issues. A.R. 1395 [Doc. No. 15-10]. On July 24, 2014, Conrad received her third cranial Botox injection for headache pain. Id.

On September 16, 2014, Conrad visited the Pain Center for management of her chronic pain syndrome related to her headaches. Id. at 1390. During this visit, she explained that she experienced fourteen headaches a month lasting longer than four hours at a time, and that she had had a headache for the past nine days straight. Id. The medical notes indicate that Conrad's occipital neuralgia and migraine aura were being managed with the same treatments as the treatments for her headaches and migraines. Id. at 1391. On October 12, 2014, Conrad received a CT scan of her head which revealed "no acute intracranial pathology." Id. at 1578. On October 30, 2014, Conrad received her fourth cranial Botox injection for headache and migraine pain management. Id. at 1392.

On November 7, 2014, Conrad saw a physician's assistant for a follow-up visit on her chronic pain syndrome related to headaches and migraines. Id. at 1392-93. At this visit, Conrad indicated that the Botox injections had caused a 50% improvement in the intensity and frequency of her headaches and that her current pain was 6 out of 10 in intensity, but that she had gone to the emergency room for headache pain twice in October and once in September 2014. Id.

On January 15, 2015, Conrad received her fifth cranial Botox injection for headache and migraine pain. Id. at 1395. On February 27, 2015, Conrad returned to the Pain Center to follow up on the headache issues because she was not responding well to the January Botox injection. Id. A month later, Conrad again followed up at the Pain Center and noted that her headaches were gradually worsening and had begun to occur three to four times a week. Id. During the month of April 2015, Conrad went to the emergency room three times for headache pain. Id. at 1405.

On April 23, 2015, Conrad received her sixth cranial Botox injection for headache and migraine pain. Id. at 1401. During May 2015, Conrad went to the emergency room twice for headache pain. Id. at 1405. On a May 27, 2015 follow-up visit with the Pain Center, Conrad reported that the Botox injections decreased her headache intensity by 50%. Id. at 1402. However, on June 8, 2015, Conrad again reported that her headaches were worsening, causing photophobia, nausea, and vomiting, becoming more frequent, and that she had again gone to the emergency room for the pain. A.R. 1793 [Doc. No. 15-11]. On June 22, 2015, Conrad went to the emergency room for headache pain. A.R. 1405 [Doc. No. 15-10]. On June 24, 2015, Conrad followed up with the Pain Center regarding increased headache pain, this time reporting pain levels of 8 out of 10 in intensity. In response to this pain, doctors increased her medication. Id.

On July 14, 2015, Conrad received her seventh cranial Botox injection for her migraine and headache pain. Id. at 1408. On July 22, 2014, Conrad went to the emergency room for headache pain. Id. at 1409. At an August 12, 2015 follow-up visit at the Pain Center, Conrad reported that her headache intensity had improved since her last emergency...