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Laboy v. Colvin

United States District Court, D. Massachusetts

August 24, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.



         I. Introduction

         On May 24, 2016, plaintiff Nilsa Enid Laboy (“Plaintiff”) filed a complaint pursuant to 42 U.S.C. § 405(g) against the Acting Commissioner of the Social Security Administration (“Commissioner”), appealing the denial of her claims for Supplemental Security Income (“SSI”) and Social Security Disability Insurance (“SSDI”). Plaintiff asserts that the Commissioner's decision denying her such benefits - memorialized in a January 15, 2015 decision by an administrative law judge (“ALJ”) - is in error. Specifically, Plaintiff alleges that the ALJ erred by: (1) not assessing her history of left facial paralysis and migraine or tension headaches secondary to myofascial pain and her fibromyalgia syndrome as severe impairments and taking into account limitations from these impairments when he assessed Plaintiff's residual functional capacity (“RFC”), (2) not adopting the opinion of a treating mental health care provider on the ground that it was solicited to support Plaintiff's benefits application, and (3) failing to give the opinion probative weight in assessing Plaintiff's RFC. Plaintiff has moved for judgment on the pleadings requesting that the matter be remanded to the Social Security Administration for further proceedings (Dkt. No. 17). The Commissioner has moved for an order affirming her decision (Dkt. No. 23). The parties have consented to this court's jurisdiction (Dkt. No. 16). See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the following reasons, the court orders a remand to the Commissioner limited to the issue of the ALJ's failure to treat Plaintiff's physical impairments (migraine or tension headaches, myofascial pain, and fibromyalgia) as severe or to address limitations from those physical impairments in the RFC.

         II. Procedural Background

         Plaintiff applied for SSI and SSDI with filing dates of October 24 and 29, 2008, respectively, alleging a June 11, 2007 onset of disability due to stress, mood swings, facial paralysis, and generalized pain (Administrative Record (“A.R.”) at 338-51, 345, 383, 386). Plaintiff's applications were denied initially and on reconsideration (id. at 174-177, 179-84). Plaintiff requested a hearing before an ALJ, and two were held, the first on June 10, 2011, at which time Plaintiff claimed disability due to depression, migraines, fibromyalgia, auditory and visual hallucinations, facial paralysis, fibromyalgia, anxiety, and memory problems (id. at 84, 86-87, 89, 93-94, 96), and the second on March 23, 2012, to clarify Plaintiff's earnings records (id. at 109). Following the hearings, on July 24, 2012, the ALJ issued a partially favorable decision finding that Plaintiff became disabled as of April 1, 2011 (id. at 23). Plaintiff requested that the Appeals Council review the decision (id. at 178). The Appeals Council granted review, and, on November 25, 2013, vacated the ALJ's decision, and remanded the case for further proceedings, including a further hearing (id. at 170-72). The Appeals Council directed the ALJ to: (1) as necessary, obtain additional evidence concerning Plaintiff's impairments; (2) give further consideration to whether Plaintiff had engaged in substantial gainful activity since the alleged onset of her disability; and (3) as necessary, give further consideration to Plaintiff's RFC with specific references to evidence of record (id. at 171).

         The ALJ conducted a further hearing on October 3, 2014, at which he heard evidence about Plaintiff's employment in 2012 to 2013 and additional evidence related to her impairments (id. at 118-39). On January 15, 2015, the ALJ issued his decision, finding that Plaintiff had not been under a disability from July 11, 2007 through the date of the decision (id. at 19-60). The Appeals Council denied review (id. at 1-7), and the ALJ's January 15, 2015 decision became the final decision of the Commissioner. This suit followed.

         III. Legal Standards

         A. Standard for Entitlement to SSI and SSDI

         In order to qualify for SSI and SSDI, a claimant must demonstrate that she is disabled within the meaning of the Social Security Act.[1] A claimant is disabled for purposes of SSI and SSDI if she “is unable to engage in 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. § 1382c(a)(3)(A); 42 U.S.C. § 423(d)(1)(A). A claimant is unable to engage in any substantial gainful activity when she “is not only unable to do h[er] previous work, but cannot, considering h[er] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for h[er], or whether [s]he would be hired if [s]he applied for work.” 42 U.S.C. § 1382c(a)(3)(B); 42 U.S.C. § 423(d)(2)(A).

         The Commissioner evaluates a claimant's impairment under a five-step sequential evaluation process set forth in the regulations promulgated under each statute. See 20 C.F.R. § 416.920; 20 C.F.R. § 404.1520. The hearing officer must determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant suffers from a severe impairment; (3) whether the impairment meets or equals a listed impairment contained in Appendix 1 to the regulations; (4) whether the impairment prevents the claimant from performing previous relevant work; and (5) whether the impairment prevents the claimant from doing any work considering the claimant's age, education, and work experience. See id. See also Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982) (describing the five-step process). If the hearing officer determines at any step of the evaluation that the claimant is or is not disabled, the analysis does not continue to the next step. 20 C.F.R. § 416.920; 20 C.F.R. § 404.1520. Before proceeding to steps four and five, the Commissioner must make an assessment of the claimant's RFC, which the Commissioner uses at step four to determine whether the claimant can do past relevant work and at step five to determine if the claimant can adjust to other work. See id. “RFC is what an individual can still do despite his or her limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities.” Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2 (July 2, 1996).

         The claimant has the burden of proof through step four of the analysis, Goodermote, 690 F.2d at 7, including the burden to demonstrate RFC. Flaherty v. Astrue, 2013 WL 4784419, at *9 (D. Mass. Sept. 5, 2013) (citing Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). At step five, the Commissioner has the burden of showing the existence of other jobs in the national economy that the claimant can nonetheless perform. Goodermote, 690 F.2d at 7.

         B. Standard of Review

         The District Court may enter a judgment affirming, modifying, or reversing the final decision of the Commissioner, with or without remanding for rehearing. See 42 U.S.C. § 1383(c)(3); 42 U.S.C. § 405(g). Judicial review “is limited to determining whether the ALJ used the proper legal standards and found facts upon the proper quantum of evidence.” Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The court reviews questions of law de novo, but must defer to the ALJ's findings of fact if they are supported by substantial evidence. Id. (citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.1999)). Substantial evidence exists “‘if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the] conclusion.'” Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). In applying the substantial evidence standard, the court must be mindful that it is the province of the ALJ, and not the courts, to determine issues of credibility, resolve conflicts in the evidence, and draw conclusions from such evidence. Id. So long as the substantial evidence standard is met, the ALJ's factual findings are conclusive even if the record “arguably could support a different conclusion.” Id. at 770. That said, the Commissioner may not ignore evidence, misapply the law, or judge matters entrusted to experts. Nguyen, 172 F.3d at 35.

         IV. The Record

         A. Evidence Concerning Plaintiff's Mental Health Impairments

         1. Treatment and Related Records

         Plaintiff was admitted to Baystate Medical Center on July 18, 2007 after she stabbed herself in the abdomen following an argument (A.R. at 531-32). A July 19, 2007 psychiatric consultation did not result in a psychiatric admission (id. at 532). Instead, outpatient mental health care was arranged (id.). A July 20, 2007 intake assessment completed by Carol Proctor of the Mt. Tom Mental Health Center reflects that Plaintiff was mildly distraught, somewhat guarded, and showed no evidence of thought disorder. She reported that she superficially stabbed herself in the abdomen after a dispute with her boyfriend. She graduated from Commerce High School and had worked for the last four years in property management (id. at 504-05). She was deemed to be of average or better intelligence. Speech and presentation were appropriate given her recent crisis situation (id. at 505). She told Ms. Proctor that she wanted her children back and that they were her first priority (id. at 504). She was diagnosed with an adjustment disorder with anxiety and a depressed mood. Ms. Proctor noted that Plaintiff was involved in a relationship with serious conflict (id. at 507). Plaintiff returned to Baystate Medical Center on February 9, 2008, for an episode of depression, reporting that she had been crying all week (id. at 511). She was not admitted for treatment, because she asked to go home, indicating that she could keep herself safe (id.).

         Plaintiff began treating with the Center for Psychology and Family Services on July 30, 2008 (id. at 751). A Diagnostic Evaluation completed on August 12, 2008 indicated that plaintiff had graduated from Commerce High School. She was seeking treatment because she was always stressed and crying for no reason. She had five children, including twins recently born prematurely who had lots of medical problems. The intake worker noted that Plaintiff was neat, her speech was clear and coherent, she was cooperative, alert, oriented to person, place, and time, with a good memory, clear thought content, and logical and organized thought processes. She had no delusions or hallucinations and her judgment was good (id. at 752-53). Strengths for treatment included Plaintiff's intelligence, concern for her children, and support from her mother (id. at 754). She displayed apparent signs of depression and anxiety: she appeared sad, and her affect was blunted (id.).

         On November 6, 2008, Plaintiff's mother completed a function report in connection with a benefits application based on Plaintiff's answers to the questions on the form. According to Plaintiff, she stayed in bed all day and cried. She did not sleep at night, had a hard time thinking and just wanted to die. In terms of personal care, she sometimes forgot to put on her underwear, did not care for her hair, and made a mess when she fed herself. She did not go outside because she did not like people looking at her. She saw ghosts at night and talked with them and heard things. She claimed to believe she was President Bush's daughter, and stated that she went to check the mailbox while undressed. She indicated that her conditions affected her ability to lift, squat, bend, stand, walk, sit, kneel, talk, hear, climb stairs, see, remember, complete tasks, concentrate, understand, follow instructions, and get along with others (id. at 677-84).

         In October 2008, a staff member at the office of Plaintiff's primary care provider telephoned Wing Hospital in Palmer indicating that Plaintiff was suicidal (id. at 573). The hospital called the office back indicating that Plaintiff was not living at the address she had given to her primary care provider and had changed telephone numbers (id.). In a November 12, 2008 quarterly report prepared by the Center for Psychology and Family Services, it was noted that Plaintiff was crying less and eating better, but still having trouble sleeping (id. at 749). On February 4, 2009, Plaintiff was noted to be less depressed with fewer mood swings. She was taking her medication regularly, and cooperating with a DSS safety plan to keep her children from witnessing domestic violence (id. at 748). In May 2009, Plaintiff was stable, doing well, and DSS was closing its case. Plaintiff was less depressed and moody. She was taking her medications regularly (id. at 747). Plaintiff stopped treating at the Center for Psychology and Family Services after DSS closed its case (id. at 744).

         Plaintiff's next mental health providers were associated with ServiceNet, where she began mental health care treatment in February or March 2011. ServiceNet records show initial diagnoses of major depressive disorder, recurrent and severe, and post-traumatic stress disorder (id. at 962). On March 29, 2011, Ali Moshiri, M.D., conducted a psychiatric evaluation. Plaintiff reported longstanding problems with depression, anxiety, anxiety attacks, and auditory and visual hallucinations (id. at 871-72). She had been having trouble sleeping. The voices she heard were always present and disturbing. Sometimes in public, she would scream at the voices to go away (id. at 872). Dr. Moshiri noted that Plaintiff was unable to give him a reliable medical history. He observed that her speech was normal, but somewhat childlike. She had moderate eye contact and her affect was appropriate and flat. He saw no acute signs of psychosis, but noted that Plaintiff admitted to auditory and visual hallucinations. He concluded that Plaintiff had been very disabled and unable to function at her age level. She was not taking medication because she had not had access to providers. He prescribed Paxil and Risperdal (id. at 872). In a progress note from May 2011, Dr. Moshiri noted that Plaintiff continued to have anxiety attacks and to see things, and changed Plaintiff's medications (id. at 869-70). In June 2011, Dr. Moshiri again changed her medication, this time in response to a recommendation from her neurologist. He noted that she appeared stable with no acute signs (id. at 974).

         Through ServiceNet, Plaintiff was also treated by psychotherapy, initially with Licensed Mental Health Counselor Robin Slavin (id. at 862). In May 2011, Ms. Slavin noted that Plaintiff's anxiety kept her from contributing to child care and that she was socially isolated. She had strong support from her mother and was consistent in attending counseling (id. at 864). She reported auditory and visual hallucinations telling her to hurt herself and others, and self-injurious behaviors (id. at 866-67).

         On June 4, 2011, Ms. Slavin completed a Mental Impairment Questionnaire (“MIQ”) concerning Plaintiff. Dr. Moshiri co-signed the MIQ (id. at 897-900). In the MIQ, Ms. Slavin opined that Plaintiff was unable to work due to auditory and visual hallucinations (id. at 897). She was prescribed Celaxa, Klonopin, and Ambien (id.). On a checklist of signs and symptoms, Ms. Slavin checked that Plaintiff had anhedonia, decreased energy, thoughts of suicide, a flat affect, feelings of guilt or worthlessness, impairment in impulse control, poverty of content of speech, generalized persistent anxiety, mood disturbances, difficulty thinking or concentrating, recurrent recollections of a traumatic experience, psychological dependence, persistent mood disturbance, persistent nonorganic disturbance of vision, speech, or hearing, apprehensive expectation, paranoid thinking, seclusiveness, emotional withdrawal, psychological or behavior abnormalities, persistent irrational fear, intense and unstable interpersonal relationships, disorientation to time and place, perceptual disturbances, hallucinations or delusions, deeply ingrained maladaptive patterns of behavior, illogical thinking, easy distractability, memory impairment, sleep disturbance, oddities of thought, speech, perceptions, or behavior, loss of intellectual ability of 15 IQ points or more, and recurrent severe panic attacks (id. at 898). According to Ms. Slavin, Plaintiff suffered from reduced intellectual functioning attributable to a facial stabbing (treatment of which is discussed infra).

         In assessing Plaintiff's functional limitations attributable to her mental impairments, Ms. Slavin stated that Plaintiff had extreme restrictions in activities of daily living; extreme difficulties in maintaining social functioning; extreme difficulties in maintaining concentration, persistence and pace; and had endured one or two episodes of decompensation during the last year each lasting two weeks or more. She indicated that Plaintiff had a history of one or more years of being unable to function outside of a highly supportive living arrangement, and that even a minimal increase in mental demands or changes in the environment would cause Plaintiff to decompensate. Finally, she indicated that Plaintiff was not oriented to time or date, had severe forgetfulness and disorganization and a lack of living skills, and engaged in violent outbursts (id. at 899-900).

         In a September 2011 progress note, Dr. Moshiri noted that Plaintiff had previously been treated for attention deficit/hyperactivity disorder, and he added Adderall to her prescribed medications. He reported that Plaintiff appeared stable with no acute signs of depression or anxiety and was going back to school (id. at 965). In subsequent progress notes from October 2011 through April 2012, Dr. Moshiri reported that Plaintiff was stable with no acute signs (id. at 953, 962, 1054). In June 2012, Dr. Moshiri reported that Plaintiff was doing extremely well, with the improvement being observed by her therapist. She appeared markedly less depressed and anxious (id. at 1044). In August and October 2012 and January 2013, Dr. Moshiri noted that she was stable and doing well, very well or better (id. at 1040, 1031, 1029). Dr. Moshiri's January 2013 progress note indicated that Plaintiff was alert and oriented, with normal speech, good eye contact, appropriate and varied affect, and intact judgment (id. at 1030). In April 2013, Dr. Moshiri indicated that Plaintiff was stable at baseline with no complaints. He noted, however, that her therapist had observed a marked difficulty with her memory and concentration. Dr. Moshiri supported psychiatric testing (id. at 1025-26). In a July 8, 2013 progress note, Dr. Moshiri recorded that Plaintiff had generally been more stable with continued benefit from her medication. His impression was that she appeared alert, oriented, and well kempt. Her speech was normal with good eye contact, her affect was appropriate and constricted at baseline. Her cognition and judgment were intact (id. at 1014-15). Dr. Mishiri's progress notes from October 2013 through July 2014 were very similar to his July 2013 notes (id. at 989, 995, 1004, 1012-13), although the July 2014 note mentioned Plaintiff's on-going migraine headaches (id. at 989).

         Plaintiff continued counseling sessions with Ms. Slavin through May 2012, at which time Plaintiff reported that her auditory and visual hallucinations had ceased. Ms. Slavin noted that Plaintiff's fear and anxiety prevented her from participating in classes or other venues to learn skills for employment or increased participation in her children's lives and that she remained socially isolated (id. at 1046, 1050). In a Psycho Social Wellbeing Scale, Ms. Slavin rated Plaintiff's cognitive functioning, emotional functioning, coping skills, immediate and extended social networks, recreational activities, independent living/self-care and role functioning as marginal or impaired, meaning she had serious problems or substantial difficulty in these areas. She rated Plaintiff's impulse control as good (id. at 1052-53).

         In or around October 2012, Plaintiff began counseling with Licensed Mental Health Counselor Krystyne Bargiel. Ms. Bargiel observed that Plaintiff appeared to have a difficult time with memory, orientation, and organization (id. at 1035, 1037-38). Ms. Bargiel's assessment of Plaintiff's psycho-social well-being did not differ substantially from Ms. Slavin's, although Ms. Bargiel observed some moderate improvement by January 2014 (id. at 1001-02, 1005-06, 1016-19, 1027-28). In April of 2013, Ms. Bargiel observed that Plaintiff continued to have cognitive impairments and that her memory was so severely impaired that a recent history taken from Plaintiff was unreliable. Plaintiff was referred for psychological testing, the result of which was that her measured IQ was determined to be 47, resulting in diagnoses of mild mental retardation and low intellectual functioning (id. at 1003, 1022). By April 2014, Plaintiff's counselor was Licensed Social Worker Michele Skovera, who rated Plaintiff as having impaired cognitive functioning, emotional functioning, and coping skills, an impaired range of recreational activities, an impaired extended social network, and an impaired ability to live independently, and work or function in another role. She rated Plaintiff as having marginal impulse control, and a marginal immediate social network (id. at 992-93). She noted some improvement by July 2014 (id. at 990-91).

         2. Consultative Examinations and Disability Investigations Unit

         a. Teena Guenther, Ph.D.

         On October 26, 2007, Teena Guenther, Ph.D. prepared a consultative examination report for the Massachusetts Rehabilitation Commission Disability Determination Services (“DDS”). Dr. Guenther diagnosed Plaintiff with Major Depressive Disorder, recurrent, Moderate to Severe (id. at 503). Dr. Guenther observed that Plaintiff presented as pleasant but somewhat guarded and passive. She estimated Plaintiff's intellectual functioning as near the average range and her insight and judgment as fair. Plaintiff appeared to have a reduced ability to tolerate stress and told Dr. Guenther about symptoms that might make it difficult for her to sustain concentration for work tasks and to relate to coworkers or supervisors. Dr. Guenther concluded that the results of her evaluation were consistent with Plaintiff's allegations of disability (id. at 501-03).

         b. Leon Hutt, Ph.D.

         On December 23, 2008, Leon Hutt, Ph.D. interviewed Plaintiff and prepared a second consultative examination report for DDS. Plaintiff reported to Dr. Hutt that she had been educated in special education classes and could hardly read or write and that her history of past employment was virtually non-existent. She said that she essentially did nothing. Her mother took care of her children, shopped, cooked, and cleaned. She did not want to do anything but close herself in her room all day, was frightened to go outside, and claimed to suffer from auditory and visual hallucinations (id. at 654-55). Dr. Hutt observed that Plaintiff had difficulty speaking, was fully alert but weakly oriented to time and place (she could not give the date or the address of Dr. Hutt's office), and was coherent but vague. He concluded that her attentional capacity was well below average ...

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