KATHERINE A. ROBERTSON, Magistrate Judge.
This is an action for judicial review of a final decision by the acting Commissioner of the Social Security Administration ("Commissioner") regarding Plaintiff's entitlement to Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") benefits. See 42 U.S.C. §§ 405(g) and 1383(c)(3). Plaintiff Melvin Marrero Rivera ("Plaintiff") faults the Commissioner's decision denying him such benefits — memorialized in a June 7, 2011 decision by an administrative law judge ("ALJ") — because: (1) the Commissioner accorded little weight to Plaintiff's treating physician's opinion regarding Plaintiff's physical limitations; (2) the Commissioner failed to appropriately consider Plaintiff's non-exertional impairments; and (3) the Commissioner failed to give controlling weight to Plaintiff's mental health treatment providers' opinions. Plaintiff has moved to reverse the Commissioner's decision or, in the alternative, to remand the decision (Dkt. No. 18), and the Commissioner, in turn, has moved to affirm (Dkt. No. 22).
The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the following reasons, the court will remand the case to the Commissioner for amplification of the reason for the denial of benefits for the period from June 3, 2011 until Plaintiff's surgery on October 16, 2012. The Commissioner's decision as to the subsequent period is affirmed.
Plaintiff was 36 years old at the time of the ALJ hearing on June 20, 2013 (Administrative Record ("A.R.") at 16, 39). He is a high school graduate, who previously was employed as a maintenance worker, security guard, and dishwasher (id. at 39, 40, 245). He worked as a supervisor for a produce distributor at his last job in 2008 (id. at 39-40). In his application for SSDI and SSI, Plaintiff alleged that he was disabled due to screws in his left leg and arthritis in his ankle (id. at 244).
Previously, in 2009, Plaintiff had applied for SSI and SSDI (id. at 115). After a hearing on June 7, 2011, the ALJ in the prior case ("first ALJ") found Plaintiff to be disabled for a closed period — from October 1, 2008 to June 2, 2011 — due to the following severe impairments: status post left tibia/fibula fracture and implantation of hardware; obesity; and obstructive sleep apnea ("OSA") (id. at 23, 115-121).
Plaintiff made subsequent applications for SSDI and SSI on October 18, 2011, alleging an onset of disability on June 3, 2011 (id. at 16, 213, 220). The applications were denied initially and upon reconsideration (id. at 16, 71, 82, 95, 106). Following a hearing on June 20, 2013, the ALJ issued a decision on August 14, 2013, finding that Plaintiff was not disabled and denying Plaintiff's claims (id. at 16-26). The Appeals Counsel denied review (id. at 1-8). Thus, the ALJ's decision became the final decision of the Commissioner. This appeal followed.
The District Court may enter a judgment affirming, modifying, or reversing the final decision of the Commissioner, with or without remanding for a rehearing. See 42 U.S.C. § 405(g). Judicial review "is limited to determining whether the ALJ used the proper legal standards and found facts upon the proper quantum of evidence." Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The court reviews questions of law de novo, but must defer to the ALJ's findings of fact if they are supported by substantial evidence. See id. (citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)). Substantial evidence exists "`if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the] conclusion.'" Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.1991) (quoting Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). In applying the substantial evidence standard, the court must be mindful that it is the province of the ALJ, and not the courts, to determine issues of credibility, resolve conflicts in the evidence, and draw conclusions from such evidence. See id. So long as the substantial evidence standard is met, the ALJ's factual findings are conclusive even if the record "arguably could support a different conclusion." Id. at 770. That said, the Commissioner may not ignore evidence, misapply the law, or judge matters entrusted to experts. See Nguyen, 172 F.3d at 35.
In order to qualify for SSDI, a claimant must demonstrate that he was disabled within the meaning of the Social Security Act (the "Act") prior to the expiration of his insured status for disability insurance benefits. See 42 U.S.C. § 423(a)(1)(A) and (D). SSI benefits, on the other hand, require a showing of both disability and financial need. See 42 U.S.C. § 1381a. "Plaintiff's need, for purposes of SSI, and insured status, for purposes of SSDI, are not challenged. The only question is whether the ALJ had substantial evidence with which to conclude that Plaintiff did not suffer from a disability." Bitsacos v. Barnhart, 353 F.Supp.2d 161, 165-66 (D. Mass. 2005).
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 result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3)(A) (similar). An individual is considered disabled under the Act
42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B). See generally Bowen v. Yuckert, 482 U.S. 137, 146-49 (1987).
The Commissioner evaluates a claimant's impairment under a five-step sequential evaluation process set forth in regulations promulgated under the Act. See 20 C.F.R. §§ 404.1520(a) and 416.920(a). The hearing officer must determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant suffers from a severe impairment; (3) whether the impairment meets or equals a listed impairment contained in Appendix 1 to the regulations; (4) whether the impairment prevents the claimant from performing previous relevant work; and (5) whether the impairment prevents the claimant from doing any work considering the claimant's age, education, and work experience. See id; see also Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982) (describing the five-step process). If the hearing officer determines at any step of the evaluation that the claimant is or is not disabled, the analysis does not continue to the next step. See 20 C.F.R. §§ 404.1520 and 416.920.
Before proceeding to steps four and five, the Commissioner must make an assessment of the claimant's "residual functional capacity" ("RFC"), which the Commissioner uses at step four to determine whether the claimant can do past relevant work and at step five to determine if the claimant can do other work. See id. "The RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities." Social Security Ruling ("SSR") 96-8p, 1996 WL 374187, at *2 (July 2, 1996). "Work-related mental activities generally . . . include the abilities to: understand, carry out and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision and co-workers and work situations; and deal with changes in a routine work setting." Id. at * 6. Put another way, "[a]n individual's RFC is defined as `the most you can still do despite your limitations.'" Dias v. Colvin, 52 F.Supp.3d 270, 278 (D. Mass. 2014) (quoting 20 C.F.R. § 416.945(a)(1)).
The claimant has the burden of proof through step four of the analysis. At step five, the Commissioner has the burden of showing the existence of jobs in the national economy that the claimant can perform notwithstanding impairment(s). See Goodermote, 690 F.2d at 7.
In support of the disabling conditions listed in Plaintiff's application for SSDI and SSI benefits, he presented the ALJ with extensive medical evidence spanning the period from 2010 through 2013, which included a portion of the closed period of disability from October 1, 2008 to June 2, 2011 (A.R. at 115, 121). Plaintiff currently claims that he was disabled on June 3, 2011 (id. at 16, 213, 220). As a result, the court focuses on the medical history that is related to Plaintiff's physical impairments as of that date.
Plaintiff complained of pain in his left knee, shin, and ankle due to the repair of fractures of his left tibia and fibula in 2004 by an open reduction internal fixation ("ORIF") surgical procedure, which involved the implantation of an intramedullary ("IM") rod and three screws (id. at 298, 305, 327). The medical evidence shows that Plaintiff had some osteoarthritis, walked with an antalgic gait,
Plaintiff saw his primary care physician ("PCP"), Dr. Nao Sakurai, on June 30, 2011 (id. at 21, 316). Plaintiff had fallen the day before when his left knee suddenly collapsed (id. at 316). He reported "frequent numbness" in his left leg (id.). He was instructed to keep a follow-up appointment at New England Orthopedic Surgeons ("NEOS") (id. at 318).
Physician's Assistant Hank Casagrande examined Plaintiff's left knee and shin at NEOS on August 5, 2011 (id. at 303). Plaintiff complained of continued pain in his knee and leg with "intermittent feelings of constant achy pain throughout [his] knee, shin, and ankle" (id). He had full range of motion of his left knee, foot, and ankle (id.). An x-ray of Plaintiff's left knee showed "advancing medial compartment arthrosis," which was consistent with prior radiographs (id. at 303, 304). Casagrande's impression was that Plaintiff suffered "[s]ymptomatic osteoarthropathy of the knee and retained hardware" (id. at 303). Plaintiff received a steroid injection in his left knee for pain relief (id.).
On August 26, 2011, J. Stephen Brecht, M.D. NEOS recorded that Plaintiff's x-rays revealed "a healed midshaft tibia fracture and fibula fracture," with "good alignment" and "no near ankle arthritis" (id. at 305, 306). The screws were intact (id. at 305). Dr. Brecht confirmed the diagnosis of "some early left knee osteoarthritis" (id.). Despite Dr. Brecht's advisement that there was a fifty per-cent chance that Plaintiff's pain would improve after surgery to remove hardware, and, in fact, there was the potential for increased pain, Plaintiff opted to undergo surgery (id.).
In January 2012, Dr. Sakurai recorded that Plaintiff visited Puerto Rico from November 20, 2011 through January 13, 2012 (id. at 390). Plaintiff was scheduled to have surgery to remove hardware from his left leg in January 2012, but first needed clearance from his cardiologist (id.). Although physical therapy had been recommended, Plaintiff had not yet scheduled a session (id.).
On January 26, 2012, Dr. Brecht recorded that Plaintiff experienced tenderness over the two distal locking screws and the single proximal screw in his left leg (id. at 400). Surgery to remove the locking screws was scheduled for March 7, 2012 (id. at 401, 403). Plaintiff complained that Dr. Sakurai would not prescribe narcotics, but Plaintiff did not appear to be in distress (id. at 400).
Dr. Sakurai conducted the pre-operative evaluation of Plaintiff on February 29, 2012 (id. at 387). Plaintiff did not have major cardiovascular risk factors, but had intermediate risk factors including diabetes, and minor risk factors due to "uncontrolled hypertension" (id. at 388). A recent nuclear stress test and EKG were normal (id. at 388, 409, 426-429). Plaintiff had pulmonary risk factors, including obesity and "probable" OSA (id. at 388). Plaintiff missed a sleep study, and there was a question whether it could be scheduled prior to surgery (id. at 388-389, 452).
In March 2012, Plaintiff was not in apparent distress during a visit to NEOS (id. at 405). Dr. Brecht advised Plaintiff that he preferred to have the results of the sleep study prior to surgery due to the potential for oversedation (id.). The sleep study was performed in June 2012 (id. at 430-438).
Dr. Sakurai's notes from Plaintiff's routine visit in April 2012 reflect the fact that Plaintiff had missed an appointment with the orthopedic surgeon, but intended to reschedule it (id. at 452, 453, 454). Plaintiff saw Dr. Sakurai in July 2012 for pain in his right heel (id. at 460). Plaintiff's "[g]ait [was] normal on both sides," and his extremities were "normal" (id.). His musculoskeletal evaluation was "[n]egative for decreased mobility, joint instability and weakness" (id. at 459). Dr. Sakurai performed a second preoperative evaluation on September 26, 2012 for Plaintiff's leg surgery, which was scheduled for October 2012 (id. at 462). Plaintiff's cardiac and pulmonary risk factors remained unchanged since the earlier pre-operative evaluation (id.). Dr. Brecht surgically removed the locking screws on October 16, 2012 in an effort to relieve Plaintiff's pain (id. at 476).
The examination notes of Plaintiff's post-operative office visit to Dr. Sakurai on March 18, 2013 show that Plaintiff's gait was antalgic, but "full weight bearing and no assistive device" (id. at 23, 467, 469). Yet, Plaintiff complained that there was no "significant improvement" in the pain after surgery (id. at 467). Plaintiff reported that his post-surgical pain was relieved by the Percocet that NEOS prescribed, but the prescription had run out and he was purchasing Percocet from his friends (id. at 467, 471). Dr. Sakurai ordered a urine toxicology test prior to prescribing any pain medication (id. at 470). Because Plaintiff's urine tested positive for cocaine, Dr. Sakurai would not prescribe opioids (id. at 442, 471). Plaintiff was "upset" and "cursed" when he learned of the doctor's decision (id. at 471).
Dr. Brecht examined Plaintiff on March 21, 2013 due to Plaintiff's continued complaints of left leg pain (id. at 22, 476). Plaintiff was not in apparent distress and did not require treatment with narcotics (id. at 476). An x-ray of Plaintiff's left tibia revealed a well-healed fracture and a broken screw, which went from front to back on the distal end of the tibia, but Dr. Brecht opined that the screw and the tibial nail would not cause discomfort due to their locations (id. at 22, 476-77, 478). Plaintiff's ankle and knee joints were unremarkable (id. at 476, 478). Dr. Brecht noted that Plaintiff had good strength in his leg with no signs of instability (id. at 22, 476). Dr. Brecht ordered an MRI of Plaintiff's left knee, which was performed on April 25, 2013 (id. at 22, 473, 477). The MRI revealed an oblique tear in the posterior third of the medial meniscus (cartilage), but no other ligamentous injuries (id. at 22, 473-74, 479). Plaintiff did not appear to be in distress due to the meniscal tear (id. at 479). Dr. Brecht recommended arthroscopic treatment (id. at 479).
Because Plaintiff "kept coming to the clinic, requesting opioid analgesics," while Dr. Sakurai was on vacation, Dr. Sakurai discussed pain management with Plaintiff on April 18, 2013 (id. at 471). Again, Plaintiff's urine screen was positive for cocaine (id. at 456, 508). Plaintiff left the room when Dr. Sakurai reported the test results (id. at 456). Dr. Sakurai would not start chronic opioid treatment because Plaintiff received a "high" score on the opioid risk assessment; that is, Plaintiff posed a high risk for opioid addiction (id. at 456).
On April 19, 2013, Plaintiff was treated in the Holyoke Medical Center emergency room for pain in his left knee and ankle (id. at 506, 507). Plaintiff was not in acute distress (id. at 507). He was prescribed medication (id. at 507). Plaintiff returned to the emergency room on May 15, 2013 with a similar complaint of pain in his left knee (id. at 504). His gait was limited by pain, but was not antalgic and he was able to bear weight (id. at 504, 505). He received a prescription for Percocet (id. at 505)
Dr. Sakurai treated Plaintiff for diabetes mellitus, which was diagnosed in April 2011 (id. at 316). Initially, Plaintiff checked his glucose at least once a day (id.). As of September 2011, he had improved his diet, stopped drinking alcohol, and took prescribed medication (id. at 313). In January 2012, Plaintiff's diabetes was "well controlled" (id. at 391). Six months later in July 2012, Dr. Sakurai discussed "the importance of lifestyle modification and chronic disease management" because Plaintiff's diabetes was "[u]ncontrolled" (id. at 460). Plaintiff's diabetes had improved in September 2012, and was "controlled" by March 2013 through monitoring his blood glucose, improving his diet, and adhering to his prescribed medication (id. at 466, 467, 468, 470).
Plaintiff was prescribed medication to treat his hypertension and was advised to alter his lifestyle and to continue his medications (id. at 314, 327, 328, 454, 392, 460, 466, 470). In February 2012, his sinus rhythm was normal, his stress test was "completely normal with no evidence of myocardial ischemia with EF of 57%, which is consistent with EF on echocardiogram of 55 to 60% with no major valvular abnormalities" (id. at 409, 409, 413). In March 2012, Plaintiff reported to Dr. Sakurai that his blood pressure was usually normal at home and at other medical offices, and in September 2012, Plaintiff's blood pressure was "usually within [an] acceptable range" (id. at 389, 462, 465).
After a sleep study was conducted and a continuous positive air pressure ("CPAP")
Because Plaintiff's 2009 application for benefits was not based on his mental condition, it appears from the record that the first ALJ did not consider Plaintiff's mental health records (id. at 115-120). A summary of those records follows.
Plaintiff began treatment with a therapist, Irma Ramírez Mendez ("Ramírez"), at the City Clinic on June 9, 2009 after referral by his physician, but Plaintiff's treatment history was sporadic and he failed to consistently adhere to his medications (id. at 375). Between June 2009 and February 2012, Plaintiff's Global Assessment of Functioning ("GAF") scores ranged from 50 to 60 (id. at 357-360, 362, 369, 378, 417).
Although Dr. Sakurai prescribed medications to treat Plaintiff's depression and anxiety, Plaintiff failed to adhere to a regular medication regimen (id. at 313, 319-20, 321, 327, 453). Plaintiff denied hallucinations during a visit to City Clinic in October 2010, and hallucinations were not noted in the other City Clinic records from November 2009 through December 2012 (id. at 352-356, 366-67, 371-74, 421). On January 17, 2012, Plaintiff reported to Dr. Sakurai that he was "seeing shadows," especially at night, but did not experience auditory hallucinations (id. at 390, 392). He was not taking the fluoxetine that Dr. Sakurai had prescribed in September 2011, but was taking trazodone (id. at 390). Dr. Sakurai directed Plaintiff to continue taking fluoxetine and trazodone, and added Risperidone (id. at 392).
On September 26, 2012, Plaintiff told Dr. Sakurai that he had not seen his therapist at City Clinic "for a while" (id. at 462). Dr. Sakurai's note on April 18, 2013 says:
(id. at 471).
On December 15, 2011, Erik Purins, M.D., a Disability Determination Services ("DDS") nonexamining medical consultant, assessed Plaintiff's RFC (id. at 70, 81). In his assessment, Dr. Purins opined that Plaintiff could: (1) occasionally lift and/or carry 20 pounds; (2) frequently lift and/or carry 10 pounds; (3) stand and/or walk, with normal breaks, for a total or four hours during an eight-hour workday with the assistance of a cane on uneven surfaces and for distances of more than 50 yards; (4) sit on a sustained basis, with normal breaks, for about six hours during an eight-hour workday; (5) push and/or pull with limitations for his lower left extremities; (6) occasionally climb ramps, stairs, ladders, ropes, and scaffolds; (7) occasionally kneel, crouch, and crawl; and (8) stoop and balance without limitation (id. at 68-69, 79-80). Dr. Purins further opined that Plaintiff should avoid concentrated exposure to extreme cold and hazards, but had no other environmental limitations (id. at 69-70, 80-81). On May 31, 2012, a second DDS consultant, Meghana C. Karande, M.D., affirmed Dr. Purins's opinions (id. at 90, 92-94, 101, 103-105).
The record also includes the results of a psychiatric review technique ("PRT") analysis
In the RFC questionnaire that Dr. Sakurai completed in June 2013, he diagnosed Plaintiff with "chronic" left leg pain, diabetes, hypertension, obesity, mood disorder, gastroesophageal reflux disease ("GERD"), OSA, and substance abuse (id. at 490). Dr. Sakurai concluded that Plaintiff's ability to perform sustained work would be limited by the pain caused by prolonged walking and weight bearing and the need for frequent rest (id. at 491). Dr. Sakurai indicated that Plaintiff could stand for up to four hours during an eight hour workday, could sit for eight hours without the need to take a break or change from a sitting position, could walk up to 500 feet with rest and an assistive device, could frequently lift a maximum of five pounds, and could occasionally lift ten pounds (id. at 492). Plaintiff could occasionally twist, stoop, or climb stairs, but could never crouch, squat, or climb ladders (id.). Plaintiff could use his hands for repetitive hand motions, and for pushing and pulling without restriction, but his ability to use his feet or legs for repetitive motions was limited (id. at 492-93). According to Dr. Sakurai, Plaintiff's ability to cope with work stress would be impaired by his bipolar disorder, and poor impulse control (id. at 491). Dr. Sakurai estimated that Plaintiff would be absent from work or have to leave work more than four times per month due to his impairments (id. at 493).
In a Mental Impairment Questionnaire, dated June 19, 2013, Ms. Ramírez diagnosed Plaintiff as having panic attacks with agoraphobia and depressive disorder (id. at 496, 501). Ms. Ramírez assigned a GAF score of 55 at the time of the assessment, and stated that Plaintiff's highest GAF score during the past year was 50 (id.). Ms. Ramírez indicated that Plaintiff had no useful ability to function in seven areas of mental abilities and aptitudes needed to do unskilled work, was unable to meet competitive standards in five areas, and had limited, but satisfactory, ability in only one area: his ability to understand and remember very short instructions (id. at 498). In the area of functional limitations (paragraph B criteria), Ms. Ramírez determined that Plaintiff had moderate restrictions in his activities of daily living, marked difficulties in maintaining social functioning, and extreme difficulties in maintaining concentration, persistence, or pace (id. at 500). Plaintiff had experienced four or more episodes of decompensation within a twelve-month period, each of which lasted for at least two weeks (id.). Ms. Ramírez's questionnaire concluded with two additional relevant opinions: (1) Plaintiff has an anxiety-related disorder and a complete inability to function outside his home; and (2) his impairment or treatment would cause him to be absent from work for more than four days per month, which is the highest degree of absenteeism listed on the questionnaire (id. at 500-01). In sum, Ms. Ramírez opined that Plaintiff was unable to work (id. at 498-99). He was, however, able to manage benefits in his own best interest (id. at 501).
Plaintiff and James Parker, an independent Vocational Expert ("VE") testified before the ALJ. Plaintiff acknowledged that, at the prior ALJ hearing, he agreed that his disability ended on June 2, 2011 (id. at 41). Although Plaintiff believed that surgery would alleviate the pain in his left leg, Plaintiff testified that one of the screws broke during surgery, and the removal of hardware did not alleviate the pain from his knee to his ankle (id. at 41-42, 43, 47). He was not able to sleep due to the pain, despite taking sleeping pills (id. at 43). On a scale of 1 to 10, Plaintiff testified that his pain was a "10" after the surgery (id. at 43, 47-48). He indicated that NEOS would treat the torn meniscus in his left knee with cortisone (id. at 45-46).
According to Plaintiff, he saw his therapist, Ramírez, two to three times per month to treat his depression and anxiety (id. at 44-45). Plaintiff testified that he spent his days in his room and did not do household chores (id. at 46-47, 48). Although he travelled to Puerto Rico from November 20, 2011 until January 13, 2012 to help his mother sell her home, he testified that he did not leave the house while he was there, and did not take his medication because he did not want to deplete his entire supply (id. at 48, 50).
The ALJ asked the VE if there was any light work that a person with Plaintiff's age, education, and past work experience could perform given the following limitations: standing and walking for four hours during an eight hour day; occasionally stooping, kneeling, crouching, crawling, climbing ramps, stairs, ropes, and scaffolds; using a cane to walk on uneven surfaces or more than 50 yards; avoiding concentrated exposure to hazardous conditions, such as unprotected heights and dangerous machinery; and lacking the ability to communicate in English (id. at 52-53). The VE opined that, considering those limitations, there were light jobs, specifically bench or desk work, such as assembling small products, sorting and folding laundry, and marking prices in a retail store, which were available in the United States and in the local area (id. at 54). In addition, the sedentary jobs that were available in the national economy and in the region were: inspecting tiles for defects; performing the final assembly for optical products; and polishing jewelry (id. at 53-54). The VE's opinion remained the same if the work was limited to simple, routine tasks with few workplace changes (id. at 55). Only the laundry sorter position had a sit-stand option (id. at 58-59). The VE indicated that an individual who missed three days of employment per month due to symptoms or treatment would be terminated from employment (id. at 56). Plaintiff's attorney asked the VE if any of these jobs would permit Plaintiff to take up to four unscheduled breaks of fifteen to twenty minutes per day and the VE responded that they would not (id. at 57, 59).
Following the hearing on June 20, 2013, the ALJ denied Plaintiff's claim on August 14, 2013 (id. at 26). In determining whether Plaintiff was disabled, the ALJ conducted the five-part analysis required by the regulations. At the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of June 3, 2011 (id. at 18). 20 C.F.R. §§ 404.1571 et seq., and 416.971 et seq. At step two, the ALJ found that Plaintiff was severely impaired due to obesity and the history of a prior fracture of his left tibia and fibula after ORIF in 2004 (A.R. at 18). See 20 C.F.R. §§ 404.1520(c) and 416.920(c). The ALJ found that the following conditions were not severe: (1) hypertension, which was "well-controlled on medication;" (2) type II diabetes, which was "capable of being controlled with lifestyle modification;" (3) GERD, which was also adequately controlled with medication; (4) OSA; and (5) the medically determinable mental impairments of a mood disorder, a personality disorder, and alcohol substance addiction disorder, considered singly or in combination (A.R. at 18-19). For this latter determination, the ALJ relied on the assessment of Plaintiff by Dr. Langer, the DDS medical consultant (id. at 18-19, 102). After applying the four broad functional areas (paragraph B criteria) described in the regulations to determine the severity of Plaintiff's mental impairments, the ALJ determined that Plaintiff's limitations in the areas of daily living, social functioning, and "concentration, persistence or pace" were mild and that Plaintiff did not experience any episodes of decompensation (id. at 19). The ALJ concluded that Plaintiff's mental impairments would not limit his ability to perform basic mental work activities and, thus, were non-severe for purposes of assessment at steps two and three of the sequential evaluation process (id. at 18-19). See 20 C.F.R. §§ 404.1520a(d)(1) and 416.920a(d)(1).
At step three, the ALJ concluded that Plaintiff's severe impairments — obesity and the condition of his left knee and lower leg — either alone or in combination, did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (A.R. at 19). Before proceeding to step four, the ALJ determined that Plaintiff had the RFC to perform light work,
(id. at 19).
At step four, the ALJ found that Plaintiff was not able to perform any past relevant work (id. at 24). See 20 C.F.R. §§ 404.2565 and 416.965. Finally, at step five, the ALJ determined, based on the testimony of the VE, that Plaintiff can perform jobs that exist in significant numbers in the national economy taking into account Plaintiff's age, education, work experience, and RFC, and, therefore, Plaintiff was not disabled (A.R. at 24-25).
Plaintiff argues that there is no substantial evidence to support the ALJ's determination that he is not disabled. Specifically, Plaintiff claims that the ALJ failed to: (1) give controlling weight to the June 19, 2013 RFC questionnaire completed by Dr. Sakurai, Plaintiff's PCP since 2009 (Dkt. No. 19); (2) correctly evaluate Plaintiff's non-exertional impairments, specifically diabetes, hypertension, and sleep apnea, in determining his RFC (id.); and (3) adequately consider Plaintiff's ability to cope with the stress of employment due to Plaintiff's identified mental impairments (id.). Plaintiff's contentions will be addressed in turn.
Plaintiff relies on his pre-surgery medical reports, which are part of the record, to support his argument that the ALJ erred by failing to afford controlling weight to Dr. Sakurai's RFC opinion (Dkt. No. 19 at 4-12). The initial question is whether, in light of the first ALJ's grant of Plaintiff's application, which established a closed period of disability from October 1, 2008 to June 2, 2011 mainly due to Plaintiff's "intractable and severe" left leg pain, which Plaintiff anticipated would be alleviated by impending surgery, substantial evidence supports the current ALJ's seemingly contradictory determination that Plaintiff was not disabled on June 3, 2011, the very next day (A.R. at 120-21). Although Plaintiff acknowledged medical improvement as of June 2, 2011 at the hearing before the first ALJ in 2011 (id. at 23, 41), Plaintiff made this representation with the understanding that he soon would undergo surgery for the removal of hardware in his leg, which he believed was the source of the pain (id. at 41-42). But Plaintiff's surgery was not performed until October 16, 2012 (id. at 476). The medical reports of Dr. Sakurai and NEOS for the period before June 3, 2011 and up to October 16, 2012, which were submitted to support Plaintiff's present claim, indicate that Plaintiff consistently had difficulty walking, and complained of pain in his left knee, lower leg, and ankle (id. at 298, 301, 319, 322, 327). Because the first ALJ found that Plaintiff was disabled until June 2, 2011, and because the current ALJ found that Plaintiff was not under a disability within the meaning of the Act as of the next day, remand is necessary to reconcile the apparently contradictory findings (id. at 16).
In examining whether to terminate benefits after a closed period of disability, an ALJ is required to determine whether "`a claimant has improved to the point of being able to engage in substantial gainful activity' or if his . . . `condition is not as serious as first supposed.'" Dedis v. Chater, 956 F.Supp. 45, 48-49 (D. Mass. 1997) (quoting Miranda v. Sec'y of Health, Educ. & and Welfare, 514 F.2d 996, 998 (1st Cir. 1975)); see also Pelosi v. Comm'r of Soc. Sec., Civil Action No. 12-40111-TSH, 2015 WL 4585770, at * 2 (D. Mass. Jul. 30, 2015) (citing 20 C.F.R. § 404.1594(a)) ("[U]nder the Act, benefits may be discontinued only if there is substantial evidence to support a finding: (1) that there is medical improvement related to the individual's ability to work, and (2) that the individual is now able to engage in substantial gainful activity"). Compare Shepherd v. Apfel, 184 F.3d 1196, 1199-1202 (10th Cir. 1999) (applying the "medical improvement" standard to a period following a finding of a closed period of disability); Drummond v. Comm'r. of Soc. Sec., 126 F.3d 837, 842 (6th Cir. 1997)) ("Absent evidence of an improvement in a claimant's condition, a subsequent ALJ is bound by the findings of a previous ALJ"); Tempesta v. Astrue, No. CV-08-00003(FB), 2009 WL 211362, at *8-*9 (E.D.N.Y. Jan. 28, 2009) (where claimant was awarded benefits for a closed period, the ALJ was required to explain medical improvement in claimant's physical condition to support the denial of benefits for a subsequent period); 20 C.F.R. § 404.1594(b)(1) (SSA's definition of the medical improvement standard). Here, the ALJ's conclusion that Plaintiff was not disabled between June 3, 2011 and October 16, 2012, when Plaintiff had surgery, was based exclusively on Plaintiff's representation to the first ALJ that he expected his condition to improve following imminent surgery (A.R. at 23). That surgery, however, did not take place until October 16, 2012 (id. at 476). On remand, the ALJ should determine and explain whether substantial evidence supports his implicit finding of Plaintiff's medical improvement as of June 3, 2011. Compare Martin v. Astrue, Civil Action No. 5:05-00947, 2008 WL 1913882, at *8 (S.D. W.Va. April 28, 2008) (remanding the first ALJ's denial of benefits where a different ALJ found that claimant was disabled on the day after the first ALJ issued his decision).
As noted above, Plaintiff had surgery to remove some hardware from his left lower leg on October 16, 2012 (A.R. at 476). As a result, the analysis of Plaintiff's complaint — that the ALJ failed to give controlling weight to Dr. Sakurai's post-surgery RFC opinion — is distinct from consideration of the ALJ's decision for the period prior to surgery. Plaintiff asserts that Dr. Sakurai's RFC assessment should be given controlling weight because of his "longitudinal history" with Plaintiff (Dkt. No. 19 at 14). Plaintiff further disputes the ALJ's finding that Dr. Sakurai's assessment is inconsistent with other medical evidence (id. at 13-14).
An ALJ must ordinarily "give more weight to the opinions from [the claimant's] treating physicians, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairments." 20 C.F.R. § 416.927(c)(2). A treating physician's opinion, however, is only controlling if it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence." Id. If the treating physician's opinion is inconsistent with other evidence in the record, the conflict is for the ALJ, not the court, to resolve. See Rodriguez, 647 F.2d at 222. The ALJ's decision must nevertheless "contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record. . . ." SSR 96-2p, 1996 WL 374188 at *5 (July 2, 1996); see also Healy v. Colvin, Civil Action No. 12-30205-DJC, 2014 WL 1271698, at *13-15 (D. Mass. Mar. 27, 2014). "If the ALJ determines that the treating physician's opinion is not entitled to controlling weight, the ALJ must determine the amount of weight to which the opinion is entitled based on the following six factors: (1) `[l]ength of treatment relationship and the frequency of examination,' (2) `[n]ature and extent of the treatment relationship,' (3) `[s]upportability' of the medical opinion, (4) consistency of the opinion `with the record as a whole,' (5) `[s]pecialization' of the treating source, and (6) `other factors . . . that tend to support or contradict the opinion.'" Healy, 2014 WL 1271698, at *14 (quoting 20 C.F.R. § 404 .1527(c)). Ultimately, the ALJ is required to supply good reasons for the weight that he assigns to the treating source. See id.
Here, "the ALJ did not reject the assessment[] of [Dr. Sakurai] outright." Arruda v. Barnhart, 314 F.Supp.2d 52, 71 (D. Mass. 2014) (citing Keating v. Sec'y of Health & Human Servs., 848 F.2d 271, 276 (1st Cir. 1988)). The ALJ adopted Dr. Sakurai's identification of Plaintiff's primary limitations on walking and standing in his RFC (A.R. at 19, 490, 491). Both Dr. Sakurai's and the ALJ's RFCs restrict Plaintiff's standing to less than four hours and his walking to less than 50 yards (150 feet) (id. at 19, 492). Dr. Sakurai opined that Plaintiff had no limitations with respect to sitting or to using his hands for repetitive hand motions, pushing, or pulling, which made him capable of performing sedentary work (id.). See 20 C.F.R. § 404.1567. The ALJ's stated reason for giving "little weight" to Dr. Sakurai's conclusion of disability was that Dr. Sakurai's assessment was inconsistent with other substantial evidence, specifically Dr. Sakurai's treatment notes, which "do not show specific signs and findings regarding the left leg impairment," the reports of NEOS, including those of the specialist Dr. Brecht, Plaintiff's treating orthopedic surgeon, and the DDS medical consultants' assessments (A.R. at 20-24). The ALJ correctly assessed Dr. Sakurai's medical records as being inconsistent with Dr. Sakurai's RFC (id. at 23). Dr. Sakurai's treatment notes after the surgery documented that Plaintiff's gait was antalgic and that he used a cane, but that he was "full weight bearing" (id. at 23, 469). While Dr. Sakurai's records reflect Plaintiff's reports of pain in his left leg, Dr. Sakurai did not treat Plaintiff's leg. Instead, Plaintiff's leg was treated by Dr. Brecht (id. at 305-06, 400-06, 476-80). Dr. Brecht's records from March 2013 indicate that Plaintiff had good strength in his leg with no sign of instability (id. at 22, 476). An x-ray showed that the ankle and knee joints were unremarkable and that the tibia fracture was healed (id. at 22, 476, 468). See Healy, 2014 WL 1271698, at *15 ("The ALJ discussed a multitude of [the PCP's] notes throughout her written decision, but placed little weight o[n] the physician's . . . RFC assessment because it was inconsistent with . . . physician notes regarding [claimant's] limitations"). The ALJ's opinion was also supported by the opinions of the DDS experts, who determined that Plaintiff could stand or walk for up to four hours (id. at 23-24, 79-81, 101). The treating orthopedic surgeon's records provided an appropriate basis for assigning greater weight to the DDS physicians' opinions than to those of Dr. Sakurai. See Ormon v. Astrue, 793 F.Supp.2d 465, 473 (D. Mass. 2011) (citing Arroyo v. Sec'y of Health & Human Servs., 932 F.2d 82, 89 (1st Cir. 1991)) ("Where reviewing experts provide an opinion that is contrary to that of the treating physician, the ALJ may assign greater weight to the opinion of a reviewing physician so long as he has an adequate basis for doing so"). This evidence corroborated the ALJ's conclusion that, after October 2012, Plaintiff had the ability to perform light work with limitations on standing and walking (A.R. at 19, 24-25).
The court concludes that the ALJ provided an adequate explanation for according Dr. Sakurai's decision "little weight," and finds no error.
It is also clear from the opinion that the ALJ considered the appropriate factors in evaluating the limiting effects, if any, of Plaintiff's complaints of pain. "When a claim of disability is based on a subjective symptom, such as pain, a two-step analysis is conducted." Dasilva-Santos v. Astrue, 596 F. Supp. 2d. 181, 192 (D. Mass. 2009). In determining Plaintiff's RFC, the ALJ first considered all of Plaintiff's symptoms to the extent that they were consistent with the objective medical evidence and determined that Plaintiff's medically determinable impairments "could reasonably be expected to cause the alleged symptoms" (A.R. at 20, 23). 20 C.F.R. §§ 404.1567(b) and 416.929.
Bourinot v. Colvin, 95 F.Supp.3d 161, 180 (D. Mass. 2015). The ALJ was then required to make a finding about the credibility of Plaintiff's statements about the limitations caused by his pain. See Masse v. Comm'r of Soc. Sec., No. CA 10-134 M, 2011 WL 2791283, at *6 (D.R.I. June 24, 2011); SSR 96-7p, 1996 WL 374186, at *1 (July 2, 1996). 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).
Substantial evidence supports the ALJ's finding that Plaintiff's statements about the intensity of his post-surgical pain, including his rating it as "10" on a scale of 10, were "not entirely credible, as they are not supported by the medical record to the extent alleged" (A.R. at 20, 24). "[T]he ALJ's explanation for finding a claimant less than fully credible need only be `sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reason for that weight.'" Traynham v. Astrue, 925 F.Supp.2d 149, 158 (D. Mass. 2013)(quoting SSR 96-7p, 1996 WL 374186, at *4). Plaintiff's testimony was inconsistent with the medical records. After the surgery, Dr. Brecht recorded that Plaintiff was not in apparent distress (A.R. at 476). Dr. Brecht opined that the remaining broken screw and tibial nail would not cause discomfort to the extent that narcotics were required to relieve Plaintiff's pain (id. at 22, 476-77). Plaintiff's articulation of the severity of his pain was further undercut by the fact that Plaintiff abused cocaine, purchased Percocet from friends, and sought Percocet from the emergency room after Dr. Sakurai refused to prescribe it (id. at 22, 23, 43, 442, 456, 471, 505, 507, 508). The ALJ reasonably inferred, based upon the record evidence, that Plaintiff exaggerated the intensity of his pain in order to obtain narcotics (id. at 23). These credibility determinations and inferences were within the ALJ's exclusive purview. See Irlanda Ortiz, 955 F.2d at 769; Parkins ex rel. Parkins v. Astrue, No. 4:08CV3206, 2009 WL 3756564 (D. Neb. Nov. 5, 2009) (ALJ inferred that plaintiff was motivated to exaggerate symptoms because he was addicted to narcotics and "`to get disability for his back'"). Plaintiff's testimony regarding the intensity of his pain was further discredited by his acknowledgement, during the hearing before the first ALJ, that surgery would result in medical improvement and that he would be able to perform light or sedentary employment following surgery (A.R. at 23, 119, 120-121).
The ALJ's credibility determination was supported by substantial evidence, and provides no basis for remand or reversal as to the period following October 16, 2012.
Nor did the ALJ err by failing to consider Plaintiff's non-exertional impairments — specifically type II diabetes mellitus, hypertension, and OSA — when determining Plaintiff's RFC. The ALJ "evaluated all of the evidence of these physical conditions and determined, within [his] authority, that they did not rise to the level of a `severe' impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c)." Healy, 2014 WL 1271698, at *9. "A mere diagnosis is insufficient to establish that an impairment is severe[,] as defined by the regulations." Church v. Astrue, Civil Action No. 10-cv-30236-FDS, 2012 WL 369424, at *8 (D. Mass. Feb. 2, 2012) (citing 42 U.S.C. § 423(d)(2)(B)). "An impairment or combination of impairments is `severe' if it significantly limits an individual's physical or mental ability to perform basic work activities, which in turn is defined as `the abilities and aptitudes necessary to do most jobs.'" Church, 2012 WL 369424, at *8 (quoting 20 C.F.R. §§ 404.1520(c), 1521(b)). "The claimant must prove the existence of a physical or mental impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings; the claimant's own statement of symptoms alone will not suffice." Id. (citing 20 C.F.R. §§ 404.1508, 416.908); Grady v. Astrue, 894 F.Supp.2d 131, 142 (D. Mass. 2012) ("A plaintiff's description of symptoms and limitations cannot by itself establish disability; the ALJ must also consider objective medical evidence and any other available evidence, such as medications and daily activities, to determine whether the plaintiff's testimony is consistent with the remainder of the record"). "The ALJ has discretion to determine whether an impairment is severe, so long as []he demonstrates that []he reviewed the entire medical record and has `substantial evidence' to support [his] finding." Healy, 2014 WL 127698, at *9. See Noel v. Astrue, C.A. No. 11-cv-30037-MAP, 2012 WL 2862141, at *6 (D. Mass. July 10, 2012).
"Even if an ALJ overlooks some single piece of evidence, the error will be deemed harmless so long as the ALJ has `explicitly considered "all symptoms," both severe and nonsevere, in assessing Plaintiff's residual functional capacity and there is no indication that the ALJ failed to consider the cumulative effect of these impairments.'" Healy, 2014 WL 1271698, at *9 (quoting Perez v. Astrue, Civil Action No. 11-cv-30074-KPN, 2011 WL 6132547, at *4 (D. Mass. Dec. 7, 2011)) (finding failure to analyze arthritis a harmless error where ALJ had reviewed all relevant symptoms and determined other severe impairments existed). "The ALJ sufficiently reviewed the medical evidence regarding all of [Plaintiff's] alleged symptoms" and his conclusion that Plaintiff was not severely impaired by diabetes, hypertension, or OSA was supported by substantial evidence. Healy, 2014 WL 1271698, at *9. "The ALJ recognized that [Plaintiff] had been diagnosed with each of these three conditions at some point, but reasonably relied on substantial evidence that these diagnoses did not prevent [Plaintiff] from being mobile or functional" (id. at 18). Id. While Plaintiff points to several parts of the record where Dr. Sakurai diagnosed these conditions, there is no evidence to support Plaintiff's contention that any of these three conditions substantially impaired him to the extent to warrant recognition as severe at step two. See id. "The [c]ourt concludes that the ALJ gave [these] medical conditions appropriate consideration, proportionate to their presence in the record and their overall impact on [Plaintiff's] work ability." Id.
"`If an impairment can be controlled by treatment or medication, it cannot be considered disabling.'" Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995) (quoting Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993)). See also 20 C.F.R. §§ 404.1530(b), 416.930(b) ("If you do not follow the prescribed treatment without a good reason, we will not find you disabled"). The ALJ's conclusion — that Plaintiff's conditions were controlled by medical intervention — is supported by the medical evidence (A.R. at 18). The ALJ noted Plaintiff's diagnosis of OSA in his discussion of Dr. Sakurai's medical records of June 30, 3011 (id. at 20). Plaintiff highlights the fact that the ALJ indicated that that the sleep study "did not recommend a CPAP machine," when, in fact, Plaintiff was directed to use a CPAP machine (Docket No. 19 at 14; A.R. at 20, 430, 465, 466). But this discrepancy is inconsequential because Plaintiff fails to point to any record evidence to buttress his contention that OSA limited his ability to "perform basic work activities." Church, 2012 WL 369242, at *8. In fact, Dr. Sakurai's records, which show that Plaintiff's OSA was "mild" and that he used a CPAP machine, support the ALJ's conclusion that Plaintiff's OSA was not a factor that limited his ability to perform light work (A.R. at 18, 430-31, 460, 465, 466).
Likewise, although the ALJ considered Plaintiff's diabetes and hypertension, he reasonably concluded, based on specifically referenced medical evidence, that these conditions could be controlled by medication and lifestyle changes, and, thus, were not severe (id. at 18). Plaintiff points to other record evidence to support his argument that these conditions were uncontrolled (Dkt. No. 19 at 15). But the ALJ's contrary determination is well supported. "[T]he resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [the ALJ], not for the doctors or for the courts." Rodriguez, 647 F.2d at 222. Dr. Sakurai recorded that Plaintiff's diabetes was "[u]ncontrolled" in July 2012 (A.R. at 460). Yet, two months later, Plaintiff's HgbA1C had improved due to changes in his diet and adherence to his prescribed medication (id. at 466). Plaintiff's diabetes was well-controlled in March 2013 (id. at 470). Like Plaintiff's diabetes, his hypertension was subject to fluctuation due to his failure to modify his lifestyle and to use his medication as prescribed. The records that Plaintiff points to in his motion reflect Plaintiff's hypertension during periods when it was "suboptimal" (Dkt. No. 19 at 15; A.R. at 449, 451, 454, 459, 460, 465-466). But these records conflict with the substantial medical evidence upon which the ALJ relied, which indicated that Plaintiff's uncontrolled hypertension was due to his lack of compliance with the physician's recommended treatment without "an acceptable reason" (id. at 23). 20 C.M.R. § 404.1530(c). The medical records are replete with references to Plaintiff's inconsistent medication management (A.R. at 389, 390, 392, 453, 454, 466, 470). In September 2012, Plaintiff's blood pressure was "usually within acceptable range," which supports the ALJ's determination that it could be controlled (id. at 22, 389, 465).
The ALJ gave appropriate consideration to Plaintiff's OSA, diabetes, and hypertension. Plaintiff has not met his burden of demonstrating that the ALJ erred by excluding the symptoms associated with these medical conditions when he crafted Plaintiff's RFC.
Lastly, Plaintiff contends that the ALJ erred by failing to afford controlling weight to Dr. Sakurai's and Ms. Ramírez's opinions of Plaintiff's mental health. Dr. Sakurai diagnosed Plaintiff as having a mood disorder and substance abuse and that his "poor coping skills," "bipolar disorder," and "problems with impulse control" limited his ability to deal with ordinary work stress (id. at 490, 491). Ms. Ramirez, Plaintiff's therapist, reported that Plaintiff suffered from panic attacks with agoraphobia and depressive disorder and that he was unable to cope with normal work stress (id. at 496). Plaintiff faults the ALJ for omitting from the RFC Plaintiff's impaired ability to deal with normal work pressure, as diagnosed by his treating sources, Dr. Sakurai and Ms. Ramírez.
"A treating source is defined by 20 C.F.R. §§ 404.1502, 416.902 as a patient's own physician, psychologist, or other acceptable medical source who has provided medical treatment in an ongoing way." Gagnon v. Astrue, Civil Action No. 1:11-CV-10481-PBS, 2012 WL 1065837, at *5 (D. Mass. Mar. 27, 2012). As explained above, "[w]hile the medical opinion of a treating source is generally afforded more weight than that of a non-treating source, an ALJ may properly give less weight to a medical opinion that is inconsistent with the record as a whole or unsubstantiated by treatments notes." Hargrow v. Colvin, Civil Action No. 13-10170-DJC, 2014 WL 1153782, at *13 (D. Mass. Mar. 19, 2014) (citing 20 C.F.R. § 404.1527(c)). Moreover,
Gagnon, 2012 WL 1065837, at *5. The amount of weight given to a therapist's opinion is based on factors listed in 20 C.F.R. § 404.1527(d). "The factors that an ALJ may use to evaluate the opinion of an `other [medical] source' are (1) how long the source has known the individual and how frequently the source has examined the individual; (2) how consistent the opinion is with other evidence; (3) the degree to which the source presents relevant evidence to support an opinion; (4) how well the source explains the opinion; (5) the source's specialty or area of expertise; and (6) any other factors, such as the source's understanding of the agency's disability programs and evidentiary requirements." Nadeau v. Colvin, Civil Action No. 14-10160-FDS, 2015 WL 1308916, at *8 n. 10 (D. Mass. Mar. 24, 2015). See SSR 06-03p, 2006 WL 2329939, at *4-5.
Because the ALJ found that Ms. Ramírez was not an "acceptable medical source" pursuant to 20 C.F.R. §§ 404.1513(a), 416.913(a), he afforded Ms. Ramírez's opinion "little weight" (A.R. at 23). The ALJ's decision was undergirded by Plaintiff's history of sporadic treatment by Ms. Ramírez, which resulted in a paucity of treatment records, and by the contradiction between Ms. Ramírez's opinion and her GAF scores, which were "in the moderate range" (id. at 23). Ms. Ramírez began treating Plaintiff in June 2009, but the record evidence shows few visits between that date and April 2013 when, according to Dr. Sakurai, City Clinic terminated Plaintiff's treatment because of "no-shows" (id. at 352, 357, 362, 369, 371, 375, 417, 421, 471). Dr. Sakurai's and Ms. Ramírez's treatment notes, which indicate that Plaintiff had missed appointments, corroborated the ALJ's assessment (id. at 316, 355-56, 462). This evidence discredited Plaintiff's hearing testimony that he was seeing Ms. Ramírez two to three times per month for treatment of his depression and anxiety (id. at 44-45). The ALJ further discounted Ms. Ramírez's opinion because he concluded that she did "not have accurate information" from Plaintiff regarding his drug abuse (id. at 23). Although Ms. Ramírez's assessment did not include a diagnosis of alcohol or substance abuse, Dr. Sakurai drew that conclusion, based on Plaintiff's two urine screens, which were positive for cocaine, and Plaintiff's opiate seeking behavior (id. at 456, 467, 471, 490, 505).
The "moderate range" GAF scores that Ms. Ramírez assigned to Plaintiff contradicted her assessment that he was unable to cope with the stress of a job, as the ALJ noted (id. at 23). At the time of Ms. Ramírez's assessment in June 2013, she assigned a GAF score of 55 (id. at 496, 501). In 2010, 2011, and 2012, his GAF scores ranged between 50 and 60, with 55 and 57 being his most consistent scores (id. at 357-360, 362, 369, 378, 417). "A GAF score represents `the clinician's judgment of the individual's overall level of functioning. The GAF score is taken from the GAF scale, which `is to be rated with respect only to psychological, social, and occupational functioning.'" Dietz v. Astrue, Civil Action No. 08-30123-KPN, 2009 WL 1532348, at *6 n. 4 (D. Mass. May 29, 2009) (quoting Munson v. Barnhart, 217 F.Supp.2d 162, 164 n. 2 (D. Me. 2002), quoting DSM-IV-TR at 32, 34 (appendix)). "[GAF] scores may be of help in assessing functional ability, although they are not determinative." Dietz, 2009 WL 1532348, at *6. "A GAF score between 51 and 60 [such as Plaintiff's] is consistent with moderate symptoms and `moderate difficulty in social, occupational, or school functioning.'" Gagnon, 2012 WL 1065837, at *5 (quoting American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders 31 (4th ed. 1994)). The ALJ correctly concluded that Plaintiff's GAF scores did not support Ms. Ramírez's opinion that Plaintiff's was unable to function in a workplace.
While Plaintiff's GAF scores, alone, may not be determinative, when they are viewed in conjunction with the record as a whole, the ALJ's decision to give little weight to Ms. Ramirez's opinion of Plaintiff's functional ability, and, instead, to adopt the opinion of the DDS reviewer, Dr. Langer, is supported by substantial evidence (A.R. at 19).
Despite Dr. Langer's finding of non-severe medical impairments, the ALJ considered Plaintiff's difficulty coping with workplace stress at steps four and five of the sequential evaluation process (A.R. at 19, 102). In conformity with SSR 96-8p, 1996 WL 374184, at *4, the ALJ incorporated a restriction into the RFC to reflect this mental impairment: "simple tasks and unskilled work with few work changes" (A.R. at 19). The ALJ further found that his decision — that Plaintiff was not disabled due to his RFC to perform light work — would not have changed if Plaintiff's psychological impairments had been severe (id. at 25). See 20 C.F.R. 404.1520a; see also SSR 85-15, 1985 WL 56857, at *4 (1985). Because the ALJ included Plaintiff's inability to cope with workplace stressors in the RFC, the distinction between severe and non-severe mental impairments is inconsequential. Compare Vining v. Astrue, 720 F.Supp.2d 126, 132 (D. Me. 2010) (because ALJ adopted an RFC assessment accounting for claimant's condition, there was no error in failure to find that condition severe at step two of the sequential evaluation).
Contrary to Plaintiff's claim, the ALJ included Plaintiff's mental impairments in the hypotheticals that he posed to the VE. "The opinion of a vocational expert that a Social Security claimant can perform certain jobs qualifies as substantial evidence at the fifth step of the analysis" as long as the opinion is "in response to a hypothetical that accurately describes the claimant's limitations." Sousa v. Astrue, 783 F.Supp.2d 226, 235 (D. Mass. 2011). The ALJ specifically asked the VE whether his opinion of the availability of jobs would change if the limitations of "simple, routine tasks, unskilled tasks [with] simple work-related decisions with few workplace changes" were added to the hypothetical (A.R. at 55). The VE indicated that his opinion regarding the availability of light and sedentary unskilled jobs remained unchanged; that is, jobs were available in the national and regional economies (id. at 55). Here, the VE's opinion that an individual with Plaintiff's limitations could perform certain unskilled jobs was based on a hypothetical question that incorporated Plaintiff's mild difficulties in coping with workplace stress, which were reflected in the ALJ's mental RFC (id. at 19-25). "Because the RFC was supported by substantial evidence, the VE's testimony, and the ALJ's reliance on it, were proper." Price v. Astrue, Civil Action No. 11-11207-JGD, 2012 WL 4571752, at *9 (D. Mass. Sept. 28, 2012).
For the reasons stated above, Plaintiff's motion for an order reversing the Commissioner's decision (Dkt. No. 18) is ALLOWED, in part, and, for the reasons detailed herein, the case is remanded for the Commissioner to explain whether medical improvement occurred during the period from June 3, 2011 to October 16, 2012. As for the period after October 16, 2012, the Commissioner's motion to affirm the decision (Dkt. No. 23) is GRANTED.
It is so ordered.
