PATRICIA A. SULLIVAN, Magistrate Judge.
Plaintiff Rickia Littlejohn asks this Court to reverse the decision of the Commissioner of Social Security (the "Commissioner"), denying Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under §§ 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (the "Act"). He argues (1) that the failure of the Administrative Law Judge ("ALJ") to include in his hypothetical question to the Vocational Expert ("VE") the clarification that the ability to lift up to twenty pounds was "occasional" left the Step Five finding unsupported by substantial evidence; and (2) that the ALJ's residual functional capacity ("RFC")
This matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the entire record, I find no material legal error and that the ALJ's findings are well supported by substantial evidence. Accordingly, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 11) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 12) be GRANTED.
On August 17, 2012, Plaintiff protectively filed for disability that he claims began on April 1, 2012, due to a left foot impairment, a right Achilles tendon impairment, and the effects of childhood meningitis.
The anomalies infecting the evidence of Plaintiff's work history are exposed by contrasting the prior employment information from third party sources with employment information from Plaintiff. For starters, Plaintiff's earnings record reflects intermittent work, yielding relatively low income when he was working. From 2008 until 2012, these records reflect that he worked for "Middlesex Cleaning;" from 2008 until 2011, he earned between $8,000 to $12,000, while in 2012, he earned $1,200. Tr. 189-95. In 2012, the record reflects that he also worked for Laundry Management Services, Inc., which paid him $125, while in 2011, he was paid $3,000 by BCD Enterprises and, in 2008, he was paid $60 by Preferable People, LLC. Tr. 188-95. According to these records, in 2007, he had no income; in 2006, he earned $11,000 working for D. Corso Excavating, Inc., and Preferred Labor, LLC; in 2004 and 2005, he earned less than $7000 in each year. Tr. 189, 195. From 2003 back to 1990, he had almost no income at all. Tr. 189.
This objective information cannot be harmonized with the information Plaintiff provided in connection with his disability application: in a Work History Report, he wrote that he worked at "Middlesex Engineering" (not Middlesex Cleaning, the entity that reported paying him wages) from June 11, 1990, until April 1, 2012 (not from 2008 to 2012, as the earnings record reflects). Tr. 228. Plaintiff described this job as supervisory and involving the repair of engines on the top of hotels and requiring technical knowledge and skills. Tr. 229. Based on the rate of pay he wrote in the Report, Plaintiff would have earned close to $60,000 per year (far more than the earnings of up to $12,000 in the earnings report).
Also puzzling is Plaintiff's presentation of two variations of his daily activities in two quite different Function Reports that were filled out almost contemporaneously. Tr. 220-32, 233-48. The first was signed on September 9, 2012, and appears to have been entirely filled in by Plaintiff himself; the second was signed on September 28, 2012, less than three weeks later and purports to have been completed by "Rickia Littlejohn/Green & Greenberg." Tr. 227, 232, 240, 248. One report says that Plaintiff drives, Tr. 223, while the other says that he does not, Tr. 236. One says he lives in an apartment with family; the other says he lives with a friend. Tr. 220, 233. One says he cares for no one; the other says he cares for his grandson, including getting him up and making his meals. Tr. 221, 234. One says that, at least two days a week, he cannot get out of bed due to pain and depression; the other makes no such reference. Tr. 234. One says he prepares daily meals, vacuums, cleans, does laundry, and washes dishes with breaks as needed; the other says that he prepares meals, but the need to elevate his leg interferes with any other activities. Tr. 222, 235. One says he goes out "a lot" on foot or on public transportation, shops and can handle money; the other says he only tries to get out daily and cannot pay bills or handle either a savings account or the use of checks or money orders. Tr. 223, 236. One says that he regularly attends church and goes to the library and a men's club, while the other lists no places attended regularly because he tends to stay to himself. Tr. 224, 237-38. One says he has no problems with attention or following instructions, takes stress in stride and welcomes change, while the other says he does not deal well with stress and has difficulty with attention and spoken instructions. Tr. 225-26, 238-39. One says he must elevate his legs six to seven times per day for an hour to an hour and a half (a requirement not reflected in any medical record); the other makes no reference to such a limitation. Tr. 233.
Plaintiff's educational background is also mysterious. At the hearing, Plaintiff's counsel explained that he dropped out of high school in the tenth grade and later got a GED. Tr. 39. During the clinical interview with Dr. Turchetta, Plaintiff claimed to have finished high school in California and to have completed two and a half years of college at the University of California. Tr. 309;
The greatest mystery of all is what caused the injuries to the left foot, the right ankle and the lumbar spine, which are the primary impairments allegedly causing disability. Over the period from April 2012, when he stopped work, until just prior to the hearing in November 2013, Plaintiff has told many different versions of the story.
The tale begins with Plaintiff's left foot — on April 1, 2012 (the alleged onset date), at the Rhode Island Hospital ("RIH") emergency room, he reported "stepping on tree branch yesterday wearing slippers in backyard of his house" and that "something in the yard that came up thru my shoe"; the injury caused a puncture wound and a fractured metatarsal. Tr. 279, 282-83. The next event affects Plaintiff's right ankle — three months after seeking care for the left foot, on July 3, 2012, Plaintiff's ankle was x-rayed at Cambridge Hospital because of his complaint of "[r]ight Achilles pain and swelling." Tr. 300. A few days later, on July 6, 2012, Plaintiff saw Dr. Launer of Cambridge Health Alliance who diagnosed right Achilles tendon rupture, subacute, and recommended nonsurgical treatment because the injury was already at least one month old.
Meanwhile, while going to Cambridge for his right ankle, care for the left foot resumed in Rhode Island (after several missed follow-up appointments),
During this period, care for the right ankle (ended at Cambridge Hospital in October) switched to Rhode Island on December 3, 2012, at the Elmwood Orthopedic Rehab Center. Tr. 332. By contrast with the story of a work-place encounter with malfunctioning equipment told to Dr. Launer, Plaintiff told Elmwood staff that the right ankle was injured when he fell ten feet from a ladder in late March 2012. Tr. 332. Based on a physical examination, they opined that, with appropriate physical therapy, Plaintiff should be able to walk and run for two hours daily for occupational and athletic activities within eight weeks. Tr. 333-34.
While Plaintiff was giving these explanations to treating providers, he provided a very different story in connection with his disability application; soon after filing for disability, on September 9, 2012, he completed a Function Report in which he conflated the cause of the injury to the left foot (both the puncture and the fracture) and to the right ankle (the Achilles rupture), stating that "both" were injured in the same incident "when I fell at work." Tr. 227.
For four months following Dr. Hsu's termination of treatment for the left foot based on it being fully healed and Elmwood's opinion that the right ankle would fully recover with eight weeks of rehabilitation treatment, there is a gap during which Plaintiff appears to have received no treatment (including no physical therapy) for either the left foot or the right ankle. Meanwhile on December 4, 2012, his disability claim was denied initially, Tr. 88-89, and on April 24, 2013, it was denied on reconsideration, Tr. 116-17.
The treatment lapse ended just before the reconsideration denial, on April 18, 2013, when Plaintiff went to the RIH emergency room complaining of pain in both the left foot and right ankle. Tr. 416. At this appointment, Plaintiff's statement to the attending physician (contrary to prior statements to treating providers but consistent with the disability application) conflated the occurrence of the two injuries, reporting that "one year ago [he] fell from . . . a height, and sustained a left ankle fracture as well as a right Achilles tendon rupture . . . normally works as a high-rise window washing foreman." Tr. 417. Finding no sign of infection or complication, the nurse practitioner acquiesced to Plaintiff's request for a prescription for pain medication and an out-of-work note just until he could make an appointment with an orthopedist.
Plaintiff's medical situation shifted on June 14, 2013, when Plaintiff went to the Kent Hospital emergency room claiming that he had been hit by a car while biking. Tr. 361. Based on his statement that he hit his head, twisted his back and his right foot was run over, x-rays were taken of his brain, back and right foot/ankle, all of which resulted in no acute findings. Tr. 365. On physical examination, the emergency room physician found no tenderness and normal range of motion in the back and mild tenderness and normal range of motion in the ankle and foot.
Two weeks after the bike collision, on June 28, 2013, Plaintiff initiated care with a chiropractor, Dr. Stephen Estner. Dr. Estner's initial assessment stated that Plaintiff had been asymptomatic at the time of the bike collision and that acute lumbosacral sprain, post-traumatic headaches and an acute right ankle sprain were all caused by the collision. Tr. 338-39. Until mid-August, Plaintiff saw Dr. Estner every few days for a range of chiropractic treatments, including moist heat, laser therapy, electrical muscle stimulation and chiropractic manipulation. Tr. 341-47. At each appointment, the Estner notes reflect that Plaintiff could not put any weight on the right ankle and that the pain either stayed the same or got worse. On July 19, 2013, Dr. Estner signed a revised opinion because "the patient informed me of a work-related injury that occurred on April 1, 2012, where he fell at work, fracturing his left foot and rupturing his right Achilles tendon." Tr. 344. The new opinion concludes that the bike collision exacerbated the prior injury to the right ankle.
Also in June 2013, Plaintiff began treatment at the Rhode Island Free Clinic, which did not prescribe medication or other treatment, but did refer him to a neurologist, Dr. Elaine Jones, as Dr. Hsu had recommended. Tr. 355. After lumbar spine and right ankle MRIs were completed in July 2013,
Tr. 357. He claimed he was admitted to RIH as a result of this serious injury.
With such a dramatic inconsistency among the five (at least) different versions of Plaintiff's story of how he hurt his foot and ankle, the only thing that can be said with certainty is that no one (except Plaintiff himself) knows what really happened in early April 2012, as a result of which, as Plaintiff now claims, he could no longer work. This mystery drew the Court's attention to three references in the record: (1) the statement in the application that "I have been accused or convicted of a felony" and that the matter is "continuing"; (2) the 2006 treating note indicating that Plaintiff was receiving substance abuse treatment after serving two and a half years in prison for beating his former girlfriend and her male friend; and (3) Dr. Hsu's May 3, 2013, note ("[h]as a pending legal issue which pt would like a note stating he would not have been able to run with bilateral foot/ankle injuries"), which Plaintiff dismissed as "an incident I had with an ex-girlfriend and it's all over with," when questioned about it by the ALJ. Tr. 51, 174, 273, 420. Based on these references, the Court accessed the public records for the Rhode Island state court's criminal docket.
This public record search revealed that, on April 17, 2012, just two weeks after the alleged onset of disability, Plaintiff was charged by the State of Rhode Island with felonious breaking and entering a dwelling/domestic, stalking/domestic, and wilful trespass.
Without accepting the truth of any of this information, the Court is nevertheless compelled to question whether this case might implicate the principle that an impairment caused during the course of committing a felony may not be considered in making a disability determination. 42 U.S.C. § 423(d)(6)(A) ("any physical or mental impairment which arises in connection with the commission by an individual . . . of an offense which constitutes a felony under applicable law and for which such individual is subsequently convicted . . . shall not be considered in determining whether an individual is under a disability");
Because, for the reasons discussed below, I am recommending that the Commissioner's motion to affirm be granted based on the ample record evidence supporting the ALJ's decision, whether this case involves felony-related impairments becomes pertinent only if this Court disagrees with my recommendation. If this Court remands the matter, I strongly recommend that the remand include a directive that further consideration should be given to whether any of the impairments are felony-related.
On December 3, 2012, SSA consulting physician Dr. Stephanie Green reviewed the record and opined that Plaintiff could occasionally lift and carry up to fifty pounds, frequently lift and carry up to twenty-five pounds and stand, walk or sit for six hours in an eight-hour workday, with limits on the use of right foot controls and climbing ramps, stairs, ladders, ropes, and scaffolds. Tr. 73. On the same day, SSA consulting psychologist Dr. John Warren considered the examining report of consulting psychologist Dr. Louis Turchetta in the context of the balance of the record and opined that Plaintiff has no severe mental impairments. Tr. 70-72. The examiners opined that Plaintiff's statements about his symptoms were only partially credible. Tr. 72.
At the reconsideration phase, on April 24, 2013, SSA reviewing physician Dr. Kenneth Nanian agreed with Dr. Green's RFC, except that he opined to greater postural limitation. Tr. 98-99. Dr. Nanian noted that Plaintiff's lack of recovery of range of motion in the right ankle appeared to be related to Plaintiff's failure to follow up on the recommendation that he engage in physical therapy and his persistent use of a splint. Tr. 99. SSA psychologist Dr. Janet Telford-Tyler affirmed Dr. Warren's conclusion of no severe mental impairments. Tr. 96-97. The reviewers assessed Plaintiff's statements regarding his symptoms only partially credible. Tr. 98.
On November 4, 2013, based on the July 2013 MRI that Dr. Jones found to show "no disc issues," confirmed by a spinal EMG that was "relatively unremarkable," Dr. Estner signed an opinion concluding that Plaintiff's moderately severe pain from a lumbar spine L3-4 annular tear and stenosis precluded the sustained concentration and productivity needed for full time employment and would cause Plaintiff to be off task for at least one hour a day and absent from work more than four days per month. Tr. 336. Although Dr. Estner noted that Plaintiff's right ankle MRI was negative, contrary to Dr. Hsu's October 2013 opinion that Plaintiff could ambulate without assistance or aids, Tr. 438, he opined that Plaintiff could not stand or walk at all; he also found that Plaintiff could sit for only four hours and could lift or carry twenty pounds frequently and twenty-five pounds occasionally with postural and other limitations. Tr. 337. Although Dr. Estner signed the form on November 4, 2013, he wrote that he had not actually seen Plaintiff at all since August 30, 2013. Tr. 337. Dr. Estner also submitted his June 28, 2013, opinion which links all of Plaintiff's impairments and more to the bike collision and his July 19, 2013, alteration of his medical opinion based on Plaintiff's statement to him that the left foot and right ankle were both injured in an April 2012 work-related fall. Tr. 344
Plaintiff applied for DIB and SSI, alleging disability beginning April 1, 2012. Tr. 66. Plaintiff's applications were denied initially, Tr. 88-89, and on reconsideration, Tr. 116-17. At a hearing on November 21, 2014, Plaintiff, represented by an attorney, and a VE testified. Tr. 34-35. On January 30, 2013, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Act from his alleged onset date through the date of the decision. Tr. 14-28. On June 8, 2015, the Appeals Council denied Plaintiff's request for review, Tr. 1-3, making the ALJ's decision the Commissioner's final decision subject to judicial review. 42 U.S.C. § 405(g).
Plaintiff's motion for reversal rests on two arguments — that the ALJ's finding at Step Five is not supported by substantial evidence and that the ALJ's RFC finding is not supported by substantial evidence. The latter argument is based on Plaintiff's challenge to the ALJ's rejection of Dr. Estner's opinion as worthy of "minimal/less probative weight" and to the ALJ's determination that Plaintiff's statements were "not entirely credible." Tr. 21, 25.
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — that is, the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion.
The determination of substantiality is based upon an evaluation of the record as a whole.
The Court must reverse the ALJ's decision on plenary review, if the ALJ applies incorrect law, or if the ALJ fails to provide the Court with sufficient reasoning to determine that the law was applied properly.
The Court may remand a case to the Commissioner for a rehearing under Sentence Four of 42 U.S.C. § 405(g); under Sentence Six of 42 U.S.C. § 405(g); or under both sentences.
To remand under Sentence Four, the Court must either find that the Commissioner's decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim.
The law defines disability as the inability to do 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 twelve months. 42 U.S.C. § 416(I); 20 C.F.R. § 404.1505. The impairment must be severe, making the claimant unable to do previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-1511.
Substantial weight should be given to the opinion, diagnosis and medical evidence of a treating physician unless there are good reasons to do otherwise.
Where a treating physician has merely made conclusory statements, the ALJ may afford them such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments.
A treating source who is not a licensed physician or psychologist is not an "acceptable medical source." 20 C.F.R. § 404.1513; SSR 06-03p, 2006 WL 2263437, at *2 (Aug. 9, 2006). Only an acceptable medical source may provide a medical opinion entitled to controlling weight to establish the existence of a medically determinable impairment. SSR 06-03p, 2006 WL 2263437, at *2. An "other source," such as a chiropractor or nurse practitioner, is not an "acceptable medical source," and cannot establish the existence of a medically determinable impairment, though such a source may provide insight into the severity of an impairment, including its impact on the individual's ability to function.
The ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. 20 C.F.R. § 404.1527(d). The ALJ is not required to give any special significance to the status of a physician as treating or non-treating in weighing an opinion on whether the claimant meets a listed impairment, a claimant's residual functional capacity ("RFC"),
The ALJ must follow five steps in evaluating a claim of disability.
In determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments and must consider any medically severe combination of impairments throughout the disability determination process. 42 U.S.C. § 423(d)(2)(B). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled.
Where an ALJ decides not to credit a claimant's testimony, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding.
A lack of a sufficiently explicit credibility finding becomes a ground for remand when credibility is critical to the outcome of the case.
"Pain can constitute a significant non-exertional impairment."
Plaintiff's Step Five challenge is a throwaway argument. He contends that this matter should be remanded because the ALJ's hypothetical to the VE asked about an individual who "would be able to lift/carry up to twenty pounds," Tr. 62, while the final RFC finding provides that Plaintiff "can lift 20 pounds occasionally and 10 pounds frequently," Tr. 24.
If the omission of "occasionally" from the hypothetical is error, it is plainly harmless. First, as the Commissioner points out, the jobs cited by the VE in response to the hypothetical (solderer or assembler), Tr. 63, are both described in the Dictionary of Occupational Titles as requiring light exertion, which is defined as "[e]xerting up to 20 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or up to 10 pounds of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects."
Plaintiff contends that, in arriving at his physical and mental RFC findings, the ALJ improperly evaluated the medical evidence on his own and erroneously rejected both the opinions of the treating chiropractor, Dr. Estner, and Plaintiff's statements about his limitations.
Plaintiff's mental RFC challenge rests on the argument that the ALJ wrongly rejected the GAF score of 50 in the examining report of Dr. Turchetta and instead performed an improper lay evaluation of Plaintiff's complaints of depression. This argument fails because the interpretation of the significance of Dr. Turchetta's findings was performed by the two experts, the SSA psychologists, Dr. Warren and Dr. Telford-Tyler. Tr. 71-72, 96-97. The ALJ adopted their interpretations in finding that Plaintiff did not have a severe mental impairment; he also properly considered the evidence of Plaintiff's lack of any voluntary
Plaintiff's challenge to the ALJ's physical RFC rests on three prongs. First, he claims that the SSA physicians reviewed the record before Plaintiff's lumbar spine was x-rayed in June 2013 and was imaged in July 2013.
None of these arguments is compelling.
As to the first, Plaintiff is right that the reviewing experts did not see the June 2013 x-ray or the July 2013 MRI of the lumbar spine. However, the ALJ committed no error in his treatment of this new evidence. For starters, as the ALJ correctly noted, the medical interpretation of the June 2013 lumbar spine x-ray is unambiguous: "normal examination," Tr. 366; consistently, the Kent Hospital staff who ordered and reviewed the x-ray interpreted it as "LS spine: neg." Tr. 365-67. Similarly, while the July 2013 MRI revealed disc bulges with mild multilevel central stenosis, a left lateral L3-4 annular tear, and mild foraminal narrowing, Tr. 351-52, Dr. Jones interpreted this MRI and noted "no disc issues"; her EMG testing included an examination of Plaintiff's lumbar spine and she found the results to be "relatively unremarkable." Tr. 359. She recommended no treatment except for a low dose of Gabapentin and follow-up in two to three months.
Plaintiff's second basis for attacking the ALJ's physical RFC — that the minimal weight afforded to Dr. Estner's opinion clashes with the requirement that a non-acceptable source should be considered if the treating relationship is longstanding and the opinion is well supported and consistent with the other evidence in the record — founders on the profound inconsistency between Dr. Estner's opinion and all of the contemporaneous treating evidence from Kent Hospital, Dr. Jones and Dr. Hsu. To note just one example, on June 28, 2013, Dr. Estner opined that Plaintiff had "[a]cute lumbosacral sprain/strain," Tr. 339; this contrasts with the Kent Hospital finding of two weeks prior that Plaintiff's lumbar spine was normal and that the bike collision had caused "no acute disease." Tr. 365. This evidence is more than sufficient to provide a proper evidentiary foundation for the ALJ's decision to afford the Estner opinion minimal weight.
The final task is to address Plaintiff's argument that the ALJ erred in discounting his credibility. Here too, there is no error. While Plaintiff is right that the factors in SSR 96-7p should guide the ALJ's credibility determination, his challenge fails because that is exactly what the ALJ did. Specifically, he noted the lack of any evidence to support the claim of disability based on meningitis, he reviewed Plaintiff's many daily activities as described in one or the other of the two Function Reports, and he carefully considered the opinions of acceptable medical treating sources that the left foot was fully healed and the right ankle had largely healed, leaving residual weakness but permitting ambulation. Tr. 25. The ALJ noted that these conditions had not deterred Plaintiff from biking, resulting in the June 2013 collision. And the ALJ carefully examined the post-collision evidence, including the Kent Hospital finding that the incident did not result in any "acute disease," as well as the records of Dr. Jones and Dr. Hsu finding Plaintiff was able to ambulate without any assists and was not in need of any continued treatment beyond a low dose of medication. Tr. 26, 26 n.9. Mindful of the deference to which the ALJ's credibility determination is entitled,
To summarize, other than Dr. Estner's discredited opinion and Plaintiff's own incredible statements, Plaintiff does not point to any evidence establishing that his back pain, left leg, or the Achilles rupture in his ankle caused greater limitations than the ALJ assessed.
Based on the foregoing, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 11) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 12) be GRANTED. Further, and only if this Court does not adopt my recommendation but remands the matter for further consideration, I recommend that the remand include a directive that further consideration should be given to whether any of the allegedly disabling impairments are felony-related.
Any objection to this report and recommendation must be specific and must be served and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting party.
