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Lopez v. Colvin

United States District Court, D. Massachusetts

March 31, 2017

FERNANDO DIAZ LOPEZ, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION FOR ORDER REVERSING DECISION OF COMMISSIONER AND DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER (DKT. NOS. 18 & 23)

          KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         This action seeks review of a final decision of the Acting Commissioner of Social Security (“Commissioner”) denying the application of Plaintiff Fernando Diaz Lopez (“Plaintiff”) for Supplemental Security Income (“SSI”).[1] Plaintiff applied for SSI on August 29, 2012, alleging disability on the basis of depression, suicidal and homicidal ideation, schizophrenia, bipolar disorder, and anxiety and a January 1, 2008 onset of disability (A.R. at 17, 65, 152-60). The application was denied initially and on reconsideration (id. at 77-83, 88-90). After a hearing on December 2, 2013, the Administrative Law Judge (“ALJ”) found that Plaintiff was not disabled and denied Plaintiff's claim (id. at 11-34). The Appeals Council denied review (id. at 1-8), and, thus, the ALJ's decision became the final decision of the Commissioner. This appeal followed.

         Plaintiff seeks reversal of the Commissioner's denial of his claim on the grounds that the ALJ erred by committing a combination of legal and factual errors. The Commissioner has moved to affirm on the grounds that the ALJ's decision is legally sound and supported by substantial evidence. Pending before this court are Plaintiff's Motion for Order Reversing Decision of Commissioner (Dkt. No. 18) and the Commissioner's Motion for Order Affirming the Decision of the Commissioner (Dkt. No. 23). The parties have consented to this court's jurisdiction (Dkt. No. 14). See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the reasons stated below, the court will deny Plaintiff's motion and grant the Commissioner's motion.

         II. Facts

         A. Educational and Occupational History and Daily Living Activities

         Plaintiff was 38 years old when he filed his application (A.R. at 152). He graduated from high school in Puerto Rico and thereafter attended a year of technical school (id. at 41). He was employed in Puerto Rico as a security guard from 1994 through 1997 and worked in maintenance from 1997 through 2001 (id. at 206).

         In an October 10, 2010 function report submitted to, and translated by, the SSA, Plaintiff reported that he watched TV and played videogames and he had no problems engaging in these activities, nor did he have problems attending to his personal needs. He went to medical appointments but otherwise stayed home. He did not help around the house or care for anyone or any pets or other animals. He was able to go shopping occasionally if he needed to do so, and he could manage his financial affairs. He spent time with others on the phone and in person, although he only occasionally spent time socially with friends. He did not need to be reminded to go places, nor did he need someone to accompany him. He had trouble with concentration and following instructions, got along well with authority figures and had not been fired from a job because of problems getting along with people. He did not know how to manage stress, did not handle changes in routine very well, and had visual and auditory hallucinations (id. at 212-19). The function report form was signed by Plaintiff's mother on October 10, 2012 (id. at 219).

         B. Medical Records Related to Mental Impairments[2]

         1. Medical Records from Puerto Rico

         On August 5, 1999, Plaintiff was seen at a psychiatric hospital for evaluation and psychiatric assessment after he held a knife to his wife's throat (id. at 715, 717). He reported that he was depressed, had visions, was neglecting to take his medications, and wanted to jump off of a bridge (id. at 715). He had told his mother that he was going to see, and empathized with, the devil, that he felt something inside him telling him to do bad things, and that he has to do them to calm himself down. He was judged by the hospital staff to be at high risk of suicide (id. at 719). He had no past history of hospitalizations, and was not taking psychotropic medications (id. at 718, 726). He was discharged with a referral for outpatient treatment (id. at 720).

         On March 28, 2007, he was admitted to First Hospital Panamericano with an admitting diagnosis of schizophrenia NOS (not otherwise specified). He spent 5 days in the hospital before he was discharged with a diagnosis of major depressive disorder (id. at 415, 416). The records from this hospitalization are largely illegible (id. at 416-19), with the exception of a physician's note, dated March 28, 2007, which describes Plaintiff as a 33 year old man with a longstanding history of psychiatric illness going back to age 15, presumably schizophrenia. The physician noted that Plaintiff had decided to stop taking his medication and was under significant stress after separating from, then assaulting, his wife. Plaintiff told the doctor that he heard voices telling him to kill or injure his wife, saw shadows at times, and was afraid he would kill someone (id. at 655).

         On or around August 26, 2008, Plaintiff was voluntarily hospitalized. The diagnosis was schizoaffective disorder and the reason for the commitment was problems with the criminal/legal system (id. at 619-22, 626). He reported that he was seeking treatment because he had been depressed and isolated for a month. He had hit his mother, wife, and daughter and wound up in court. He reported auditory hallucinations telling him to kill himself or to hurt other people (id. at 623, 626). He was not employed (id. at 631). He was stable two days later at the time of discharge and understood that he needed to take his psychiatric medications (id. at 639).

         Plaintiff was seen on February 23, May 18, August 8, and December 19, 2011, and on May 19, 2012 by Eduardo Rodriguez Falche, M.D., for follow up care. In February 2011, plaintiff reported some hallucinations and irritability. Dr. Falche judged his thought patterns to be logical, coherent, and relevant, and his affect dull. The doctor assigned a global assessment of functioning (“GAF”) score of 50 on the GAF scale of 1 to 100, [3] and the doctor increased Plaintiff's dosage of Risperdal (id. at 318). By May 2011, Plaintiff's mood was calm and he was stable, resulting in an increased GAF score of 60 (id. at 317).[4] In August 2011, Dr. Falche noted that Plaintiff was doing well with his “diagnosis at baseline.” He remained calm with a GAF score of 60. The report for December 2011 was essentially the same (id. at 315-16). In March 2012, Plaintiff had problems with his health and had not been able to obtain his medications for the last three months. He reported seeing shadows and some suspiciousness, and told Dr. Falche that he was moving to the United States to his mother's home next month. Dr. Falche assigned Plaintiff a GAF score of 55 (id. at 314-15). In July 2012, Christian Hernandez, M.D., noted that Plaintiff's though patterns were logical, coherent, and relevant, and that he was oriented. Plaintiff was alert and calm and his affect was adequate. Dr. Hernandez assigned Plaintiff a GAF score of 60 (id. at 314).

         2. Medical Records from Massachusetts

         On August 29, 2012, with Plaintiff having followed through on his plan to leave Puerto Rico and establish residency in Massachusetts, he began treatment at the Gandara Mental Health Center (“Gandara”) (id. at 380). His intake assessment reflects that Plaintiff reported that he had come to Gandara to continue his treatment for schizoaffective disorder (id. at 369). Plaintiff reported that he moved to Massachusetts to be with his mother and his two children. He was currently unemployed because of his disorder and relational problems. He reported that “he cannot be around people, he describes his symptoms as a fire bowl that can erupt at any moment, he hears voices an[d] can see shadows” (id.). He indicated that he did not want to work and did not want help finding work (id. at 371). He enjoyed watching TV and playing video games, and reported no limitations in activities of daily living (id. at 370). He was taking Risperdone, Benztropine, Fluoxetine, and Prazosin HCL with no reported side effects (id. at 372). His appearance was within normal limits; he was cooperative but nervous and anxious; his speech, mood, affect, intellectual functioning, insight, and judgment were within normal limits; he reported auditory and visual hallucinations; his thought content was persecutory and guarded; and his thought process included flight of ideas (id. at 374). Plaintiff's GAF score at intake was assessed at 59 (id. at 359).

         The plan for treatment at Gandara was for cognitive behavioral therapy twice monthly with licensed social worker Claudia Rexach to help Plaintiff understand and control his symptoms, coupled with a continuation of his medications so that he would be able to stabilize and reach a functional stage on a daily basis (id. at 378, 380, 381). Plaintiff also saw advanced practice registered nurse Peter Bourque at Gandara every other month beginning on October 16, 2012. Mr. Bourque diagnosed anxiety and schizoaffective disorder and prescribed psychiatric medication (id. at 362-68).

         Plaintiff chose to cease treatment at Gandara in June 2013, informing the staff at Gandara that he was going to seek treatment at another center (id. at 359). Plaintiff's discharge summary, which he signed, reflects that Plaintiff had been stable for the last 6 months and compliant with his treatment and its goals. He had been functioning well inside and outside his home. His anger had decreased and his psychotic symptoms were no longer active. His GAF score at discharge was reported as 65 (id. at 359-60).[5]

         According to records submitted to the SSA, Plaintiff was incarcerated at the Hampden County Sheriff's Department and Correctional Center (“Ludlow Correctional Center”) beginning on or around October 1, 2012 (id. at 321). During his admission screening, Plaintiff reported that he had auditory and visual hallucinations and schizophrenia and was on medication. He was oriented to time and place and was not combative. He reported that he did not have suicidal intentions, but had tried to kill himself three times in the past. Plaintiff did not appear anxious or depressed (id.) He reported that he was receiving outpatient mental health treatment at Gandara (id. at 325). Attendant Ivette Richardson, whose credentials are not apparent from the records, conducted a forensic survey of Plaintiff's mental status on October 2, 2012. The survey was generally positive. Plaintiff was reported to be oriented in all spheres, able to concentrate, with a logical thought process and a stable mood. He reported that he had tried to kill himself three times many years ago by overdosing on pills, but denied any present intent or plan to injure himself or anyone else. He was taking Risperdal, Cogentin, and Prozac, and reported that he had been on psychiatric medication since 1994. He reported that, if he stopped taking his medication, he would hear voices very clearly and constantly, but that the voices were at a minimum at that time because he was taking his medication (id. at 333-34, 337). Plaintiff told Ms. Richardson that he had not worked in over 4 years and that when he was working he had many problems with his co-workers because of the instability of his moods (id. at 339). Plaintiff was discharged from the Ludlow Correctional Center before any follow-up psychiatric care was provided (id. at 338).

         Plaintiff initiated weekly counseling at Valley Psychiatric Services, Inc. on August 12, 2013 with social worker and therapist Luz M. Rivera. At the initial assessment, he reported that he suffered from bipolar disorder, depression, hallucinations, and schizophrenia (id. at 580, 583). He identified his mother as his support relationship and indicated a good relationship with his family (id. at 583). He reported that he had been prescribed the following psychiatric medications by Mr. Bourque: Prazosin for insomnia; Benztropine for psychosis; Fluoxetine for depression; and Risperdone as an antipsychotic. There were no reported side effects (id. at 586). According to the notes, Plaintiff mentioned that he was not taking his medications and that it was sometimes difficult to control himself (id. at 598). Nonetheless, Ms. Rivera assessed his appearance, speech, affect, perceptions, thought content and process, intellectual functioning, orientation, memory, insight, and judgment as within normal limits. She indicated that he appeared rigid, tense, and anxious (id. at 588). Notwithstanding prior denials of physical or sexual abuse (see, e.g., Id . at 347, 370), on this occasion Plaintiff reported molestation by a cousin when he was 10 years old (id. at 597).

         Plaintiff was scheduled for an October 25, 2013 psychiatric evaluation at Valley Psychiatric Services, Inc. (id. at 580). Handwritten notes of that consultation are difficult to read, but it appears that Plaintiff reported a longitudinal history of mental illness that was generally consistent with his prior reports (id. at 606). The notes from October 25, 2013 are not signed, but medications were prescribed for Plaintiff on that date by Candace L. O'Brien (id. at 608).

         C. Opinion Evidence

         1. EAEDC Medical Report[6]

         On August 15, 2012, shortly after Plaintiff arrived in the United States, physician Martin-Hernandez examined Plaintiff in connection with an application for EAEDC benefits. The resulting report provides that Plaintiff complained of schizophrenia, anxiety, and depression (id. at 356). The doctor concluded that Plaintiff had mental health impairments that affected his ability to work and were expected to last for more than a year (id. at 358).

         2. UMMC Disability Evaluation Services

         On October 18, 2012, Plaintiff was evaluated at UMMC Disability Evaluation Services by psychologist Sheree Estes, Ph.D. (id. at 347). Plaintiff reported mental health, medical, family, and educational and vocational histories that were generally consistent with his prior recitations of his history. He confirmed to Dr. Estes that he was treating at Gandara with someone named Peter and engaged in counseling every two weeks with someone named Claudia (id.). Dr. Estes diagnosed major depressive disorder with a question of psychotic tendencies and anxiety disorder with a question of panic tendencies with a psychotic disorder to be ruled out (id. at 349-50). Administration of a mini-mental status examination produced a score of 21 out of 30, which would be considered in the “mildly impaired range” (id. at 349). Dr. Estes reported that Plaintiff's problems with the mini-mental status examination were that he did not know the day, date, or month, had difficulty with his address, and could not spell the word “mundo” backwards (id.).

         3. Non-examining Consultative Disability Determinations

         On November 23, 2012, in connection with Plaintiff's SSI application, psychologist Brian O'Sullivan, Ph.D., concluded, based on a record review, that Plaintiff was not disabled. Dr. O'Brian noted a history of depression, schizophrenia, bipolar disorder, anxiety, and suicidal and homicidal behaviors (id. at 57). He concluded that Plaintiff had a severe medically determinable mental health impairment that did not precisely satisfy the diagnostic criteria for schizophrenia, paranoid, with other disorders (id. at 58). Concluding that Plaintiff's report of his daily living activities and the medical records indicated better functioning than the “worst psych allegations, ” Dr. Sullivan found that Plaintiff had moderate restrictions in his activities of daily living; moderate activities in maintaining social functioning; moderate difficulties in maintaining concentration, persistence or pace; and no repeated episodes of decompensation of extended duration (id.).

         On reconsideration, psychologist J. Litchman, Ph.D., also indicated that a medically determinable impairment was present that did not precisely satisfy the diagnostic criteria for schizophrenia, paranoid with other psychotic features (id. at 70). He concluded, based on his review of the records, that there had not been any real confirmed psychotic episodes and that Plaintiff was in control especially when he was compliant with taking his medications (id.). As did Dr. O'Sullivan, Dr. Litchman found that the reports of Plaintiff's activities of daily living and his medical records indicated inconsistencies with Plaintiff's claims of mental impairment. Dr. Litchman concluded that Plaintiff had mild restrictions in his activities of daily living; moderate ...


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