PATRICIA A. SULLIVAN, Magistrate Judge.
A refugee who fled war-torn Cambodia when she was twenty-two, Plaintiff Ann Phan claims that she has been disabled since May 2007 because of major depressive disorder, post-traumatic stress disorder ("PTSD"), an anxiety disorder, a pain syndrome, carpal tunnel syndrome, De Quervain's syndrome and right shoulder tendinitis.
This matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the record, I find no legal error and that the ALJ's findings are well supported by substantial evidence; I also find that this Court is not authorized to review the Commissioner's determination regarding reopening. Accordingly, I recommend that Plaintiff's Motion for Reversal of the Disability Determination of the Commissioner of Social Security (ECF No. 7) be DENIED and the Commissioner's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 9) be GRANTED.
Plaintiff Ann Phan was born in 1958 in Cambodia. Tr. 158, 165, 502. During her childhood, she and her family were swept up in the violence of war; her mother died in childbirth, her father was executed and two half siblings died due to the lack of medical treatment. Tr. 351, 479. She was able to attend school only through third grade. Tr. 207. She speaks and understands English with difficulty, and cannot read or write it. Tr. 202, 207.
Plaintiff escaped Cambodia with her husband when she was twenty-two. Tr. 502. Over the years since, she has lived in Rhode Island, had three children, divorced her overly controlling husband and worked full-time in factories as an assembler, an inspector/mender and a stone setter. Tr. 241, 351. In January 2007, a workplace injury caused cervical radiculitis and shoulder tendinitis, which was covered by worker's compensation. Plaintiff was treated and, in May 2007, released to return to work. Tr. 305. By the end of May 2007, she had resumed "pretty much all her regular work activities." Tr. 304. Soon after, however, she was fired, she believes, as retaliation for having filed a worker's compensation claim. Tr. 304;
Plaintiff's 2008 applications alleged disability since May 2007 as a result of bilateral shoulder pain, neck pain, knee pain, depression, PTSD, poor memory, anxiety, nightmares and stomach pain. Tr. 86. The only treating source opinion from this period is that of Dr. Austin, who opined that she is able to work with a limitation only on lifting more than twenty-five pounds. Tr. 298. Otherwise, her medical records do not reflect any seriously limiting condition. For example, during 2009, her primary care physician at the Rhode Island Hospital primary care clinic,
In October 2008, Dr. Erik P. Purins, a state agency physician, reviewed Plaintiff's medical records and concluded that she could perform light work, with limitations on lifting more than ten pounds frequently and twenty pounds occasionally, as well as on overhead reaching; his opinion refers to Dr. Austin's conclusions. Tr. 308-14. In December 2008, state agency psychologist, Dr. Louis Turchetta, performed a consultative psychological evaluation. Tr. 315. He assigned a Global Assessment of Functioning ("GAF") score of 50;
On February 18, 2009, Plaintiff's first set of applications were denied initially. Tr. 86. A few months later, Dr. Ravindran observed that testing to determine the etiology of Plaintiff's complaints of muscle pain was negative; he had considered chronic fatigue syndrome, fibromyalgia or somatization of depression but made no diagnosis. Tr. 473. In light of an increase in the severity of her depression, he recommended psychological therapy, in addition to medication, and made arrangements for her to start treatment at Kent Mental Health Services ("Kent").
On October 31, 2009, Plaintiff's request for reconsideration of the adverse decision on her first set of disability applications was denied. Tr. 91. Although the notice from the Social Security Administration ("SSA") plainly advised that Plaintiff had the right to request a hearing if she did not agree with the decision, Tr. 91, Plaintiff did nothing. Sixty days later, the adverse decision became final.
Within one year of the denial of the first set of applications, this time with the assistance of an attorney, Plaintiff filed her second set of applications on February 3, 2010. Tr. 289. They allege the same onset date and claim similar disabling conditions: major depressive disorder, PTSD, an anxiety disorder, a pain syndrome, carpal tunnel syndrome, De Quervain's syndrome, right shoulder tendinitis and other conditions not relevant to this proceeding. Tr. 21-22, 39. At the same time, Plaintiff requested reopening of the prior claims. Tr. 41, 293.
Based on the referral by Dr. Ravindran, in November 2009, Plaintiff began mental health treatment at Kent. An initial assessment resulted in diagnoses of major depression, PTSD and an anxiety disorder, as well as a GAF score of 45.
In May 2010, state agency psychiatrist, Dr. Charles Hale reviewed the evidence and recommended a complete mental status evaluation. Tr. 414. In June, state agency psychologist J. Stephen Clifford reviewed the case and noted that the references to memory loss were not supported by memory testing and echoed the need for a psychiatric consultative examination. Tr. 415. In response, in July 2010, Plaintiff underwent a consultative psychological evaluation conducted by state agency psychologist, Dr. William Unger. Tr. 501. He found symptoms of depression, that Plaintiff's attention, concentration and task persistence were poor, but that she denied hallucinations, delusions, manic symptoms or suicidal ideation. Tr. 504. No symptoms of PTSD, panic disorder, or a formal anxiety disorder were reported or observed. Tr. 504. Dr. Unger assigned a GAF score of 55.
In August 2010, state agency psychologist Dr. MaryAnn A. Paxon reviewed the file, including Dr. Turchetta's report from the prior application, the Kent records, Dr. Ravindran's notes and Dr. Unger's report. She prepared a mental RFC that concluded that Plaintiff was moderately limited in attention and concentration and the ability to understand, remember and carry out detailed instructions, to complete a work week without interruptions and to respond to changes in the work setting, but otherwise not significantly limited. Tr. 497-99. On August 27, 2010, Plaintiff's new applications were denied initially. Tr. 99. In October 2010, state agency psychologist Dr. Michael Slavit reviewed the updated medical record and agreed with Dr. Paxson's assessment. Tr. 508. On January 4, 2011, Plaintiff's request for reconsideration of the adverse decision was denied. Tr. 103. She requested a hearing, set for February 2, 2012.
Following the administrative denial, in the spring of 2011, Dr. Ravindran's notes reflect a worsening of Plaintiff's depression. Tr. 525, 530. Several months before the hearing, after a gap of over a year, Plaintiff returned to Kent for a mental health assessment in October 2011. Instead of seeing a psychologist, she had an initial meeting with Priscilla Heslin, a licensed social worker, who diagnosed manic/depressive disorder, PTSD and an unspecified anxiety disorder, assessed a GAF score of 47 and developed a treatment plan, which included a notation that Plaintiff is "looking for a new job." Tr. 548-49, 562. Plaintiff apparently saw Ms. Heslin for treatment once, on November 1, 2011. Tr. 559. Her notes from that session state that Plaintiff was cooperative, appropriate in talk, speech, behavior and appearance, adequate in mood, though sad/depressed, and that no other symptoms (such as hallucinations or delusional beliefs) were observed. Tr. 559-60. Less than two months later, on December 28, 2011, Ms. Heslin filled out a mental RFC questionnaire form opining that Plaintiff has no useful ability to do unskilled work, in effect that she is almost completely dysfunctional. Tr. 568-69. Contrary to the record and her own treatment notes, Ms. Heslin also opined that Plaintiff had hallucinations, recurrent severe panic attacks and other symptoms. Tr. 567. Ms. Heslin is the only treating source whose opinion supports the conclusion that Plaintiff is disabled.
Plaintiff's medical record reflects complaints of pain but no aggressive treatment. To develop the record, in April 2010, state agency physician Dr. Okosun Edoro performed a consultative examination to explore neck, shoulder and back pain and carpal tunnel syndrome. Tr. 410. Examination of Plaintiff's spine showed some tenderness with mild limitation of motion. Tr. 411-12. Otherwise, she exhibited negative straight leg raising, the ability to walk with a normal gait and squat without difficulty, full range of shoulder motion (despite some tenderness) and no swelling or tenderness of hand or wrist joints; Dr. Edoro found full range of motion and normal sense of touch and bilateral grip strength in both hands, noting only that Tinel's sign was positive bilaterally, showing possible nerve irritation. Tr. 411-12. In April 2010, Dr. Joseph Callaghan, a state agency reviewer, concluded that Plaintiff could stand/or walk for six hours a day and sit for six hours a day based on the absence of objective findings of carpal tunnel syndrome, the absence of surgery and limited treatment for the other complaints. Tr. 402-09. In August 2010, Plaintiff's applications were denied initially. Tr. 99. Nerve conduction studies and an EMG in October 2010 were normal, with no sign of carpal tunnel syndrome. Tr. 511. In connection with reconsideration, in December 2010, Dr. Henry Laurelli reviewed the updated record and affirmed Dr. Callaghan's April 2010 assessment. Tr. 509. No treating source opined to the contrary. In January 2011, her request for reconsideration of the adverse determination was denied. Tr. 103.
During 2011, Plaintiff continued to see her primary care providers about her complaints of generalized body aches, low back pain and left wrist and forearm pain. Tr. 527. With the persistence of these complaints, Dr. Ravindran referred Plaintiff to a rheumatologist, Dr. Candace Yuvienco, who noted that fibromyalgia and osteoarthritis contribute to her pain, though it is not clear who diagnosed those conditions. Tr. 522, 525. Dr. Yuvienco did diagnose De Quervain's tenosynovitis in the left wrist due to repetitive trauma, but noted that the pain resolved with a steroid injection; she also recommended physical therapy to address shoulder pain, concluded that Lyrica was helping with the other pains and made an appointment for Plaintiff to return for follow-up in six months. Tr. 521-22.
After Plaintiff's applications were denied initially on August 27, 2010, and on reconsideration on January 4, 2011, Tr. 82-85, 99-108, Plaintiff sought a hearing before an ALJ, which was held on February 2, 2012. Tr. 37, 109. At the hearing, Plaintiff was represented by counsel. She testified with the assistance of an interpreter; vocational expert Paul Murgo and Plaintiff's daughter Jenda Chi also testified. Tr. 37-77. On February 12, 2012, the ALJ issued a decision that denied Plaintiff's applications and rejected her request to reopen her prior applications. Tr. 16-36. Plaintiff subsequently sought review by the Appeals Council, which denied her request on July 26, 2013, making the ALJ's decision final. Tr. 1-6. Plaintiff timely filed this action. Unlike her first applications, Plaintiff's second applications were consistently pursued with the assistance of an attorney.
At the hearing, Plaintiff testified that she had been fired in May 2007 and had not looked for work after that due to pain in her shoulder and hands. Tr. 45-46. She claimed she can only sit for twenty minutes at a time, stand for ten minutes, walk for twenty minutes, lift and carry only eight pounds (and for no more than three minutes). Tr. 46-47. She asserted that she has trouble using her hands (and can write only briefly) and arms for repetitive actions and overhead reaching. Tr. 48. She has trouble using her legs for operation of foot controls and with stooping, crouching and kneeling. Tr. 48-49. She has problems with memory and concentration, stress and interacting with coworkers and supervisors. Tr. 49. She claimed that she does virtually no house chores, does not shop, never visits friends or relatives, goes to religious events only twice a year and has no hobbies. Tr. 51-52. During the day, she watches a little television and takes four rest breaks (thirty minutes each). Tr. 52.
The vocational expert, Paul Murgo, testified that Plaintiff's past jobs as an assembler and fabric inspector are light and unskilled. Tr. 63. The ALJ asked Mr. Murgo to assume that Plaintiff: 1) is limited to lifting and carrying no more than twenty-five pounds; 2) can stand and walk at least six hours in an eight-hour work day and can also sit for six hours; 3) can occasionally crawl and reach above shoulder level with her right arm; 4) would have to avoid all exposure to hazardous machinery and heights; and 5) is limited to simple, routine, repetitive tasks in a stable environment. Tr. 70. Given such limitations, Mr. Murgo opined that Plaintiff should be able to do both her past light jobs. Tr. 71.
In his written decision, the ALJ first found that Plaintiff met the insured requirements of the Act through December 31, 2012. Tr. 21. At Step One, he found that Plaintiff had not engaged in substantial gainful activity since May 30, 2007, the date she allegedly became disabled.
To develop his RFC at Step Four, the ALJ sifted carefully through the medical evidence from the date of onset. He assigned considerable weight to the opinions of state agency physician Dr. Callaghan and psychologist Dr. Paxson and made extensive findings regarding why he concluded that Plaintiff's claims regarding the severity of her symptoms lacked credibility. He also carefully examined the only opinion in the record that supports a finding of disability, that of Ms. Heslin. He decided to give it no substantial evidentiary weight because it is based on a limited treating relationship; is inconsistent with Plaintiff's positive response to treatment in 2010; is inconsistent with the other medical evidence both in terms of the symptoms described and the severity ascribed to them; and is inconsistent with Ms. Heslin's own treating notes. In addition, Ms. Heslin is not an acceptable medical source and is not qualified to made a judgment regarding competitive work.
Based on this analysis, the ALJ made the following RFC finding:
Tr. 24-30. Finding that she could perform her past work as an assembler and inspector/mender, the ALJ found Plaintiff not disabled and denied her second set of applications. Tr. 31. He also denied her request to reopen the first set, noting inter alia that Dr. Austin had recommended that Plaintiff return to work with a limitation only on lifting more than twenty-five pounds, that, for much of the period, she did not take psychiatric medication for depression and that, by the end of the period, her depression was stable with occasional Prozac. Tr. 25-27. With no new evidence suggesting any reason to question these conclusions, he found no basis to reopen and revise the prior determination. Tr. 25, 27.
Plaintiff presents three arguments:
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — that is, the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion.
The determination of substantiality is based upon an evaluation of the record as a whole.
The Court must reverse the ALJ's decision on plenary review, if the ALJ applies incorrect law, or if the ALJ fails to provide the Court with sufficient reasoning to determine that the law was applied properly.
The Court may remand a case to the Commissioner for a rehearing under Sentence Four of 42 U.S.C. § 405(g); under Sentence Six of 42 U.S.C. § 405(g); or under both sentences.
To remand under Sentence Four, the Court must either find that the Commissioner's decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim.
In contrast, Sentence Six of 42 U.S.C. § 405(g) provides:
42 U.S.C. § 405(g). To remand under Sentence Six, the claimant must establish: (1) that there is new, non-cumulative evidence; (2) that the evidence is material, relevant and probative so that there is a reasonable possibility that it would change the administrative result; and (3) there is good cause for failure to submit the evidence at the administrative level.
With a Sentence Six remand, the parties must return to the Court after remand to file modified findings of fact.
The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(I), 423(d)(1); 20 C.F.R. § 404.1505. The impairment must be severe, making the claimant unable to do previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-1511.
Substantial weight should be given to the opinion, diagnosis and medical evidence of a treating physician unless there are good reasons to do otherwise.
Where a treating physician has merely made conclusory statements, the ALJ may afford them such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments.
A treating source who is not a licensed physician or psychologist
The ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. 20 C.F.R. § 404.1527(d). The ALJ is not required to give any special significance to the status of a physician as treating or non-treating in weighing an opinion on whether the claimant meets a listed impairment, a claimant's RFC (
Social Security proceedings are "inquisitorial rather than adversarial."
The ALJ is required to order additional medical tests and examinations only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517;
The ALJ must follow five steps in evaluating a claim of disability.
In determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments and must consider any medically severe combination of impairments throughout the disability determination process. 42 U.S.C. § 423(d)(2)(B). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled.
The claimant must prove the existence of a disability on or before the last day of insured status for the purposes of disability benefits.
With a dearth of competent opinion evidence to justify a finding of disability, Plaintiff argues vehemently that it was error for the ALJ not to call a medical expert. The argument rests on four legs: first, the ALJ erred in his treatment of the GAF opinions, applying his own uneducated guess as to what they mean; second, the ALJ relied on his personal experience with De Quervain's syndrome in finding that neither carpal tunnel nor De Quervain's are severe impairments at Step Two; third, the ALJ needed a medical expert to explain an apparent year-long gap in Plaintiff's mental health treatment from July 2010 to July 2011; and fourth, the ALJ needed a medical expert because of flaws in the opinion evidence.
"Administrative law judges may also ask for and consider opinions from medical experts." 20 C.F.R. § 404.1527(e)(2)(iii). "Use of a medical advisor in appropriate cases is a matter left to the [Commissioner's] discretion; nothing in the Act or regulations requires it."
There is no need to linger over the ALJ's treatment of the GAF evidence. Consistent with the SSA Admin Message,
Consistent with the Admin Message, the ALJ properly gave the most weight to Plaintiff's highest GAF score, 75 ("no more than slight impairment") — it is the opinion of treating psychologist Dr. Ringeling, who concluded that Plaintiff's depression was in remission after eight months of treatment and numerous counselling sessions.
Plaintiff's second argument, in support of his claim of error based on no medical expert to opine on wrist/hand pain, is equally flawed. The ALJ did not base his Step Two finding that neither De Quervain's syndrome nor carpal tunnel syndrome constitutes a serious impairment on his own experience with De Quervain's, despite his comment at the hearing.
There is no question that the ALJ's offhand reference to his personal medical experience with De Quervain's is unfortunate and inappropriate; the transcript reflects that he stopped himself in mid-sentence, Tr. 56, doubtless in recognition that his personal experience has no place in a case over which he is presiding. Nevertheless, his decision is plain that it is based exclusively on substantial medical evidence.
The third argument — that it was error not to call a medical expert to explain an apparent treatment gap — does not withstand scrutiny either. The argument is based on the ALJ's question to Plaintiff's attorney during the hearing: "It looks like she . . . was out of treatment [for emotional difficulties] for a long time and then recently returned . . . like, a giant gap . . . Is that accurate?" Tr. 56. Based on their colloquy, it appears that neither the ALJ nor Plaintiff's attorney had had time to digest the most recently produced medical records that fill in much of the gap about which the ALJ inquired and counsel could not clarify:
Tr. 57. Plaintiff bootstraps this question into the foundation for an argument that the ALJ should have called a medical expert to explain the apparent treatment gap.
A quick look of the complete record eliminates the one-year gap that caused the ALJ and counsel so much confusion. It also provides an explanation for the two "gaps" that remain. Plaintiff ended counselling at Kent in June 2010 because she had achieved all her goals ("I feel fine now"). Tr. 421-23. She was treated for depression (with medication) by Dr. Ravindran at Rhode Island Hospital continuously from the end of treatment at Kent in 2010 and into 2011; he recorded that the depression "is under reasonably good control." Tr. 510-37. This is not a gap in treatment but rather a hiatus from counselling because Plaintiff did not need or want it. This changed in February 2011, when Dr. Ravindran notes that "[d]epression is still not under control" and that Plaintiff needs a referral to "psych." Tr. 530. The "psych" referral did not happen until October 2011, when Plaintiff had an intake appointment at Kent. This gap, from February to October 2011, was explained at the hearing by Plaintiff's daughter who testified that "the problem with the Kent Center was she fell in a gap hole somewhere. Her referrals got lost."
In his decision, the ALJ appropriately relied only on Plaintiff's successful conclusion of treatment at Kent in June 2010, followed by months when she did not need counselling, as evidence that Plaintiff's claim of debilitating depression during the same period lacks credibility. Tr. 27. I see no error in the ALJ's failure to call a medical expert to opine on the meaning of these treatment gaps, where the record itself affords a clear explanation and the ALJ's reliance on the mental health gap when Plaintiff was doing well is well supported by the evidence.
Plaintiff's fourth argument — the ALJ needed a medical expert once he rejected Ms. Heslin's opinion because the balance of the opinion evidence is flawed — merges into his frontal attack on the ALJ's treatment of the opinion evidence. I address these arguments together next.
Plaintiff's critique of the ALJ's weighing of the opinion evidence begins with her dissatisfaction with the ALJ's decision to afford no substantial evidentiary weight to Ms. Heslin's opinion and then focuses on the "obvious conflict" that Plaintiff contends exists between the state agency reviewers, who opined that Plaintiff's attention and concentration impairments cause moderate limitations, Tr. 343, 497, and the examining sources, who opined that Plaintiff's attention and concentration are "poor." Tr. 504;
There is no error in the ALJ's rejection of Ms. Heslin's opinion. For starters, the ALJ did not reject it simply because she is not an acceptable treating source or based on speculation that Plaintiff is not impaired. Rather, the ALJ took Ms. Heslin's status as a non-treating source into consideration, but nevertheless assessed the weight to afford her Mental RFC Questionnaire by reference to the traditional analytical framework for treating source opinions regarding the severity of symptoms. Tr. 566. He rejected it because Ms. Heslin's opinion is starkly inconsistent with the balance of the medical record, including her own treatment notes, particularly her opinion that Plaintiff's symptoms include "hallucinations or delusions," "recurrent severe panic attacks," "persistent irrational fear" and "paranoid thinking or inappropriate suspiciousness."
The ALJ's determination to afford "no substantial evidentiary weight" to Ms. Heslin's opinion is well supported by substantial evidence and consistent with applicable legal standards.
Plaintiff next aims at the mental RFC opinion evidence from the state agency non-examining psychological reviewers, to which the ALJ gave the considerable weight. Tr. 27. She argues that there is an inconsistency between the reports of the examining evaluators (Drs. Turchetta and Unger), both of whom found Plaintiff's attention and concentration to be poor, and the RFC conclusions of the psychologists (Drs. Clifford and Paxson) who opined that Plaintiff is moderately limited in her "ability to maintain attention and concentration for extended periods." Tr. 343, 497. In leveling this criticism, Plaintiff relies on her lay interpretation of "poor" concentration and attention in the examining reports. However, the record is clear that Dr. Clifford reviewed and accepted Dr. Unger's report in forming his opinion, while Dr. Paxson reviewed and accepted Dr. Turchetta's report in forming hers; neither Dr. Clifford nor Dr. Paxson found any inconsistency between the conclusions of the examiners that attention and concentration are "poor" and his/her own opinion that this causes "moderate" limitations. Plaintiff's argument rests on her disappointment that two qualified medical professionals came to the same conclusion — that Plaintiff's "poor" attention/concentration translates into moderate limitations. The ALJ is well justified in his reliance on the RFC opinions of Drs. Clifford and Paxson. 20 C.F.R. § 404.1527;
Relatedly, Plaintiff attacks the age of all of the state agency opinions. Over the pendency of Plaintiff's two applications, a total of twelve state agency opinions were procured (three involving a consultative examination). Nevertheless, Plaintiff is right that the most recent one was prepared on December 13, 2010, fourteen months before the hearing in February 2012. Plaintiff is also correct that, because of this timing, the medical experts did not review the most recent medical reports from Rhode Island Hospital and Kent. Nevertheless, this argument fails to establish error requiring remand because, after November/December 2010, when the most recent record review was performed, there is no evidence of a sustained (and material) worsening in Plaintiff's condition.
Plaintiff's last argument focuses on the physical RFC assessment of Dr. Callaghan, who opined that Plaintiff could occasionally lift up to fifty pounds. Although the ALJ afforded the balance of Dr. Callaghan's opinion "considerable weight," he noted during the hearing that Dr. Callaghan's opinion about Plaintiff's ability to lift fifty pounds is "a little bit optimistic." Tr. 70. As a result, the hypothetical posed to the VE and the ultimate RFC finding both reflect the ability to lift only twenty-five pounds occasionally. Tr. 24, 30, 70. In his decision, where he lays out the evidence that he considered in forming his RFC, the ALJ states that the medical source that constitutes the evidentiary support for this finding is Dr. Austin, who had opined that Plaintiff could return to prior work with a limitation on lifting more than twenty-five pounds. Tr. 24, 30;
To conclude, the ALJ's weighing of the opinion evidence is well supported by substantial evidence, so that the ALJ's RFC is appropriately anchored in the record. Further, there is no error in the ALJ's exercise of his discretion not to seek further medical expertise.
When a disappointed claimant fails to appeal, the decision becomes final, the claimant loses the "right to further review" and a new application for the same period is barred by administrative res judicata. 20 C.F.R. § 404.987(a). Within one year of when the adverse decision becomes final, the claimant may ask for reopening "for any reason," and the Commissioner "may" grant such a request. 20 C.F.R. § 404.988(a). A request for reopening within one year does not confer the "right" to reopening; rather, the operative word in § 404.988 is "may," which makes clear that reopening based on a request made within one year is subject to the discretion of the Commissioner.
Plaintiff contends that the ALJ clearly erred in that he applied the "good cause" standard in denying Plaintiff's request to reopen made within one year; as a result of this error, Plaintiff argues that the ALJ improperly imposed the requirement that she produce medical evidence not considered by the state agency physicians and psychologists. The premise for this argument is belied by the decision, which does not advert to "good cause." Rather, the ALJ simply found "no basis to reopen," relying on a careful review of the evidence from the period covered by the prior applications. Tr. 25, 27. With no new evidence, a well-supported determination of no disability, and nothing to support reopening beyond Plaintiff's unvarnished argument that reopening is justified by her lack of an attorney, her language problems and her "medical health issues," the ALJ denied the request. Tr. 41.
Whether the ALJ applied the discretion standard or the good cause standard
I recommend that Plaintiff's Motion for Reversal of the Disability Determination of the Commissioner of Social Security (ECF No. 7) be DENIED and the Commissioner's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 9) be GRANTED.
Any objection to this report and recommendation must be specific and must be served and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting party.
