WILLIAM E. SMITH, Chief District Judge.
In a Report and Recommendation ("R&R") filed on February 23, 2018 (ECF No. 13), Magistrate Judge Patricia A. Sullivan recommended that Plaintiff's Motion To Reverse the Decision of the Commissioner ("Motion To Reverse") (ECF No. 11) be denied and that Defendant's Motion for an Order Affirming the Decision of the Commissioner ("Motion To Affirm") (ECF No. 12) be granted. After carefully reviewing the R&R and the relevant papers, and having heard no objections, the Court ACCEPTS the R&R in its entirety and adopts the recommendations and reasoning outlined therein.
The Court therefore GRANTS Defendant's Motion To Affirm (ECF No. 12) and DENIES Plaintiff's Motion To Reverse (ECF No. 11).
IT IS SO ORDERED.
A "younger person" of thirty at the time of his administrative hearing, Plaintiff Bryan Keith Dixon alleges that he is disabled due to bipolar disorder and attention deficit hyperactivity disorder ("ADHD"), among other impairments. In his motion to reverse the Commissioner's decision denying 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"), Plaintiff claims that the Administrative Law Judge ("ALJ") erred in failing to include a limitation based on the alleged need to work in "some form of structured programming," as reflected in the explanation provided by the non-examining expert psychologist for his initial-level mental review. Plaintiff also claims that the ALJ erred in failing to include a limitation based on the statement that "he may wish to complete one task before moving on to the next," as reflected in a neuropsychological report prepared during a 2014 psychiatric hospitalization. In addition, Plaintiff disputes the limited weight afforded to the opinions of a therapist he saw at the Kent Center. Because of these errors, Plaintiff contends that the ALJ's residual functional capacity
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 no error. Accordingly, 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. 12) be GRANTED.
During childhood, Plaintiff received special education, was repeatedly arrested for assault and for breaking into cars, abused cocaine and alcohol, and was diagnosed with schizoaffective disorder, ADHD and depression. Tr. 514, 525, 640. After completing high school, Plaintiff was criminally charged (ten arrests) with such offenses as disorderly conduct, burglary and cocaine distribution. Tr. 555, 724. He used drugs including "cocaine, benzoes, all types, opioids, heroin, hallucinogens, marijuana, ecstasy, and bath salts." Tr. 587. Plaintiff's work history was sporadic, reflecting jobs, for example in 2011, as a dishwasher, which lasted for no more than five to seven months. Tr. 45, 278-85. The most he ever earned in a single year was when he worked as a dishwasher in 2011; his reported income was $8885. Tr. 207. His first disability application was filed in 2003 and denied on reconsideration. Tr. 237. application is in the record.
On October 20, 2011, Plaintiff was tazed by New Hampshire police after a chase that was precipitated by his attempt to break into a car while he was high on bath salts; during this incident, he fell and hit his head. Tr. 331, 361. He was hospitalized first at Wentworth-Douglas Hospital and then at Massachusetts General Hospital ("MGH") because of a very serious head injury; he had surgery to address a brain hemorrhage and remained at MGH until November 16, 2011. Tr. 375. The record reflects that he appeared to have made a good recovery in that, by November 9, 2011, he was responding "very well to Psych services," and was able to follow three-step commands, although his concentration was limited. Tr. 409. A mental status examination performed on November 15, 2011, was largely normal although he was occasionally sad, with constricted affect, and, while not depressed, he said his mood was "terrible" "b/c i am missing a person." Tr. 407 (doing well, with no agitation/behavioral outbursts). Treating staff concluded that he displayed agitation deemed "2/2 to brain injury superimposed on an individual who is impulsive and socially deviant at baseline."
After he was discharged from MGH, Plaintiff returned to Rhode Island and initiated a primary care treating relationship at Primary Medical Group in November 2011. Tr. 506. Within a month of discharge, he also filed his second disability application alleging onset in January 2010. Tr. 215. The second application file contains a consultative examination report from a psychologist, who found him capable of functioning in the low average range with moderate depression, mild-to-moderate anxiety and "attention/concentration spans varied," Tr. 518, as well as from a neurologist, who found hearing loss and tinnitus, mild gait imbalance and brief positional vertigo from the head injury. Tr. 522. The claim was denied initially in April 2012, Tr. 71, and Plaintiff did not pursue it. After a hiatus without treatment from December 2011 through September 2012, in October, Plaintiff resumed treatment with Dr. Anna Filip, a family practitioner at Thundermist, at the suggestion of his attorney. Tr. 564-70. She prescribed medication to treat depression and ADHD. Tr. 571. By December 5, 2012, her examination reflects largely normal mental findings, including "able to sit still during visit, able to use full sentences and can complete full thoughts . . . much improved since starting Adderall." Tr. 564.
From January 2013 until June 2014, Plaintiff was in jail in New Hampshire. Tr. 28. Based on statements reflecting psychosis (e.g., "I am the son of God"; "I was Batman and became the Joker"), Plaintiff was found incompetent to stand trial
In July 2014, Plaintiff was released by New Hampshire on probation back to Rhode Island; he resumed care with Dr. Filip at Thundermist. Tr. 559. Two weeks later, he filed the pending disability applications, resulting in a prompt file review by expert psychologist Dr. John Warren. Tr. 86-96, 97-107. Meanwhile, Dr. Filip sent him for a medication evaluation to a psychiatric nurse specialist, Nancy Shea. Nurse Shea's August 27, 2014, mental status observations were entirely normal, including focused attention, euthymic mood and appropriate affect. Tr. 555. Opining soon afterwards, Dr. Warren explained his Step Two and Step Three findings: "when sober and involved in some form of structured programming, claimant retains the capacity to perform basic tasks and relate with others well enough for routine workplace purposes." Tr. 91, 102. Dr. Warren opined to an RFC that reflected Plaintiff's ability to perform simple routine, repetitive tasks and instructions, with moderate attentional, social and adaptational limitations. Tr. 91-94, 102-04. Based, inter alia, on Dr. Warren's opinion, the claims were denied initially on September 29, 2014. Tr. 19.
In October 2014, Plaintiff initiated mental health treatment at the Kent Center with a therapist, Ms. Stacie Barden, LCSW, and a psychiatrist, Dr. Liliya Koyfman. During intake with Ms. Barden, Plaintiff stated that, "he thinks that therapy and psychiatry will help him be approved [for SSDI] so `I can collect a check and live off the government,'" as well as (falsely, as far as the MGH record reveals) that he was "in a coma for 19 days"; Ms. Barden recorded her observation of psychosis and his reports of delusions. Tr. 610. According to the record, Plaintiff never saw Ms. Barden again.
Following the second denial, Plaintiff continued to see Dr. Filip and Dr. Koyfman. At a June 2015 appointment with Dr. Koyfman, on examination, she noted appropriate affect, normal concentration and impulse control, with no delusions or hallucinations; the only findings of any significance are "dysphoric" mood and "spontaneous" speech. Tr. 686-87. By August 2015, Dr. Filip's mental status evaluation was essentially normal. Tr. 658. Dr. Koyfman sometimes reported irritated mood and impaired impulse control and concentration, for example at the appointment just before his ALJ hearing. Tr. 728.
After reconsideration, but before the ALJ's hearing, in March and December 2015, Ms. Barden submitted two substantially similar mental RFC assessments; both opine to Plaintiff's inability to attend for extended periods, to perform activities on a schedule or sustain an ordinary routine, as well as to marked social impairments. Tr. 643-45, 696-97. Ms. Barden concludes that, "it is not likely that [Plaintiff] would be capable of engaging in any substantial gainful employment." Tr. 642.
In his decision, the ALJ accepted as severe impairments substance addiction disorder, personality disorder, anxiety and ADHD. Tr. 22. Affording "great weight" to the non-examining expert psychologists (Drs. Warren and Clifford)
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 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.
The ALJ must follow five steps in evaluating a claim of disability.
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 §§ 404.1527(c), 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. §§ 404.1527(c)(2), 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. §§ 404.1513, 416.913; SSR 06-03p, 2006 WL 2263437, at2 (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, at2. 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. SSR 06-03p, 2006 WL 2263437, at2-3. In general, an opinion from an "other source" is not entitled to the same deference as an opinion from a treating 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), 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"),
Plaintiff asks the Court to focus on two sentences in the opinions of two sources. First, he highlights a sentence in the Step Two/Three explanation by the non-examining expert psychologist, Dr. Warren, which was affirmed by the non-examining psychologist at the reconsideration phase, Dr. Clifford. The sentence is as follows:
Tr. 91, 102, 115, 126 (emphasis added). Plaintiff argues that this sentence must be interpreted as cabining Dr. Warren's RFC, meaning that Dr. Warren really opined that Plaintiff can perform simple tasks only in a structured setting, which is inconsistent with the ability to engage in substantial gainful activity. Second, Plaintiff points to the Flashman/Baldasarre report, which states:
Tr. 620 (emphasis added). Plaintiff asks the Court to interpret this Flashman/Baldasarre suggestion as a functional limitation to performing one task at a time, which he asks the Court to find amounts to an RFC that precludes "simple, repetitive work" at jobs that require Reasoning Levels 1 or 2.
Both arguments fail for the same reason. The non-examining expert psychologists opined to function-by-function limitations, comprising Plaintiff's RFC. All of the medical information that informed Dr. Warren's comment about "structured programming" was also considered and incorporated into his RFC opinion.
I find no error in the ALJ's reliance on the Warren/Clifford RFC conclusions and do not recommend remand based on these arguments.
The ALJ's decision states that, "[l]ittle evidentiary weight is given to the mental residual functional capacity offered by one of the claimant's treating therapist, Stacey Barden, LCSW." Tr. 30. As a reason, the ALJ concluded:
Tr. 30 (citing records from Thundermist and Kent Center). Plaintiff contends that this case must be remanded because the ALJ erred in not affording controlling weight or, at least, great weight to the Barden opinions. As grounds, he asks the Court to consider Dr. Koyfman's mental status examination findings, which often include the observations of impaired impulse control, insight and judgment, as well as occasionally impaired memory. He also asks the Court to credit his own statements, all of which he claims are consistent with and supportive of the Barden opinions.
There are serious problems with this argument. For starters, Ms. Barden is a non-acceptable medical source.
At bottom, Plaintiff argues only that the record contains some evidence that is consistent with the Barden opinions. He does not challenge the ALJ's well-supported finding that there is also inconsistent evidence or the ALJ's weighing of the evidence resulting in the pivotal finding of inconsistency when the record is "viewed in its entirety." Tr. 30. status examinations from the Kent Center a mix of normal and abnormal observations, while several from Thundermist are completely normal.
I find that the ALJ's treatment of the Barden opinions rests on a correct application of law to the substantial evidence of record. I do not recommend remand.
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. 12) 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. See Fed. R. Civ. P. 72(b)(2); DRI LR Cv 72(d). Failure to file specific objections in a timely manner constitutes waiver of the right to review by the district judge and the right to appeal the Court's decision.