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Correia v. Berryhill

United States District Court, D. Massachusetts

September 29, 2017

SERGIO P. CORREIA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM AND ORDER REGARDING PLAINTIFF'S FIRST MOTION FOR ORDER REVERSING THE COMMISSISIONER'S DECISION, AND THE DEFENDANT'S MOTION TO AFFIRM THE COMMISSIONER'S DECISION (DKT. NOS. 14, 21)

          KATHERINE A. ROBERTSON, United States Magistrate Judge

         I. Introduction

         On September 9, 2016, plaintiff Sergio P. Correira (“Plaintiff”) filed a complaint pursuant to 42 U.S.C. § 405(g) against the Acting Commissioner (“Commissioner”) of the Social Security Administration (“SSA”), appealing the denial of his claims for Supplemental Security Income (“SSI”) and Social Security Disability Insurance (“SSDI”). Plaintiff asserts that the Commissioner's decision denying him such benefits - memorialized in a February 22, 2016 decision by an administrative law judge (“ALJ”) - is in error. Specifically, Plaintiff alleges that: (1) the Appeals Council's remand of the case to the ALJ following an initial fully favorable decision was arbitrary and capricious, and the ALJ was improperly influenced by the fact of remand to issue an unfavorable decision; (2) the ALJ's decision was not supported by substantial evidence; and (3) the ALJ failed to accord appropriate weight to an unidentified mental health care provider's treatment records. By his motion, Plaintiff seeks a judgment on the pleadings that the Commissioner's decision be reversed or remanded (Dkt. No. 14). The Commissioner has moved for an order affirming her decision (Dkt. No. 21). The parties have consented to this court's jurisdiction (Dkt. No. 13). See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the following reasons, the court DENIES Plaintiff's motion and GRANTS the Commissioner's motion.

         II. Procedural Background

         Plaintiff applied for SSI and SSDI on March 12, 2013, alleging a November 27, 2011 onset of disability (Administrative Record (“A.R.”) at 340-350).[1] Plaintiff's applications were denied initially and on reconsideration (id. at 198-201, 208-213). Plaintiff requested a hearing before an ALJ, and one was held on November 13, 2014, at which time Plaintiff claimed disability due to an amputation of his left arm above the elbow, depression, and anxiety (id. at 80, 86, 94, 100, 103). Following the hearing, the ALJ issued a fully favorable decision on December 8, 2014 (id. at 177-190). By a notice dated February 2, 2015, the Appeals Council notified Plaintiff that it was reviewing the ALJ's decision (id. at 301-06). On June 18, 2015, the Appeals Council vacated the hearing decision and remanded the case to the ALJ with instructions (id. at 193-97). In accordance with those instructions, the ALJ held a second hearing on December 8, 2015 (id. at 46-79). On February 17, 2016, the ALJ issued a decision denying Plaintiff's claims (id. at 23-45). The Appeals Council denied review, and the ALJ's February 17, 2016 unfavorable decision became the final decision of the Commissioner (id. at 1-6). This suit followed.

         III. Legal Standards

         A. Standard for Entitlement to Social Security Disability Insurance

         In order to qualify for SSI and SSDI, a claimant must demonstrate that he is disabled within the meaning of the Social Security Act.[2] A claimant is disabled for purposes of SSI and SSDI if he “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 he “is not only unable to do his previous work, but cannot, considering his 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 he lives, or whether a specific job vacancy exists for him, or whether he would be hired if 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 “residual functional capacity” (“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. Discussion

         A. Relevant Background

         1. Mental Health Records Submitted Prior to December 8, 2014

         The evidence related to Plaintiff's mental health from November 27, 2011, the alleged onset date, to December 8, 2014, the date of the favorable decision, included treatment records from Advocates Community Counseling (“ACC”), reports of two in-person consultative examinations, and a report from Horace Lukens, Ph.D., a non-examining, non-testifying mental health care professional for the state Disability Determination Services (“DDS”).

         a. ACC Records

         Plaintiff initiated counseling at ACC with therapist Gail Wall in or around September 2012 (A.R. at 594, 618). The records of counseling, which continue through the end of January 2013 on a fairly regular basis, reflect the topics which Plaintiff and Ms. Wall discussed. These records include a diagnostic code for dysthymic disorder, or persistent depressive disorder, but do not contain an assessment of the severity of Plaintiff's diagnosed mental health impairment, nor do they discuss any functional limitations attributable to the diagnosis (id. at 600-618). The records indicate that Plaintiff began taking Celexa in or around December 2012 (id. at 607), and ceased taking it some three weeks later because of side effects (id. at 600).

         Julie Marhefka, an advanced practice registered nurse, evaluated Plaintiff on October 12, 2012 for purposes of prescribing medication (id. at 594). She saw Plaintiff for evaluation or treatment four times between October 12 and December 31, 2012 (id. at 591-96). Ms. Marhefka assessed Plaintiff's appearance, speech, alertness, attention, and memory as normal. He was not delusional. The records show that his mood was depressed, and he reported that his appetite, energy, and interests had decreased. Ms. Marhefka prescribed Celexa in December 2012 (id. at 592), and assigned Plaintiff a score of 50 on the Global Assessment of Functioning Scale (“GAF”) on each of the four occasions on which she treated him (id. at 591-93, 596).[3]

         In late June and early July 2013, Plaintiff saw Barbara Sachs, M.A., at ACC (id. at 569, 599). It appears that initially Plaintiff's treatment with Ms. Sachs was for group substance abuse counseling required as a term of Plaintiff's probation (id. at 588, 660). On June 27, 2013, Ms. Sachs completed an adult comprehensive assessment of Plaintiff, in which she indicated that Plaintiff's appearance, eye contact, speech, emotional state/mood, facial expression, perception, thought content and process, orientation, memory, and judgment were within normal limits. She described his behavior as relaxed and cooperative (id. at 575, 580). On July 11, 2013, Ms. Sachs recorded Plaintiff's self-assessment. He indicated that his strengths were that he was optimistic and a hard worker. He was able to take care of himself and his apartment (id. at 582).

         In December 2013, Plaintiff began treating on an intermittent basis with Jaime Eckert, MSN (Master of Science in Nursing), RN/PC, who initially diagnosed Plaintiff with recurring depression of moderate severity, prescribed Zoloft, and assessed a GAF score of 55 (id. at 654). In February 2014, Ms. Eckert's diagnosis was recurrent depression of mild to moderate severity; she assessed a GAF score of 58 and observed that Plaintiff was responding well to a trial of Zoloft (id. at 657).

         b. Opinion Evidence

         Clinical psychologist Peter Jaffe, Ph.D., conducted a clinical diagnostic interview with Plaintiff on August 19, 2013. Plaintiff was referred to Dr. Jaffe by the University of Massachusetts Disability Evaluation Services as part of Plaintiff's application for Massachusetts benefits. Dr. Jaffe diagnosed posttraumatic stress disorder, dysthymic disorder, and panic disorder without agoraphobia (id. at643- 646). Mr. Jaffe opined that, primarily due to Plaintiff's physical condition, there were restrictions on his daily living activities and he was not yet able to be competitively employed. Dr. Jaffe assessed a GAF score of 51 (id. at 646).

         Neuropsychologist Kaaren Bekken, Ph.D., conducted a consultative examination with testing of Plaintiff on September 17, 2013. Dr. Bekken observed that Plaintiff was well-groomed, friendly, and fully cooperative. His thought processes appeared to be fully intact and his behavior was normal. Ms. Bekken diagnosed depression (reported to be severe based on Plaintiff's score on a self-report depression checklist) with PTSD-like symptoms. Dr. Bekken estimated Plaintiff's GAF score at 50. She attributed the GAF score to the loss of his arm, depression, and recent substance abuse history (id. at 647-49).

         A mental RFC worksheet completed on September 14, 2013 by Tom Pelletier, Sc.D., contained findings that Plaintiff was moderately limited in his ability to understand, remember, and carry out detailed instructions; maintain attention and concentration to sustain employment; work at a consistent pace; and interact appropriately with the general public. Mr. Pelletier otherwise indicated that Plaintiff was slightly limited, or was not limited, by the effects of his depression and possible PTSD (id. at 640).

         Horace Lukens, Ph.D., the non-examining DDS physician, supported a finding of non-disabled based on his review of the records and Dr. Bekken's consultative examination. Dr. Lukens' assessment of Plaintiff's mental RFC was that Plaintiff did not have understanding and memory limitations. He had limitations in sustained concentration and persistence, and would likely have moderate difficulty in carrying out instructions and sustaining attention, concentration, and pace due to physical limitations and the effect of depression (id. at 161). Dr. Lukens also found that Plaintiff would have social interaction limitations. He concluded that Plaintiff was not significantly limited in his ability to interact appropriately with the ...


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