HILLMAN, District Judge.
This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration (the "Commissioner" or "SSA") denying the application of Lori Ann Bourinot ("Plaintiff") for Social Security Disability Insurance Benefits and Supplemental Security Income. Plaintiff has filed a motion for judgment on the pleadings (Docket No. 11), and the Commissioner has filed a cross-motion seeking an order affirming the decision of the Commissioner (Docket No. 15). For the reasons set forth below, Plaintiff's motion is
On November 7, 2011, Plaintiff filed concurrent applications for disability insurance benefits under Title II of the Social Security Act and supplemental security income under Title XVI of the Social Security Act. Social Security Administration Record of Social Security Proceedings, Docket No. 8, at 32 (hereinafter "(R. ___)"). Plaintiff alleges that she has been
Plaintiff was born on July 25, 1965, making her 43 years old on the date of alleged onset of disability. (R. 65). She is a high school graduate, and completed nursing school in 1996. (R. 68). Her only past relevant work was as a registered nurse. (R. 87).
The records detailing Plaintiff's medical treatment for PTSD, depression, anxiety, fibromyalgia and arthritis are from two primary sources: Newton-Wellesley Hospital and Union Square Family Health Center.
Plaintiff treated with primary care physician Dayna Anderson, M.D. at Newton-Wellesley Hospital since at least 2004. (R. 1363-64). At a routine physical on March 11, 2009, Plaintiff was prescribed Celexa and Xanax for anxiety and Ambien for insomnia. (R. 880). The treatment notes also indicate that Plaintiff was prescribed medication for arthritis through an outside facility. Id.
In March 2010 Plaintiff was admitted to the emergency room at Newton-Wellesley Hospital for treatment of a back injury after falling off the back of her boyfriend's motorcycle. (R. 585). She was diagnosed with a contusion of the left back and buttock, as well as pneumonia. (R. 578). She was discharged with a prescription for vicodin and ibuprofen. (R. 594). At a follow-up appointment with Dr. Anderson on March 12, 2010, Plaintiff indicated that she still had significant tenderness and pain while rolling over in bed, but felt better while walking. (R. 594). At a second follow-up on March 24, Plaintiff complained of worsening lower back pain. (R. 611). She was referred to an orthopedist, Dr. Kenneth Polivy, M.D., who diagnosed her with lumbar mechanical back pain and provided Plaintiff with a back brace to wear as needed. (R. 615). A subsequent MRI indicated that Plaintiff had sustained a transverse sacral fracture at the S2-S3 level. (R. 613-14).
On May 16, 2010, Plaintiff was treated at the Newton-Wellesley emergency room following a fall down a flight of stairs. (R. 620). Plaintiff had been drinking and sustained an injury to her head and scalp, but was discharged the same day with instructions to ice the sore area for 20 minutes at a time. (R. 622). Plaintiff returned to the emergency room on July 3, 2010, for treatment of a bruised right eye and swollen cheek bone. (R. 498-501). Plaintiff stated that she suffered the injury while playing volleyball and denied domestic abuse. (R. 499). Plaintiff's right eye was swollen, vision was blurry, and she had abrasions on one of her knuckles and left elbow. Id.
On July 30, 2010, Plaintiff was seen in the Newton-Wellesley psychiatry department by Dr. Sharon Salter, M.D., to establish treatment for Plaintiff's anxiety and situational stress. (R. 674). Plaintiff reported a history of physical, verbal and sexual abuse by her ex-husband. Id. She also reported that she lost custody of her daughter, which prompted a suicide attempt in December 2009.
At a follow-up appointment with Dr. Salter on August 16, 2010, Plaintiff reported that she was upset about custody issues with her daughter. (R. 676). She described her mood as "sad most of the time," and stated that she suffers mild panic attacks. However, her anxiety was manageable and her sleep was "ok with Seroquel." Id. Dr. Salter noted that Plaintiff was alert and oriented, her appearance and speech were normal, and her GAF was 50. Id. During a visit on September 16, 2010, Plaintiff reported worsening symptoms. (R. 678). She stated that she had not gotten out of bed for the last three weeks following a job offer being rescinded. Id. Plaintiff's sleep was "horrible" and the prescribed medication was no longer working. Id. She said that she enjoys going out with her boyfriend at night but during the day she does not leave the house. Id. Dr. Salter noted that Plaintiff's affect seemed down and reserved, but she otherwise presented as normal. Id. Her GAF was 45. Id.
Plaintiff was admitted to the Newton-Wellesley emergency room on September 23, 2010 for facial fractures and other injuries sustained in an assault by her boyfriend. (R. 490). She was discharged the same day with instructions to apply ice to the affected areas, and to follow up with her facial plastic surgeon, Dr. Jaimie DeRosa, M.D.
Plaintiff continued to see Dr. Salter regularly over the course of the next year and a half. On October 19, 2010, Plaintiff reported that her mood, energy, and appetite
On December 20, 2010, Plaintiff reported to Dr. Salter that it had been a "bad month," due to situational stress regarding her daughter and ex-boyfriend. (R. 686). However, her mood was better and her appetite was good. Id. She said she had been more active and "is doing more things now," such as taking care of her birds, cooking, and other chores around the house. Id. Still, though, Plaintiff said she lacked motivation and "has to force herself to get out of the house." Id. Dr. Salter increased Plaintiff's dosage of Wellbutrin. (R. 687). Plaintiff's GAF was 60. Id. On January 19, 2011 Plaintiff stated that her mood was "ok" and that she was getting out of bed more, but her sleep was still not good. (R. 688). She said was feeling better than in the past, and had a GAF of 65. (R. 688-89). She was continued on existing medications. (R. 689). On February 15, 2011 Plaintiff reported continued situational stress, a good appetite, and that her sleep was "broken." (R. 690). She felt the Lorazepam was no longer effective, and Dr. Salter discontinued the prescription. (R. 691). Plaintiff's GAF was 65 and she was prescribed Diazepam. Id. On March 8, 2011, Plaintiff again reported situational stress, her mood was anxious, and her sleep was "off and on." (R. 692). Her GAF was still 65. Id. On April 29, 2011, Plaintiff reported that she was feeling better and therefore decided to self-taper off some of her medications. (R. 694). Her anxiety was "a little here and there," and sleep was "iffy." Id. Dr. Salter noted that Plaintiff seemed stable. Id. Plaintiff's GAF was 65. (R. 695).
On June 24, 2011, however, Plaintiff stated that her mood was not good and that she was spending 4-5 days per week in bed. (R. 696). She would get out of bed only to feed her birds or spend time with her boyfriend. Id. Dr. Salter noted that her worsened mood coincided with a decrease in the medications she was taking. Id. Plaintiff's GAF was 55, and she was restarted on Ambien and Wellbutrin. (R. 697). On July 15, Plaintiff saw Dr. Salter and the increased medication appeared to be helping. (R. 698). Her mood was "ok," anxiety was "so/so," and sleep was "not good." Id. Her GAF was 65. Id. At appointments with Dr. Salter in August and October 2011, Plaintiff reported more of the same and was continued on existing medications. (R. 700-703). In December 2011, Plaintiff stated that her mood was "extremely bad" and her anxiety had increased. (R. 704). However, she also said that she felt her medication was effective and planned to continue the current regimen. Id. Her GAF was 60. (R. 705).
Plaintiff was last seen by Dr. Salter in January and March of 2012. On January 10, Plaintiff reported situational stress regarding her son's incarceration and custody issues with her daughter. (R. 706). Her mood was "ok, not great," and she was not sleeping well due to anxiety over her daughter. Id. She had a good appetite, and was able to leave the house to go to appointments and go out with her boyfriend for activities like playing pool. Id.
Plaintiff saw Dr. Anderson for a physical exam on August 23, 2011. (R. 872-73). Dr. Anderson noted that Plaintiff was in counseling due to her history as a domestic abuse victim, and would likely need counseling indefinitely. Id. Dr. Anderson also observed that Plaintiff was seeing her psychiatrist regularly for medication. Id.
Plaintiff has treated with multiple providers at Union Square Family Health Center since 2011. The earliest Union Square records indicate that she saw primary care physician Jonathan Burns, M.D., on November 5, 2011, complaining of abdominal pain. (R. 937). It was noted that Plaintiff had a fifteen year history of domestic abuse and was seeing Dr. Salter for her depression and anxiety. Id. During several visits with Dr. Burns and other providers, Plaintiff complained of situational stress related to her children, poor sleep, inability to leave the house, and low energy. (R. 936-955). She also reported persistent lower back pain. Id. However, Dr. Burns consistently found her depression and fibromyalgia to be "stable." (R. 938, 943, 945-46, 949, 951-52, 955-56, 1340-42). In June of 2012, Plaintiff reported to Dr. Burns that her fibromyalgia was doing well on her current medication, and she was feeling well. (R. 1338). In July she stated that she was feeling well and her fibromyalgia was feeling better overall (R. 1341).
At her visit with Dr. Burns on April 3, 2012, Plaintiff reported that she was injured during an altercation with her son. (R. 956). Dr. Burns referred Plaintiff for short-term crisis counseling with therapist Zorangeli Ramos, Ph.D. (R. 958-59). Plaintiff began her counseling with Dr. Ramos on April 19, 2012. (R. 1301). She complained of situational stress related to her son and ex-husband. (R. 956). She described difficulty sleeping, poor appetite, low energy and interest, nightmares, feelings of guilt, and depressed and anxious mood. (R. 957). She was diagnosed with depression and anxiety and had a GAF of 51. Over the course of three sessions, Dr. Ramos attempted to discuss and normalize Plaintiff's emotional difficulties in light of her trauma history. (R. 1301). The treatment also involved safety planning given Plaintiff's tendency to self-harm, and Dr. Ramos remarked that Plaintiff would continue to benefit from continued psychotherapy and medication. (R. 1302).
At primary care visits in August and October of 2012, Plaintiff complained of depression and insomnia but her condition appeared generally stable. (R. 1343-45). In November it was noted that Plaintiff had longstanding depression related to "life circumstances" and was battling chronic pain; however, the provider noted that she "seems pretty stable at this point." (R. 1346-47). She was continued on her prescriptions for Ambien, Celexa, and Wellbutrin, and discontinued on Valium. Id.
Plaintiff began seeing a new primary care physician, Rachel Vogel, M.D., on January 3, 2013. At her first visit Dr. Vogel noted that Plaintiff was alert and oriented and in no apparent distress. (R. 1355). On February 6, 2013, Plaintiff reported that she was still feeling very depressed,
The record also includes opinions of several doctors and health professionals who have treated, examined, or reviewed Plaintiff's medical conditions. The relevant opinions are summarized below.
On April 21, 2010, Dr. Scott Andrews, a psychologist, examined Plaintiff on behalf of the Massachusetts Department of Children and Families to assess her parenting capacity. (R. 1256-70). He diagnosed Plaintiff with PTSD and dependent personality disorder. (R. 1286-87). Dr. Andrews opined that Plaintiff was capable of average performance with respect to cognitive functioning. (R. 1284). She had "extremely high elevations" on the Traumatic Stress and Stress scales, as well as "moderate elevations" on the Depression, Depression and Paranoia Scales. (R. 1285). These scores were likely attributable to the domestic abuse she has experienced. Id. With respect to her parenting capacities, Dr. Andrews found no evidence that Plaintiff would be unable to provide adequate food, clothing, and shelter for herself and her daughter, or that her mental illness would interfere with her ability to provide adequate care. (R. 1286). Plaintiff's GAF score was 60, and Dr. Andrews opined that Plaintiff could become fit to regain custody of her daughter if she became involved in weekly therapy for adult survivors of abuse, remained in close contact with the Department of Children and Families, considered anxiolytic or antidepressant medication, and participated in family therapy. (R. 1289-90).
On November 22, 2011, Dr. Anderson completed a multiple impairment questionnaire in which she provided her medical opinion about the severity of Plaintiff's symptoms and functional limitations. (R. 892). Plaintiff was diagnosed with depression, PTSD and fibromyalgia, with symptoms of fatigue, joint and muscle pain, depression and anxiety. (R. 892-93). Dr. Anderson rated the severity of Plaintiff's pain as a 7 out of 10, and fatigue as a 10 out of 10. (R. 894). In response to questions regarding Plaintiff's functional capacity in a normal work environment, Dr. Anderson opined that Plaintiff could sit for only two hours per day, stand for two hours per day, occasionally lift 10-20 pounds and occasionally carry 5-10 pounds. (R. 894-95). Dr. Anderson further stated that Plaintiff experiences constant difficulties with attention and concentration, and is incapable of handling even low work stress. (R. 897).
Dr. Burns completed a multiple impairment questionnaire on March 2, 2012. (R. 1433-40). Plaintiff was diagnosed with fibromyalgia, depression and PTSD, which causes depression and chronic pain in her lower back and joints. (R. 1433). Dr. Burns opined that Plaintiff's pain was a 7 or 8 out of 10, and her fatigue was 10 out of 10. (R. 1435). Plaintiff would be able to sit for only two hours during a regular workday, and stand or walk for less than one hour. Id. She could occasionally lift and carry 0-5 pounds, but nothing more.
Dr. Salter completed a psychiatric impairment questionnaire on March 6, 2012. (R. 1443-49). Plaintiff was diagnosed with anxiety, depression and PTSD, with primary symptoms of depression, low energy, staying in bed, isolating, and lack of interest. (R. 1443-44). In response to questions about Plaintiff's capacity to sustain mental activity over a normal work schedule, Dr. Salter opined that Plaintiff's ability to understand and remember work procedures and instructions was no more than moderately limited. (R. 1446). Plaintiff's ability to sustain concentration and persistence was also no more than moderately limited, except Dr. Salter stated that Plaintiff was markedly limited in her ability to complete a normal workweek without interruptions from her psychologically based symptoms. (R. 1446-47). With respect to social interactions, Dr. Salter stated that Plaintiff was markedly limited in her ability to interact with the general public, work supervisors, and co-workers. (R. 1447). Although markedly limited in her ability to travel to unfamiliar places, Dr. Salter opined that Plaintiff was otherwise no more than moderately limited when it comes to adapting to changes generally. (R. 1447-48). Dr. Salter also opined that Plaintiff is likely to be absent from work as a result of her impairments more than three times per month, and is incapable of even low work stress. (R. 1449-50).
On March 8, 2012 Dr. M.A. Gopal completed an examination of Plaintiff's medical records as a state agency medical consultant. (R. 168-189). Dr. Gopal found that Plaintiff's affective and anxiety-related disorders did not cause any restriction in her activities of daily living, and only mild restrictions on her ability to function socially and maintain concentration, persistence and pace. (R. 174). With respect to her exertional limitations, Dr. Gopal opined that Plaintiff could occasionally lift or carry 20 pounds, frequently lift or carry 10 pounds, stand or sit for 6 hours in an 8-hour work day, and is unlimited in her ability to push and pull. (R. 175-76). Although Dr. Gopal noted that Plaintiff has fibromyalgia with chronic body aches and joint pain, the assessment noted that she does not have postural, manipulative, visual, communicative or environmental limitations, and concluded that she can perform light work. (R. 176).
Dr. Vogel completed a multiple impairment questionnaire on June 18, 2013. (R. 1415-22). Plaintiff was diagnosed with severe depression, anxiety, PTSD, fibromyalgia and chronic hip and lower back arthritis, causing symptoms of lower back pain, bilateral groin and hand pain, fatigue, constant anxiety, and low motivation. (R. 1415-16). Dr. Vogel rated Plaintiff's pain as ranging from 3 to 10 on a scale of 10, and fatigue as a 7. (R. 1417). She opined that Plaintiff would be unable to sit, stand or walk for more than an hour during a regular work day, and that Plaintiff could
On June 21, 2013, domestic violence advocate Maria Pizzimenti completed a psychiatric/psychological impairment questionnaire. (R. 1423-30). Ms. Pizzimenti, who had worked with Plaintiff at an organization called Reach Beyond Domestic Violence, described Plaintiff's primary symptoms as depression, fatigue, isolation, poor socialization, and anxiety attacks. (R. 1425). Ms. Pizzimenti noted that Plaintiff was generally no more than moderately limited in her capacity for sustained concentration or persistence, except that she was markedly limited when it came to her ability to stick to a schedule, maintain regular attendance, be punctual, and complete a full, normal workweek without interruption. (R. 1426-27). Ms. Pizzimenti further expressed the opinion that Plaintiff has marked limitations on her ability to interact socially and adapt to changes in the work setting. (R. 1427-28). Finally, Ms. Pizzimenti opined that Plaintiff would be incapable of even low work stress, and would likely be absent from work more than three times per month due to her impairments. (R. 1429-30).
Plaintiff appeared before ALJ Paul Carter on July 23, 2013, in Boston, Massachusetts, and was represented by Carolyn Costello, a non-attorney representative. (R. 60). After answering questions about her background and past relevant work, Plaintiff testified that her anxiety is the most serious condition that prevents her from working. (R. 71). Plaintiff stated that she also has difficulty sleeping, which causes constant fatigue, as well as arthritis in her hands, hips and back that requires physical therapy twice a week. (R. 71-72).
Plaintiff explained that she was currently seeing a psychiatrist named Dr. Winters, and that she previously saw Dr. Salter. (R. 72-73). On "bad days," which occur 4-5 days per week, Plaintiff cannot bring herself to get out of bed and spends almost the entire day in her room. (R. 74-75, 82). When she goes to the grocery store or laundromat she is always accompanied by her boyfriend, because she feels she cannot go alone. (R. 74-75). She doesn't like crowds and distrusts people, especially men. (R. 83). Plaintiff testified that her psychological symptoms can be triggered very easily, and that she doesn't believe she could deal with coworkers or show up to a workplace five days per week. (R. 83-84). She explained that during her last job, she often couldn't motivate herself to do her work. (R. 84).
In response to questions from the ALJ about her sleeping difficulties, Plaintiff described how she tries to go to bed around 8:00 or 9:00 PM, but usually wakes by 1:00 AM and watches television throughout the night. (R. 74). Plaintiff testified that she only has one alcoholic drink per week, which was a significant change from the previous year when she was drinking two to three liters of hard liquor per week. (R. 73-74). Plaintiff explained that she drank heavily for about two or two and a
With respect to her physical symptoms, Plaintiff testified that she can only walk a quarter of a mile, or "a couple blocks," before her back begins to hurt, due to a motorcycle accident in 2010. (R. 68, 76-77). Her back had become increasingly painful in the past six months, to the point where she could only stand for about 10-15 minutes and sit for 30-45 minutes. (R. 77-78). She further stated that she can only lift about five pounds, doesn't bend over well anymore, and has difficulty walking up stairs. (R. 79-80).
The ALJ also took testimony from vocational expert James Scorzelli, Ph.D. Dr. Scorzelli testified that Plaintiff had past relevant work as a licensed, registered nurse, a medium skill job. (R. 87-88). Conceding that Plaintiff could not perform her past work, the ALJ inquired whether there are jobs in significant numbers for an individual who could perform light work, with the additional limitations of "performing only simple, repetitive tasks not working in tandem with coworkers and just having basic, momentary, casual contact,... withstand[ing] an average amount of stress." (R. 89). In response, Dr. Scorzelli testified that such an individual could be a mail clerk (5,600 mail clerks in Massachusetts and 20,000 nationwide), light housekeeper (45,000 in Massachusetts and 900,000 nationwide) or a gluer (550 in Massachusetts and 3,000 nationwide). (R. 90). Dr. Scorzelli also stated that because all of these jobs involve private employers, the individual could miss no more than eight days of work per year. Id. He further testified that if the person were to be off-task for more than 20 percent of the work day, or if they required more than two fifteen-minute breaks and a lunch break due to their inability to get back to work, the person would be unemployable. (R. 91).
To be found eligible for either disability insurance benefits or supplemental security income, an applicant 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." See 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A).
If the claimant establishes that the impairment is severe, the Commissioner proceeds to step three and determines whether the impairment meets or equals one of the listings in the Listing of Impairments, 20 C.F.R. § 404, subpart P, Appendix
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of March 1, 2009. (R. 34). At step two, the ALJ found that Plaintiff had severe impairments of PTSD, depression, anxiety and arthritis. Id. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. In reaching this conclusion, the ALJ considered listings 12.04 (affective disorders) and 12.06 (anxiety-related disorders), including whether "paragraph B" and "paragraph C" criteria were satisfied. Id.
Evaluating the paragraph B criteria for each listing,
At step four, the ALJ found that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b),
(R. 37). In making this determination, the ALJ found that Plaintiff's subjective descriptions of her symptoms were not fully credible in light of other objective medical evidence in the record. (R. 48-49). Further, the ALJ had "difficulty giving significant weight" to the opinions of Dr. Anderson, Dr. Burns, and Dr. Vogel. (R. 49). The ALJ gave "great weight" to the opinion of Dr. Gopal and the evaluation by Dr. Andrews, "limited weight" to the opinion of Dr. Salter, and "little weight" to the assessment by Maria Pizzimenti. Id.
Given Plaintiff's RFC, the ALJ found that Plaintiff was unable to perform any past relevant work. Id. At step five, however, the ALJ found that, considering Plaintiff's age, education, work experience, and residual functional capacity, Plaintiff can perform jobs that exist in significant numbers in the national economy. (R. 51). This conclusion was based on testimony by the vocational expert that, given the additional restrictions on Plaintiff's ability to perform light work, she could still perform the requirements of jobs such as mail clerk, light housekeeper, and gluer. (R. 51-52). Therefore, Plaintiff was not disabled. (R. 52).
Plaintiff asserts that the ALJ's decision should be reversed for three reasons: the ALJ improperly weighed the medical opinion evidence; the ALJ improperly evaluated Plaintiff's credibility; and the ALJ improperly relied on flawed vocational expert testimony.
Review by this Court is limited to whether the ALJ's findings are supported by substantial evidence and whether the ALJ applied the correct legal standards. Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996); see also Rodriguez v. Sec'y of
Reversal of an ALJ's decision by this Court is warranted only if the ALJ made a legal error in deciding the claim, or if the record contains no "evidence rationally adequate ... to justify the conclusion" of the ALJ. Roman-Roman v. Comm'r of Social Security, 114 Fed.Appx. 410, 411 (1st Cir.2004); see also Manso-Pizarro, 76 F.3d at 16. If the Commissioner's decision is supported by substantial evidence, it must be upheld even if the record could arguably support a different conclusion. See Evangelista v. Sec'y of Health & Human Servs., 826 F.2d 136, 144 (1st Cir. 1987).
Plaintiff first argues that in determining Plaintiff's RFC, the ALJ improperly weighed the medical opinions of Plaintiff's treating sources and the non-examining state agency consultant.
An ALJ must "always consider the medical opinions in [the] case record," 20 C.F.R. §§ 404.1527(b); 416.927(b), and SSA regulations prioritize the opinions of a claimant's treating sources. See 20 C.F.R. §§ 404.1527(c)(1); 416.927(c)(1) (stating that "[g]enerally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you"). The treating source rule provides that the ALJ should give "more weight" to the opinions of treating physicians because "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations." 20 C.F.R. § 404.1527(c)(2); 416.927(c)(2). Controlling weight will be given to a treating physician's opinion on the nature and severity of a claimant's impairments if the opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record. Id.
In certain circumstances, however, the ALJ does not have to give a treating physician's opinion controlling weight. Arroyo v. Sec'y of Health & Human Servs., 932 F.2d 82, 89 (1st Cir.1991) (observing that "[t]he law in this circuit does not require ALJs to give greater weight to the opinions of treating physicians"). The regulations allow the ALJ to discount the weight given to a treating source opinion where it is inconsistent with other substantial evidence in the record, including treatment notes and evaluations by examining and non-examining physicians. Arruda v. Barnhart, 314 F.Supp.2d 52, 72 (D.Mass. 2004); 20 C.F.R. § 404.1527(c)(2)-(4); 416.927(c)(2)-(4); see also SSR 96-2p, 1996 WL 374188, at *2. Where controlling
With respect to the treating source opinions, Plaintiff asserts that the ALJ improperly evaluated the questionnaires submitted by (1) Plaintiff's primary care physicians; and (2) Plaintiff's psychiatrist.
The ALJ "ha[d] difficulty giving significant weight" to the opinions of Dr. Anderson, Dr. Burns, and Dr. Vogel regarding Plaintiff's physical limitations. (R. 49). In support of this conclusion, the written decision recounts the records from Plaintiff's visits with each of her primary care physicians. (R. 37-49). The ALJ found that the symptoms reported by Dr. Anderson were inconsistent with her own treatment records, which suggested that Plaintiff's physical pain was relieved with medication. (R. 49). Similarly, the ALJ discounted the opinion of Dr. Burns because "nothing in [the] treatment records supports" the functional limitations he described in the impairment questionnaire. Id. The ALJ found Dr. Vogel's assessment of Plaintiff's limitations due to arthritis undermined by the fact that Vogel's treatment notes do not contain references to Plaintiff experiencing severe arthritic pain. Id. Further, the decision casts doubt on Dr. Vogel's opinion that Plaintiff experienced limitations due to back pain, insomnia, and depression prior to 2004, because Plaintiff had excellent earnings records through 2007. (R. 48).
Plaintiff raises two objections to the ALJ's treatment of these opinions. First, Plaintiff asserts that the physicians' treatment notes are not inconsistent with their opinions of Plaintiff's severe physical limitations, and therefore should have been given controlling weight pursuant to 20 C.F.R. § 404.1527(c)(2) and 416.927(c)(2). Second, Plaintiff contends that even if the ALJ did not err by failing to give the physician opinions controlling weight, the ALJ failed to consider the factors listed in 20 C.F.R. § 404.1527(c)(2)-(6) and 416.927(c)(2)-(6). Both arguments fail.
First, the ALJ did not improperly evaluate the physicians' treatment notes. To be sure, treatment records are not always reliable indicators of a claimant's functional limitations, due to "the distinction between a doctor's notes for purposes of treatment and that doctor's ultimate opinion on the claimant's ability to work." Brownawell v. Comm'r of Soc. Sec., 554 F.3d 352, 356 (3d Cir.2008); see also Orn v. Astrue, 495 F.3d 625, 634 (9th Cir.2007) (stating that "[t]he primary function of medical records is to promote communication and recordkeeping for health care personnel — not to provide evidence for disability determinations"). In this case, however, there is a steady, significant disconnect between Plaintiff's symptoms as described in the records and the limitations described in the primary care physicians' impairment questionnaires. Pursuant to SSA regulations, such inconsistency permits the ALJ to discount the treating physician opinions.
Plaintiff's second objection to the ALJ's evaluation of the treating source opinions — that the ALJ failed to consider the factors listed in 20 C.F.R. § 404.1527(c)(2)-(6) and 416.927(c)(2)-(6) — is no more persuasive. As described above, the ALJ's discussion of Plaintiff's treatment notes and other evidence in the record explicitly considers factors (c)(3) and (c)(4): the degree to which the opinion is supported by relevant evidence and the consistency of the opinion with the record as a whole. The decision also describes Plaintiff's medical treatment history in considerable detail, including details of individual appointments with Dr. Anderson, Dr. Burns, and Dr. Vogel dating back to at least 2009. (R. 38-46). Implicit in this description is the ALJ's consideration of the remaining factors: the treatment relationship between the claimant and the physician, the practice specialty of the physician, and "other" relevant factors. 20 C.F.R. § 404.1527(c)(2), (5), (6); 416.927(c)(2), (5), (6).
Furthermore, the regulations do not require an ALJ to expressly state how each factor was considered, only that the decision provide "good reasons" for the weight given to a treating source opinion. 20 C.F.R. § 404.1527(c)(2); 416.927(c)(2). The ALJ provided specific reasons, supported by evidence in the case record, for his decision to discount each of the opinions of Dr. Anderson, Dr. Burns, and Dr. Vogel. The reasoning is sufficiently specific to inform both the claimant and this reviewing Court of how each treating source opinion was evaluated. Remand is not required where, as here, "it can be ascertained from the entire record and the ALJ's opinion that the ALJ `applied the substance' of the treating physician rule." Botta v. Barnhart, 475 F.Supp.2d 174, 188 (E.D.N.Y.2007) (quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004)).
The ALJ gave "limited weight" to the questionnaire submitted by Dr. Salter, Plaintiff's treating psychiatrist. Dr. Salter opined that Plaintiff is markedly limited in her ability to interact with others and travel to unfamiliar places, and is likely to be absent more than three times per month from work. (R. 1446-50). The ALJ discounted Dr. Salter's opinion because he found it inconsistent with Dr. Salter's own treatment notes and other evidence regarding Plaintiff's activities. (R. 50).
Plaintiff's primary objection to the weighing of Dr. Salter's opinion is based on the ALJ's reliance on GAF scores. The GAF scale provides a "`rough estimate' of an individual's psychological, social, and occupational functioning." Vargas v. Lambert, 159 F.3d 1161, 1164 n. 2 (9th Cir. 1998). However, it has recently fallen into disfavor as an assessment tool. As Plaintiff points out, "[d]ue to concerns about subjectivity in application and a lack of clarity in the symptoms to be analyzed, the [American Psychiatric Association ("APA")] abandoned the GAF score in its recently published fifth edition of the Diagnostic and Statistical Manual of Mental Disorders." Kroh v. Colvin, No. 13-CV-01533, 2014 WL 4384675, *17 (M.D.Penn. Sept. 4, 2014). As a result of the concerns identified by the APA, the SSA published Administrative Memorandum AM-13066 to guide adjudicators on how to consider GAF ratings. See Hall v. Colvin, 18 F.Supp.3d 144, 153 (D.R.I.2014). The memorandum, dated July 22, 2013, indicates that the SSA will continue to receive and consider GAF scores just as it would other opinion evidence, but scores must have supporting evidence to be given significant weight. Kroh, 2014 WL 4384675, at *18. The memorandum explains:
Lane v. Colvin, No. C13-5658-MJP, 2014 WL 1912065, *9 (W.D. May 12, 2014) (quoting AM-13066). Further, the subjective nature of the ratings means that "adjudicators cannot draw reliable inferences from the difference in GAF ratings assigned by different clinicians or from a single GAF score in isolation." Hall, 18 F.Supp.3d at 154 (quoting AM-13066).
Despite the significant concerns about the reliability of the GAF scale that the SSA itself has acknowledged, the ALJ's reliance on the scores in this case was not in error. Review of Dr. Salter's records makes clear that she carefully selected and adjusted Plaintiff's scores at each appointment. (R. 674-709). Dr. Salter met with Plaintiff once a month for almost two years, and the treatment notes describing Plaintiff's mood, energy, and complaints at each visit correspond with fluctuations in the GAF scores. The ALJ's use of the GAF scale did not involve any inferences drawn from ratings assigned by different clinicians, nor did the ALJ consider a single score in isolation. Dr. Salter recorded a range of scores over many months, thereby creating a more reliable longitudinal picture of Plaintiff's functionality than might be the case for other claimants. Thus, the concerns about the GAF scale identified by the APA are not implicated to the same extent, and the ALJ was permitted to consider Plaintiff's scores — at least as some evidence — in discounting Dr. Salter's opinion. See Gonzalez-Rodriguez v. Barnhart, 111 Fed.Appx. 23, 25 (1st Cir. 2004) (noting that the GAF system provides a helpful scale for ALJs and other
Furthermore, the ALJ relied on other supporting evidence for Plaintiff's ability to function in spite of her mental impairments. This evidence included Dr. Salter's notes that Plaintiff consistently appeared well, responded well to medication, and appeared to have symptoms related to situational stress. (R. 50). The ALJ also noted that despite Plaintiff's contention that she was unable to get out of bed, the record showed that she was able to go out with her boyfriend, play pool, visit her daughter, breed birds and go shopping. Id. Finally, the ALJ cited the parenting evaluation by Dr. Andrews, which supported the conclusion that Plaintiff could perform some unskilled work. Id. Plaintiff does not contest the existence or veracity of this evidence, but merely its significance vis-à-vis other conflicting evidence.
Plaintiff also challenges the "great weight" given to the evaluation by Dr. M.A. Gopal, the state agency medical consultant. Dr. Gopal assessed Plaintiff's physical RFC, and found that Plaintiff could occasionally lift or carry 20 pounds, frequently lift or carry 10 pounds, stand or sit for 6 hours in an 8-hour work day, and was unlimited in her ability to push and pull. (R. 175-76). In assigning Dr. Gopal's assessment great weight, the ALJ noted that it was "consistent with the medical evidence as a whole." (R. 49).
"[T]he amount of weight that can properly be given the conclusions of non-testifying, non-examining physicians will vary with the circumstances, including the nature of the illness and the information provided the expert." Rose v. Shalala, 34 F.3d 13, 18 (1st Cir.1994) (internal quotations omitted). The First Circuit has held that an RFC assessment of a non-examining medical advisor, when based on review of evaluations by a claimant's treating sources, may constitute substantial evidence to support a finding of non-disability. Rodriguez v. Sec'y of Health & Human Servs., 893 F.2d 401, 403 (1st Cir.1989). Further, SSA regulations specifically provide that in appropriate circumstances, "opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or
Plaintiff argues that Dr. Gopal's assessment should not have been credited because it failed to indicate what records were reviewed in determining Plaintiff's physical RFC. Plaintiff further asserts that governing regulations state that the only circumstance in which a non-examining source may outweigh treating source opinions is when the non-examining source reviews a complete case record that includes a medical report from a specialist. The Court rejects these arguments, because they mischaracterize both the record and the governing law. Contrary to Plaintiff's assertion, Dr. Gopal's assessment lists the "evidence of record" received, including records from the Union Square Family Health Center, Newton-Wellesley Department of Psychiatry, Plaintiff herself, and Plaintiff's attorney. (R. 169-172, 180-183). Under "Findings of Fact and Analysis of Evidence," the assessment plainly states that Dr. Gopal reviewed the medical evidence submitted by Newton-Wellesley and Union Square. (R. 173, 184).
Further, it is simply not true that the only time a non-examining source may be granted greater weight than a treating source is when a complete record, including a medical report from a specialist, has been reviewed. Social Security Ruling 96-6p, which Plaintiff cites for the proposition, lists that circumstance as one, non-exclusive example of when it would be appropriate to assign greater weight to the opinion of a state agency consultant.
Plaintiff next argues that the ALJ made an erroneous determination of Plaintiff's credibility. Once it is found that a claimant has a medically determinable impairment that could reasonably be expected to produce the claimant's symptoms, the ALJ must evaluate evidence of the intensity and persistence of the symptoms, including statements from the claimant. 20 C.F.R. § 404.1529(c)(1); 416.929(c)(1). However, a claimant's subjective description of symptoms alone cannot establish disability; the ALJ must also consider any other available evidence, including the objective medical evidence, to determine whether the claimant's testimony is consistent with the remainder of the record. 20 C.F.R. § 404.1529(a), (c); 416.929(a), (c). Evaluating the entire record in this manner requires the ALJ to make a finding about the credibility of a claimant's statements. SSR 96-7p, 1996 WL 374186 at *1. The ALJ's credibility determination "is entitled to deference, especially when supported by specific findings." Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir.1987).
Social Security Ruling 96-7p explains how an ALJ must evaluate a claimant's credibility under the regulations. See SSR 96-7p, 1996 WL 374186. The ruling requires an ALJ to consider a claimant's statements in light of the entire record, and to include in the decision specific reasons for the credibility finding that
20 C.F.R. §§ 404.1529(c)(3); 416.929(c)(3); SSR 96-7p, 1996 WL 374186 at *3; see also Avery v. Sec'y of Health & Human Servs., 797 F.2d 19, 29 (1st Cir.1986) (describing factors ALJs must consider in evaluating a claimant's subjective description of pain). In this case, the 20-page written decision thoroughly recounts Plaintiff's medical records and testimony, and the ALJ carefully weighed evidence regarding the nature and severity of Plaintiff's symptoms in light of the Avery factors. Plaintiff objects, however, to the credibility determinations regarding Plaintiff's mental impairments, ability to work, and her physical impairments.
With respect to the mental impairments, Plaintiff argues that the ALJ erred by not citing evidence for the conclusion that Plaintiff was exaggerating her symptoms. This contention is unfounded. In finding that Plaintiff "is clearly able to function well when she wants to," the ALJ specifically relied on Dr. Andrews' positive assessment of Plaintiff's potential as a parent, (R. 48-49), and the fact that she was consistently able to attend appointments in order to get medication refills. (R. 49). This constitutes "more than a scintilla" of evidence to support the credibility determination. See R & B Transp., LLC v. U.S. Dep't of Labor, Admin. Review Bd., 618 F.3d 37, 44 (1st Cir.2010).
Substantial evidence also supports the ALJ's finding that Plaintiff's statements about her ability to work were not fully credible. In support of this conclusion, the ALJ noted that Plaintiff testified that she stopped working when she moved, not because of her impairments. (R. 48). The ALJ further observed that Plaintiff continued to look for work for several years, and was even hired for jobs in 2010 and 2011 that ultimately did not work out. Id. The ALJ also found significant the fact that Plaintiff attributed difficulties in previous jobs to issues with her abusive ex-husband, a situation that appeared to be resolved. Id. Finally, the ALJ noted that Dr. Vogel reported that Plaintiff's physical and mental limitations began in 2004, but Plaintiff continued to have excellent earnings through 2007. Id. This suggested to the ALJ that Plaintiff was able to work despite her impairments. Id. All of these facts are found in the record. (R. 84-85, 678-79, 688, 316).
With respect to her physical impairments, the ALJ acknowledged that Plaintiff has arthritis in her toes, hands, hips, and spine, but concluded that the record did not support her subjective descriptions of the severity of her pain. (R. 48). The ALJ noted that Plaintiff consistently told her providers that the pain was well-controlled with Tramadol, and that she had not reported worsening symptoms or any difficulties using her hands. Id. Further, the ALJ cited the fact that Plaintiff had often reported engaging in activities such
Nonetheless, Plaintiff urges the Court to reverse the findings of the ALJ in light of the First Circuit's decision in Johnson v. Astrue, 597 F.3d 409 (1st Cir.2010). In Johnson, the First Circuit reversed a credibility determination where the ALJ relied on the fact that the claimant's fibromyalgia did not preclude her from engaging in "light housework, meal preparation, and driving short distances." Id. at 414. The First Circuit found that this evidence was not sufficient to discredit the claimant's descriptions of disabling pain for two reasons. Id. First, the fact that the claimant could engage in light chores was not inconsistent with other evidence suggesting that during a normal workday she could sit for four hours and walk and stand for one hour. Id. Second, there were no medical records discrediting the claimant's complaints of disabling pain. Id. Consequently, the First Circuit found the ALJ's credibility determination to be unsupported by substantial evidence. Id.
Neither of those circumstances is present here. Going to the beach and playing pool and darts involve more significant physical activity than the "light housework" the court found unpersuasive in Johnson. These activities involve more bending, squatting, lifting, and carrying than light housework, and therefore go further in discrediting Plaintiff's description of her symptoms.
Plaintiff presents a compelling argument that substantial evidence supports her descriptions of pain and functional limitations. While that may be true, the fact that the ALJ could have credited her statements is not grounds for reversal. See Evangelista v. Sec'y of Health & Human Servs., 826 F.2d 136, 144 (1st Cir. 1987) (stating that an ALJ's decision must be affirmed if supported by substantial evidence, "even if the record arguably could justify a different conclusion"). Once again, it is the responsibility of the ALJ, not this Court, to resolve conflicts in the evidence and draw reasonable inferences from the record. Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.1991). The Court finds that the determination on Plaintiff's credibility is supported by substantial evidence. Therefore, the ALJ's credibility determination will be affirmed.
Plaintiff's final argument is that the ALJ relied on flawed vocational expert testimony in concluding that Plaintiff could perform jobs that exist in significant numbers in the national economy. For a vocational expert's opinion to constitute substantial evidence, the testimony regarding an individual's ability to perform jobs in the national economy must come in response to a hypothetical question that
Plaintiff asserts that the ALJ's hypothetical failed to accurately describe all of Plaintiff's mental limitations.
(emphasis added) (R. 88). The emphasized sentence makes plain that the hypothetical did not, as Plaintiff argues, "only assume[] that [Plaintiff] was mentally restricted to simple, repetitive tasks." Pl.'s Mem., Docket No. 12, at 29. Further, the hypothetical adequately refers to limitations in "concentration, persistence or pace," despite the fact that the verbatim phrase does not appear. "Concentration, persistence, or pace" is defined by SSA regulations as "the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." 20 C.F.R. Pt. 404, Subpt. P, App. 1. The hypothetical clearly refers to an individual's ability to sustain concentration and complete tasks during the workday. Consequently, this case is different from Viveiros v. Astrue and Cohen v. Astrue, where Judge Casper and Judge Young found hypotheticals to be defective for omitting any mention of the claimant's limitations in concentration, persistence or pace. See No. 10-CV-11902-DJC, 2012 WL 4104794, *8 (D.Mass. Sept. 19, 2012); 851 F.Supp.2d 277, 285-86 (D.Mass.2012).
Nor was it reversible error that the ALJ omitted the term "moderate" from the hypothetical. Because the hypothetical catalogs several different ways in which limitations in concentration, persistence, or pace would affect an individual in a normal work environment, the Court
For the reasons set forth above, Plaintiff's Motion for Judgment on the Pleadings (Docket No. 11) is
SO ORDERED.
20 C.F.R. § 404.1567(b).