PATRICIA A. SULLIVAN, Magistrate Judge.
Plaintiff Lori Kandzerski filed disability applications seeking Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under § 205(g) and § 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (the "Act") based on her perception that her back pain and mental impairments prevent her from performing any work. Two expert physicians and two expert psychologists carefully reviewed over five hundred pages of records and opined to less-than-disabling limitations. An occupational therapist who performed a comprehensive functional capacity evaluation at the request of Plaintiff's primary care physician observed that Plaintiff was able to perform at least at the sedentary level but declined opine to her maximum functional level because of "self-limitation and inconsistent level of effort." Otherwise, no medical source has opined to disabling limitations, either physical or mental. Nevertheless, Plaintiff contends that the residual functional capacity ("RFC")
The motion have been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the entire record, I find that the ALJ's findings are more than sufficiently supported by substantial evidence and recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 11) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 14) be GRANTED.
Despite a record, mostly from the Providence Veteran's Administration Medical Center ("VA"), that exceeds 1000 pages, no source has opined that Plaintiff has disabling limitations. During the hearing, the ALJ pointed this deficit out to counsel — "while the records are voluminous, really nobody has indicated a precise functional limitation to rebut the DDS." Tr. 63. In response, counsel represented that opinions were being prepared and would be submitted by Plaintiff's primary care provider (Dr. Dawna Blake) and her treating psychiatrist (Dr. Sadaf Ali).
Instead, Plaintiff submitted a Functional Capacity Evaluation ("FCE") report prepared by an occupational therapist based on testing conducted two days after the ALJ hearing, on December 6, 2013. Tr. 978. The FCE report states that it was "requested by the referring physician [Dr. Blake] to determine the client's current level of function for the purpose of completing disability determination documentation."
Plaintiff claims to perceive her lumbar and cervical spine as causing extreme pain and physical limits. However, the objective medical evidence reflects only "[m]ild degenerative changes." Tr. 326, 398;
To treat her mental impairments, Plaintiff has received regular psychotherapy with a VA therapist, Ms. Ingrid Werge, and had regular appointments for supportive therapy and medical management with VA psychiatrist, Dr. Ali; she also participated in group sessions addressing stress and anxiety led by an array of mental health professionals. Tr. 288-977. At the therapy appointments, she reported anxiety and family stress and had varied mood and/or affect; at times, she reported that she was depressed, anxious, and/or tearful,
In June 2013, at her own request, Plaintiff underwent a "brief screening" by a VA psychologist for post-traumatic stress disorder ("PTSD"). Tr. 691-95. At the time of this evaluation, Plaintiff was treating with Ms. Werge and Dr. Ali; while Ms. Werge was on maternity leave (returning in August), the record does not reveal why Dr. Ali did not perform the evaluation. Tr. 691. During the evaluation, Dr. Schartel observed that Plaintiff's mood and affect were depressed, overwhelmed, anxious and very tearful. Tr. 693. Based on Plaintiff's complaint of repeated trauma over her life, although she denied a single traumatic event, and based on Plaintiff's descriptions of "significant hyperarousal, as evidenced by irritability, sleep disturbance, constant anxiety and panic attacks," Tr. 694, Dr. Schartel diagnosed PTSD and mood disorder. Based on history, Dr. Schartel diagnosed ADHD. Based on Plaintiff's descriptions of rage at a boyfriend (she broke his windshield) and her attack on a woman of whom she was jealous, Dr. Schartel diagnosed personality disorder, rule out borderline personality disorder. Tr. 693. Dr. Schartel discussed treatment options but Plaintiff declined any treatment other than what she was already doing, except that she asked Dr. Schartel to see her for therapy until Ms. Werge returned from maternity leave. Tr. 694-95. Based on this one-time fifty-minute session with Plaintiff, Dr. Schartel assessed a GAF score of 49, which reflects serious symptoms. Tr. 694.
In addition to the activities listed in her function report and during her testimony (simple meal preparation, wash dishes, laundry, sweep, vacuum, mop, making the bed, cleaning the bathroom, taking out the trash, use of public transportation, shopping for food, sewing and visiting with friends), the medical record reflects that Plaintiff was treated several times for poison ivy contracted while she was "trimming bushes" and "in the garden yesterday, . . . digging and clearing weeds." Tr. 704, 762. It also contains references to a trip to Florida with her daughter to help her move and "hobbies of caring for a fish tank, yardwork" and of "working on geneology." Tr. 71-72, 241-43, 583, 594, 696. During the FCE examination in December 2013, Plaintiff told the examiner that she is independent "with self-care ADLs and light IADL tasks." Tr. 978-79. The examiner noted that, despite the claim that she needed assistance with "community tasks especially grocery shopping," she drove herself to and from the FCE examination and "reports no difficulty with driving." Tr. 979.
During the hearing, Plaintiff told the ALJ that she had applied to the VA for a disability pension; however, the VA found her to be only 20% disabled. Tr. 52, 65-66. Also during the hearing, Plaintiff claimed that she must lie down for six hours out of every day and cannot leave her home for five days a week. Tr. 74.
On August 13, 2012, Plaintiff applied for DIB and SSI, alleging disability beginning December 1, 2011. Tr. 161-73. Plaintiff's application was denied initially, Tr. 84-109, 136-39, and on reconsideration, Tr. 110-35, 145-50. At Plaintiff's request, Tr. 153-55, the ALJ held a hearing on December 4, 2013, at which Plaintiff, who was represented by an attorney, testified, Tr. 58-76. An impartial vocational expert also testified. Tr. 76-83. On December 31, 2013, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Act from her alleged onset date through the date of the decision. Tr. 43-57. On June 3, 2015, the Appeals Council denied Plaintiff's request for review, Tr. 10-14, making the ALJ's decision the Commissioner's final decision subject to judicial review. 42 U.S.C. § 405(g).
Plaintiff's motion for reversal rests principally on the argument that the ALJ's RFC finding is tainted by error in that it is based on the state agency physicians and psychologists, whose file review was performed before Dr. Schartel's diagnosis of PTSD and personality disorder and before the FCE report prepared by the occupational therapist at Dr. Blake's request. She also contends that the ALJ erred in basing his adverse credibility finding on Plaintiff's ability to engage in activities that the ALJ found to be inconsistent with her claim of disabling limitations.
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.
The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 416(I); 20 C.F.R. § 404.1505. The impairment must be severe, making the claimant unable to do previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-1511.
When an ALJ decides not to credit a claimant's testimony, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding.
Guidance in evaluating the claimant's statements regarding the intensity, persistence, and limiting effects of subjective symptoms is provided by the Commissioner's 2016 ruling, which superseded SSR 96-7p.
The ALJ principally based his RFC finding on the opinions of the four state agency file reviewers. Tr. 53.
For mental health-based limitations, the ALJ looked to the opinions of the two expert psychologists, Dr. Jan Jacobson and Dr. Lisa Fitzpatrick, who reviewed the available evidence of record and assessed Plaintiff's mental RFC. Tr. 91-93, 103-05. They both found that Plaintiff can manage simple to moderately detailed instructions, can relate adequately to coworkers and supervisors and is able to deal directly with the public on an occasional basis.
For physical limits, the ALJ relied on the opinions of two expert physicians, Dr. R. H. Digby and Dr. Thomas Bennett. Tr. 53. Like the state agency psychologists, they also reviewed the available evidence of record and provided RFC opinions. Tr. 89-91, 101-03. Dr. Digby opined that Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently and could sit, stand or walk for about six hours in an eight-hour workday. Tr. 89, 101. Dr. Bennett's opinion was similar, except that he found that Plaintiff could lift or carry fifty pounds occasionally and twenty pounds frequently. Tr. 116, 128. In his RFC finding, "[o]ut of an abundance of caution," the ALJ adopted the more conservative approach reflected in Dr. Digby's opinion. Tr. 53.
Plaintiff's challenge to the ALJ's reliance on the state agency experts is based on the timing of their file reviews. Performed in November 2012 and April 2013, the file reviews did not consider the massive file that accumulated after the dates on which they were performed. Because the file reviewers did not see all of the medical evidence, Plaintiff argues that the matter should be remanded so a medical expert can review the balance of the record. To buttress the argument, Plaintiff points to two specific records that she contends, if seen by the state agency experts, would have altered their opinions. They are the June 2013 screening report by Dr. Schartel and the December 2013 FCE report.
Plaintiff is certainly correct that almost 320 pages of material was added to the medical record after April 2013, when the file review at the reconsideration phase was concluded. Tr. 15-31, 681-981. However, most of the new material reflects treatment in connection with an acute attack of diverticulitis, which required surgery, but is not related to Plaintiff's claim of disability. Tr. 49. Otherwise, the pre-April 2013 record is very similar to the post-April 2013 record, in that Plaintiff continued to make similar complaints and to get similar treatment with Dr. Blake and others for her back pain, and continued to make similar complaints and to get similar treatment with Dr. Ali, Ms. Werge and others with respect to the mental impairments.
There is no error in the ALJ's reliance on the state agency expert opinions in such circumstances.
Accordingly, if there be error here, it will be exposed only by a laser-like focus on the two documents that Plaintiff claims would have altered the file reviewers' opinions if they had been included in the review set.
Focusing first on the June 2013 PTSD screening by Dr. Schartel, which resulted in the new diagnoses of PTSD, personality disorder, and rule out borderline personality disorder, Plaintiff argues that she reported new symptoms of "repeated, disturbing memories, feeling very upset when reminded of past traumatic events, having angry outbursts, and difficulty concentrating," Pl.'s Mem. at 8, as well as that the diagnosis of personality disorder may have affected the file reviewers' opinions,
Consistent with this conclusion, Dr. Schartel's new diagnoses did not affect Plaintiff's treatment. Tr. 694-95. Rather, they simply add new labels to the same impairments. Thus, the Schartel opinion does not reflect greater functional restrictions than those addressed in the pre-April 2013 record examined by the state agency experts. There is nothing in the Schartel report that could call their expert opinions into question.
Plaintiff's alternative argument is focused on the occupational therapist's FCE report prepared in December 2013, well after the file review was performed. She contends that the FCE report opines that she is limited to sedentary work and that, at her age, that is enough to be disabling. She argues that the matter should be remanded for further consideration of this critical opinion by a qualified medical expert.
Based on the foregoing, I find that the ALJ's RFC finding is amply supported by the substantial evidence of record and recommend that it be affirmed.
Plaintiff's credibility argument appears to be entirely lacking in substance. The ALJ properly contrasted Plaintiff's claim that she must lie down six hours of every day and cannot leave her house most of the time, Tr. 74, with her statements in connection with these applications and to treatment providers that she is independent in activities of daily living, and can prepare simple meals, make the bed, take out the trash, wash dishes, shop, use public transportation, sew and perform yard work (digging, clearing weeds and trimming bushes). Tr. 52-53. He correctly compared the objective evidence of Plaintiff's at-times normal gait, negative straight leg raise tests and normal musculoskeletal examinations with her extreme complaints of disabling pain, as well as her generally intact memory, concentration and attention with her complaints of disabling mental limitations. Tr. 53. The ALJ's credibility finding is further appropriately buttressed by Plaintiff's exaggeration of symptoms during the FCE examination conducted specifically to support her disability claim: "[c]linical observations did not match [Plaintiff's] reported level of pain as she reported severely disabling pain however was able to move through AROM without complaint of pain and was able to complete functional testing without report of increased pain." Tr. 54;
It is difficult to conjure what is erroneous about this analysis. One focus of Plaintiff's argument seems to be based on the incorrect assumption that the ALJ should have explored, for example, how much time she spent digging in her garden and clearing weeds before relying on this information as a reason to discount her credibility. The balance of Plaintiff's credibility challenge seems to be that the ALJ failed to consider the interaction of her mental and physical disorders though she does not explain why or how that impacted the ALJ's finding that she overstated her symptoms.
I find that the ALJ's adverse credibility finding is amply supported by specific findings that are well grounded in substantial evidence. It is untainted by error and well entitled to this Court's deference.
Based on the foregoing analysis, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 11) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 14) 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.