PATRICIA A. SULLIVAN, Magistrate Judge.
On October 23, 2013, Plaintiff Shaira Aponte Ortiz, a non-English-speaking mother of three who moved to New England from Puerto Rico in August 2013, filed her second application for Supplemental Security Income ("SSI") under § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3) (the "Act"), based on alleged limitations arising from claimed mental impairments consisting of panic attacks, anxiety, depression and bipolar disorder. The Commissioner of Social Security (the "Commissioner") denied her application in reliance on the determination of an Administrative Law Judge ("ALJ") that, despite the impairments of affective disorder and anxiety disorder, she retains the residual functional capacity ("RFC")
Plaintiff has moved to remand or for reversal, arguing that the ALJ failed properly to weigh the medical and other opinion evidence in the record, failed properly to assess Plaintiff's statements regarding the severity of her symptoms, and improperly acted as his own medical expert. Defendant Nancy A. Berryhill asks the Court to affirm the Commissioner's decision. The matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the entire record, I find that the ALJ's findings are amply supported by substantial evidence and recommend that Plaintiff's Motion for Reversal or Remand (ECF No. 9) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 11) be GRANTED.
Plaintiff was a "younger person," twenty-nine years old, on the date she alleges as the onset of disability — March 9, 2012. Tr. 79. At that time she was living in Puerto Rico with her two children, then aged eight and eleven; her third child was born in April 2013. Tr. 196, 359-60. She has her GED and had two brief employment experiences, preparing and delivering pizza and working as a hostess at a school. Tr. 280. Otherwise, she has no past relevant work. Tr. 34, 49-50. While living in Puerto Rico, Plaintiff was found to be fully disabled by the Puerto Rican Administration of Socio-Economic Development Department of Family Nutritional Assistance and Bread-Work Program; documents from Puerto Rico indicate that she was receiving mental health treatment for unspecified conditions and was prescribed Prozac and Klonopin. Tr. 337-40, 346-50. After she moved to Rhode Island and initiated treatment at The Providence Center ("TPC"), Plaintiff stated that medical sources in Puerto Rico had diagnosed bipolar disorder and panic attacks and prescribed Depakote, Paxil, Prozac and Klonopin. Tr. 352. The file under review contains no treating records for the period prior to October 2013 when Plaintiff was first treated at TPC.
Plaintiff's first SSA disability application, also alleging onset on March 9, 2012, was filed on August 13, 2012. Tr. 70. In it, she alleged panic attacks, anxiety and depression. Tr. 70. As far as the record reveals, Tr. 71-74, the only medical evidence presented to support her first application was a consultative examination performed on September 19, 2012, by psychologist Dr. Mark Daniel Sokol.
In connection with the current application, Plaintiff's October 25, 2013, function report states that she cannot be around too many people, but that she is able to care for her six-month-old daughter and two older children, that she goes out for appointments and to take the children to school, that she shops for food, that she attends church twice a week and that she gets along with authority figures (such as "bosses") "fairly well." Tr. 293-300. During her application interview, the field office staffer noted, "[n]o limitations noted, very pleasant, education average, interview in native language." Tr. 277.
Also in connection with the current application, Plaintiff submitted to a consultative examination with psychologist Dr. Lux Teixeira, performed on December 5, 2014. Tr. 359-62. This examination was conducted before Plaintiff began taking prescribed medication to address the symptoms caused by her mental health impairments. Tr. 360. Dr. Teixeira noted that he formed an adequate rapport with Plaintiff; based on testing and observation, he found anxious/depressed affect, depressed mood, fair to poor attention and concentration and impaired abstract reasoning. Tr. 361. He assigned a GAF score
At the hearing before the ALJ, Plaintiff claimed that she cannot work because she cannot be in a group with too many people. Tr. 50. She described debilitating panic attacks, as well as visual and audial hallucinations; she said that she gets upset easily, is depressed and tired, and that her social activities out of the house are limited in that they do not include parties. Tr. 53, 55. Nevertheless, she also testified that she lives with her boyfriend, cares for her youngest child, prepares breakfast, does the cleaning and visits her mother. Tr. 52-53, 54, 57. When asked if there are times when "you just don't do [chores and cleaning] because of how you feel," she responded, "[t]here are moments that I feel very depressed, but — I don't want to do anything at home,
Apart from her report that she once went to an emergency room, Plaintiff has never been hospitalized in connection with her mental health impairments.
As of her October 2013 intake at TPC, Plaintiff had been in New England for just a few months, spoke no English, had a five-month-old baby, was living with her three children (whose father was in prison) and a cousin she did not get along with, and had been off all medications since leaving her prescribers in Puerto Rico. Tr. 352-58. Despite these stresses, the TPC intake assessment notes that she had no limitations in adaptive functioning, except for nutrition (because of her poor appetite), that she had no impairment that might preclude employment for at least one year, that, while her interpersonal circle was limited to family, she was looking for a church to attend. Tr. 353. On mental status examination, she was found to be pleasant with no abnormalities except for her self-report of sadness, depression and anxiety. Tr. 355. The examiner specifically recorded his own observation — inconsistent with her self-report — of "euthymic" affect. Tr. 355. The report concludes:
Tr. 358. A further assessment to rule out bipolar disorder (based on her report that it was a past diagnosis), therapy and a medication evaluation were recommended.
From November 2013 until January 2014, Plaintiff pursued the recommended therapy with a licensed social worker, Sandra Victorino. Tr. 365-73. Not yet on medication, Plaintiff described herself as irritable and with mood swings, Tr. 371, yet she was able to "manage mood with children," her attention and concentration were "alert" and she reported having a supportive family. Tr. 365, 370. Ms. Victorino wrote: "Reports that when she was taking medication reports that she is able to concentrate, have conversations with other and calm. Reports that when on medication she feels goal oriented and focused." Tr. 371.
On January 21, 2014, Plaintiff had the required (by TPC) pre-medication psychiatric evaluation with Dr. Sharath Puttichanda. Tr. 374-76. Despite the observation that "for the past five months she has not been on medication," Dr. Puttichanda found her to be "pleasant and cooperative," "future oriented," "caring for the 8 month old well," that "she seems to convey situational depression induced by stressors," "no disturbances of appetite" and "[n]o gross disturbances of sleep." Tr. 374. On examination, Dr. Puttichanda found:
Tr. 375. Dr. Puttichanda rejected the diagnosis of bipolar disorder:
After this appointment, through May 2014, Ms. Victorino continued therapy while Plaintiff was taking prescribed medication, which was efficacious. Tr. 379-80 ("Ct. reports that feels medication is starting to help"). During these therapy appointments, Ms. Victorino's observations were largely normal, except for depressed and anxious mood, coherent but rapid speech, frequent waking at night and decrease in energy. Tr. 365, 370-73, 379-80, 397. Plaintiff also began to see Nurse Marol Kerge for what the record labels as "medication visit[s]." Tr. 377, 381, 419. Nurse Kerge is described in the record as the "prescriber."
The ALJ's RFC rested on the "substantial weight" he afforded to the opinion of the expert Social Security Administration ("SSA") psychologist, Dr. Jan Jacobson, during the reconsideration phase. Dr. Jacobson based his opinion on his review of the medical records, function report and field office observations summarized above. Signed on May 8, 2014, the opinion concludes that Plaintiff's affective and anxiety disorders amounted to severe impairments, but that the impact on her activities of daily living was mild, while the impact on her social functioning and ability to maintain concentration, persistence and pace was moderate, particularly in light of her "improvement in depression." Tr. 92-93. In forming this opinion, Dr. Jacobson considered the consultative examination report of Dr. Teixeira but noted that the low GAF score mentioned in it was not supported by the treating record. Tr. 93. Regarding Plaintiff's RFC, Dr. Jacobson opined that she is limited in her ability to concentrate, persist and adapt, but that she can perform simple, basic tasks as evidenced by activities reflected in the record, including her capacity to care for and raise three children and attend to activities of daily living and basic household tasks like cooking and cleaning. Tr. 95. His opinion that she could relate adequately to co-workers and supervisors, but not the public, was based on record references to anxiety with others, her interaction with family, shopping and attendance at church, as well as the function report response.
After her application was denied on reconsideration, Plaintiff continued therapy with Ms. Victorino and medication visits with Nurse Kerge. In therapy, Plaintiff addressed a conflict with a cousin that was serious enough for Ms. Victorino to provide guidance about getting a restraining order. Otherwise, the Victorino therapy notes reflect the supportiveness of Plaintiff's mother, who had moved to Rhode Island, and that Plaintiff continued to "benefit[] from med management," and "not as much irritability"; they also reference Plaintiff's willingness to attend a group and to work on learning English. Tr. 397-403.
With Nurse Kerge during this period, there are four appointments. They reflect Nurse Kerge's rising concern about prescribing Depakote without the lab work that, according to Nurse Kerge, Plaintiff persistently failed to procure. Tr. 421, 427;
In his September 29, 2014, opinion, Nurse Kerge opined that Plaintiff would be moderately impaired in her ability to perform even simple work. Tr. 389. It is impossible to discern what clinical sources Nurse Kerge relied on for this aspect of his opinion; he refers to a "psychiatric evaluation," yet the only one of record is that of Dr. Puttichanda, who did not comment on attention, concentration, cognitive capacity or task persistence, although he did observe that Plaintiff had "situational depression," was "future oriented," raising three children, was caring well for her eight-month-old baby, planned to move with her children out of the home shared with a friend because she believed that she "does well when she is by herself," and denied "any deficits in child care." Tr. 374. Also inconsistent with this aspect of his opinion, Nurse Kerge's treating notes reference mental status examinations that consistently reflect, "Fund of Knowledge: Average; Attention & Concentration: Alert; Memory: Intact." Tr. 377, 381, 420, 422, 423, 426, 428.
The other aspect of Nurse Kerge's opinion relates to Plaintiff's ability to interact with the public, co-workers and supervisors; he checked boxes indicating that her ability to deal with the public is markedly limited, while her ability to interact with co-workers and supervisors is even more limited — "extreme." Tr. 390. To support this opinion, Nurse Kerge noted only, "irritability and anxiety considerable."
Once she procured this opinion from Nurse Kerge, Plaintiff appears to have stopped showing up for appointments at TPC. Ultimately in November 2014, she was discharged based on "ftk multiple appointments." Tr. 404. She did not return to TPC until January 2015, when she said that she wanted "to get back on meds." Tr. 407. A new initial assessment on January 13, 2015, noted that "[s]he reports she is a full time mother that has been her primary job," as well as that she had developed a "good relationship" with a new boyfriend.
Plaintiff's contends that the ALJ failed properly to weigh medical and other opinion evidence, failed properly to assess her symptoms and credibility and improperly acted as his own medical expert.
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 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. § 416.905. 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. §§ 416.905-911.
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 her insured status for the purposes of disability benefits.
Substantial weight should be given to the opinion, diagnosis and medical evidence of a treating physician unless there are good reasons to do otherwise.
When a treating physician's opinion does not warrant controlling weight, the ALJ must nevertheless weigh the medical opinion based on the (1) length of the treatment relationship and the frequency of examination; (2) nature and extent of the treatment relationship; (3) medical evidence supporting the opinion; (4) consistency with the record as a whole; (5) specialization in the medical conditions at issue; and (6) other factors which tend to support or contradict the opinion. 20 C.F.R § 416.927(c). A treating physician's opinion is generally entitled to more weight than a consulting physician's opinion.
SSR 96-2p, 1996 WL 374188 (July 2, 1996). The regulations confirm that, "[w]e will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion." 20 C.F.R. § 416.927(c)(2). However, where a treating physician has merely made conclusory statements, the ALJ may afford them such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments.
A treating source who is not a licensed physician or psychologist is not an "acceptable medical source." 20 C.F.R. § 416.913; SSR 06-03p, 2006 WL 2263437, at *2 (Aug. 9, 2006). Only an acceptable medical source may provide a medical opinion entitled to controlling weight to establish the existence of a medically determinable impairment. SSR 06-03p, 2006 WL 2263437, at *2. An "other source," such as a nurse practitioner or licensed clinical social worker, is not an "acceptable medical source," and cannot establish the existence of a medically determinable impairment, though such a source may provide insight into the severity of an impairment, including its impact on the individual's ability to function.
The ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. 20 C.F.R. § 416.927(d). The ALJ is not required to give any special significance to the status of a physician as treating or non-treating in weighing an opinion on whether the claimant meets a listed impairment, a claimant's residual functional capacity ("RFC"),
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 will soon be provided by the Commissioner's 2016 ruling, which supersedes SSR 96-7p.
Plaintiff aims a blunderbuss at the ALJ's approach to the opinion and medical evidence. First, she contends that the ALJ erred in failing to dive into the treating record and assign weight to the findings and observations recorded at the psychiatric evaluation performed by Dr. Puttichanda, at each therapy appointment Plaintiff had with Ms. Victorino and Ms. Kenyon and at each medication visit with Nurse Kerge. Second, Plaintiff attacks the ALJ's treatment of Dr. Teixeira's consultative examination report, arguing that he misread Dr. Teixeira's evaluation of attention and concentration, failed to assign weight to the report and failed to cite the report in support of the RFC. Third, while acknowledging that Nurse Kerge is not an "acceptable medical source,"
Most of this fusillade is troublingly comprised of misstatements of what is actually in the record or misstatements of applicable law. For the reasons that follow, I find that none of her salvos meet the mark.
Plaintiff's opening argument that the ALJ was required to assign weight to every observation or opinion expressed by the TPC team, including Dr. Puttichanda, Ms. Victorino, Ms. Kenyon and Nurse Kerge, is contrary to applicable law. The ALJ's obligation to assign weight is limited to "[m]edical opinions [that] are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 416.927(a)(1). Otherwise, it is well settled that an ALJ may summarize the medical findings, as was done here.
This argument independently fails because the TPC treating notes do not support Plaintiff's conclusion that her limitations are so extreme as to preclude all work. To the contrary, Dr. Puttichanda found Plaintiff to be functioning relatively well in an extremely stressful circumstance resulting in situational depression, despite the lack of the support of the medication she has taken in the past.
Plaintiff's argument that the ALJ's detailed and nuanced discussion of the Teixeira consultative examination report (Tr. 31-32) is tainted must suffer a similar fate. For starters, the contention that the ALJ wrongly labeled Dr. Teixeira's assessment of attention and concentration as "moderate" misquotes the decision. Rather, the ALJ accurately sets out the Teixeira finding of "fair to poor" attention and concentration; it is "limitations with respect to task persistence and social contact" that the decision labels as moderate. Tr. 31. The accusation that the ALJ failed to cite the Teixeira report in support of the RFC is equally inaccurate — the ALJ includes a detailed review of the Teixeira report in the RFC analysis and specifically adopted a restriction to "instructions that are by demonstration rather than oral or written" based on the Teixeira report. Tr. 31-32. And Plaintiff's complaint that the ALJ failed to prescribe a specific weight to the Teixeira report is contrary to the law in this district that such a report is not a "[m]edical opinion" as to which the weight must be articulated.
Plaintiff's attack on the ALJ's discounting of Nurse Kerge's opinion rests on the faulty premise that the opinion is well supported by Nurse Kerge's seven treating encounters with Plaintiff and is consistent with the other TPC records, the Teixeira report and Plaintiff's statements in support of her application. None of these propositions withstands scrutiny. As the ALJ found, confirmed by Dr. Jacobson, Nurse Kerge's own treating notes contradict his opinion. For example, the conclusion that Plaintiff would be moderately impaired in her ability to perform even simple work clashed with Nurse Kerge's consistent treating references to "Fund of Knowledge: Average; Attention & Concentration: Alert; Memory: Intact."
Plaintiff's final attack is her assault on the ALJ's reliance on Dr. Jacobson's opinion. She argues that, instead of reviewing the entire file as of the date of his review, Dr. Jacobson actually performed a blinkered quick-look, examining only three isolated items that are mentioned specifically in the reconsideration findings of fact. Tr. 91-92. This argument is based on a misstatement (troubling to the Court) of what the findings of fact actually say: in addition to quoting in full from two representative treating notes and mentioning "psych CE," it also lists, "Recon Prov Center MER." Tr. 91;
Plaintiff's alternative argument — that Dr. Jacobson's narrative explanations are "anecdotal and nonmedical" — does not make sense. Using his medical expertise as a psychologist, Dr. Jacobson marshaled the record references to Plaintiff exhibiting the capacity to function with respect to each functional category;
At bottom, the law is clear that the ALJ is not required to give greater weight to the opinions of examining sources than to those of the nonexamining consultants.
When Plaintiff's argumentative misstatements of law and fact are swept aside, what remains is a request that this Court re-weigh the evidence, which it must not do.
While conceding that the ALJ cited the correct legal standard for evaluating her subjective symptoms, Plaintiff contends that he failed properly to consider whether her hearing testimony was reasonably consistent with the evidence and failed to give full consideration to the relevant factors listed in 20 C.F.R. § 416.929(c)(3);
The Court's review of Plaintiff's citations to the treating record turned up an array of troubling misstatements and mischaracterizations. By way of a single example, Plaintiff represents that Nurse Kerge's mental status examination of August 2015 reflects "suicidal ideation
Similarly, Plaintiff hyperbolically labels as "egregious," ECF No. 9-1 at 16, the ALJ's finding that her testimony regarding panic attacks, frequent anger and hallucinations was "not entirely credible." She ignores the ALJ's appropriate reliance, buttressed by Dr. Jacobson's observations, on Plaintiff's own statements about effectively caring for her children, including taking them to appointments and school, shopping, going to church, getting along fairly well with authority figures, forming a supportive relationship with a new boyfriend and interacting with family, including going to her mother's house. There is no error in the ALJ's finding that the hearing testimony was inconsistent with these admitted activities, which are reflected in both Plaintiff's statements to treating sources and those made in connection with her application. I find that the ALJ's determination is well supported by substantial evidence.
Finally, I find no basis for remand arising from the ALJ's reliance on Plaintiff's nonattendance at treatment as evidence undermining the credibility of her claim of severe symptoms, despite his failure to ask her why she stopped going.
"[M]indful of the need to tread softly, because it is the responsibility of the Commissioner to determine issues of credibility and to draw inferences from the record," I find no material error in the ALJ's sufficiently-supported determination that Plaintiff's hearing testimony regarding the severity of her subjective symptoms was not entirely credible.
Plaintiff's argument that the ALJ wrongly interpreted raw medical data deserves short shrift.
Based on the foregoing analysis, I recommend that Plaintiff's Motion for Reversal or Remand (ECF No. 9) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 11) 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.
