Richards v. Kijakazi

554 F.Supp.3d 242

Gail Ann RICHARDS, Plaintiff,

v.Kilolo KIJAKAZI, Acting Commissioner, Social Security Administration,¹ Defendant.

Civil Action No. 20-10966-JCB

United States District Court, D. Massachusetts.

Filed August 13, 2021

Stephen L. Raymond, Raymond Law, Middleton, MA, for Plaintiff.

Paul Nitze, Social Security Administration-Office of the General Counsel, Boston, MA, for Defendant Andrew Saul.

ORDER ON RICHARDS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND ACTING COMMISSIONER'S MOTION TO AFFIRM

[Docket Nos. 17, 21]

Boal, M.J.

This is an action for judicial review of a final decision by Kilolo Kijakazi, the Acting Commissioner of the Social Security Administration ("Commissioner"), denying Gail Ann Richards’ applications for disability insurance benefits ("DIB") and disabled widows benefits ("DWB"). Richards asserts that the Commissioner's decision denying her such benefits – memorialized in an April 26, 2019 decision of an administrative law judge ("ALJ") – is in error, and moves that the decision should be reversed or, in the alternative, remanded for a new hearing. Docket No. 18. The Commissioner, in turn, has moved to affirm. Docket No. 21. For the following reasons, this Court remands the case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further findings and/or proceedings consistent with this order.²

I. FACTS AND PROCEDURAL HISTORY

A. Procedural History

Richards filed a previous, unsuccessful application for benefits, which was denied on June 19, 2016. (Administrative Record³ ("AR") 49-58). Richards appealed that decision to the Appeals Council, which denied her request to review on February 10, 2017. (AR 63-68).

Richards then filed applications for DIB and DWB on April 7, 2017, alleging disability as of June 10, 2016. (AR 261-69). She alleged she was disabled due to disorders of the back (discogenic and degenerative). (AR 94). The application was denied initially (AR 172-74), and on reconsideration (AR 184-86). On January 24, 2019, ALJ William Ross held a hearing at which Richards and vocational expert ("VE") Michael Dorval appeared and testified. (AR 17-41).

The ALJ issued a decision on April 26, 2019,⁴ finding that Richards was not disabled from June 10, 2016, her alleged onset date, through the date of that decision. (AR 137-46). On April 29, 2019, Richards requested review of that decision from the Appeals Council. (AR 252). The Appeals Council denied Richards’ request for review on March 17, 2020, making the ALJ's decision the final decision of the Commissioner. (AR 5-7).

Richards filed this action on May 19, 2020. Docket No. 1. On February 16, 2021, Richards filed a motion for judgment on the pleadings, Docket No. 17. On April 5, 2021, the Commissioner filed a motion for an order affirming her decision. Docket No. 21. On April 9, 2021, Richards filed a reply memorandum, Docket No. 23; on April 22, the Commissioner filed a surreply. Docket No. 24. Each party filed a notice of supplemental authorities. Docket Nos. 25, 28.

B. Medical History

1. Background

Richards was 57 years old on the alleged onset date. Docket No. 18 at 2. She has a 12th-grade education and has worked in the past as a bookkeeping clerk, a secretary, and a data entry clerk. (AR 22, 41).

2. Diagnostic Imaging And Testing

A July 2016 lumbar magnetic resonance imaging (MRI) scan showed lumbosacral spondylosis with grade I anterolisthesis of L5-S1 region of Richards’ spine. (AR 417). That MRI also indicated an associated posterior annular bulge and bilateral foraminal stenosis, with impingement of the L5 nerve roots and a small anterior annular tear at the L3-L4 level. (AR 417). An April 2016 x-ray is consistent with that MRI. (AR 436-37). An August 23, 2018 bone density scan indicated osteopenia. (AR 524-25). A December 2016 x-ray of Richards’ left foot was normal. (AR 434-35). As a result of chronic pain in her right hand, she received a May 2018 x-ray of her right wrist that revealed a gullwing erosive deformity with soft tissue swelling and hypertrophic degenerative changes at the right second DIP joint, consistent with osteoarthritis. (AR 510).

3. Treatment Records

Between May 2017 and August 2018, Richards sought treatment with Dr. Asnat Koehne, M.D. Records prepared from Richards’ May 31, 2017 visit reflect active problems including arthralgia of the right ankle, arthralgia of the toe of the left foot, bulging lumbar disc, cervical neuritis, chronic bilateral low back pain, knee pain, lumbosacral spondylosis without myelopathy, pain in the thoracic spine, and wrist symptoms. (AR 392). At that time, Richards declined a referral to an orthopedic specialist. (AR 397). Records of Richards’ appointments with Dr. Koehne continue to recite these problems throughout her treatment.

On May 16, 2016, Richards was seen by Michelle Graeff, P.A., for chronic axial back pain. Graeff's notes for that visit indicate that Richards suffered from chronic back pain and that her x-rays revealed grade I L4-L5 spondyloisthesis and advanced L4-5 degenerative disc disease, a finding which was also reflected on her MRIs, along with moderately advanced degenerative disease L4-L5. (AR 383). At that appointment, Richards declined cortisone injections due to the high cost of insurance copays. (AR 384). She began therapeutic naproxen and home exercises. (AR 384).

4. Treating Physician's Opinion

On September 9, 2017, Dr. Koehne completed a spinal impairment questionnaire. (AR 473-79). Her diagnosis was "lumbosacral degenerative spinal and disc disease." (AR 473). She indicated that Richards had daily and constant pain and intermittent sciatica, precipitated by sitting and bending. (AR 475). Dr. Koehne noted that Richards’ pain was "frequently" severe enough to interfere with Richards’ attention and concentration. (AR 477). She indicated that Richards could sit for up to an hour and stand or walk for up to an hour in an eight-hour workday. (AR 476).

Dr. Koehne stated that "I don't believe [Richards] can work an 8-hour day even with breaks," and noted that Richards’ condition would interfere with her ability to maintain her neck in a constant position, as would be required while looking at a computer screen. (AR 478). Dr. Koehne also noted that Richards’ condition was likely to produce good days and bad days, and that she was likely to be absent from work more than three times a month as a result of her conditions. (AR 478).

C. Richards’ Testimony At The Hearing

Richards testified at the hearing. (AR 21-40). She testified that she lived with her adult son, and had not worked since her alleged onset date of June 10, 2016. (AR 22-23). She represented that she could drive, but only short distances. (AR 22). Richards noted that she could not sit for longer than two and a half hours before experiencing pain in her right and occasionally left hip, which she rated at a "seven or eight" on a ten-point scale, and that she must lay down to relieve the pain. (AR 27). She reported a shooting pain in her right wrist while typing. (AR 28-29). Richards described trouble sleeping due to her pain, which caused fatigue during the day. (AR 30). Her pain also caused her to lay down between two and four times a day for an hour to an hour and a half at a time. (AR 30).

Richards reported that she was able to clean and shop for groceries by herself, but could not cook for longer than a half an hour, because of her difficulty standing. (AR 35). She reported that she could do laundry but needed help to lift baskets. (AR 35).

II. STANDARD OF REVIEW

A court may not disturb the Commissioner's decision if it is grounded in substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is such relevant evidence as a reasonable mind accepts as adequate to support a conclusion. Biestek v. Berryhill, ––– U.S. ––––, 139 S.Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) ; Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). The Supreme Court has defined substantial evidence as "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Thus, even if the administrative record could support multiple conclusions, a court must uphold the Commissioner's findings "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion." Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (citation and internal quotation marks omitted).

A denial of benefits, however, will not be upheld if there has been an error of law in the evaluation of a particular claim. See Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In the end, the court maintains the power, in appropriate circumstances, "to enter ... a judgment affirming, modifying, or reversing the [Commissioner's] decision, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).

III. DISCUSSION

A. Disability Standard And The Commissioner's Decision

The Social Security Act (the "Act") defines disability, in part, as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual is considered disabled under the Act

only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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 he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. §§ 423(d)(2)(A). See generally Bowen v. Yuckert, 482 U.S. 137, 146-49, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). "The definition of disability for disabled...