United States District Court, D. Massachusetts
SERGIO P. CORREIA, Plaintiff,
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
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.
applied for SSI and SSDI on March 12, 2013, alleging a
November 27, 2011 onset of disability (Administrative Record
(“A.R.”) at 340-350). 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.
Standard for Entitlement to Social Security Disability
order to qualify for SSI and SSDI, a claimant must
demonstrate that he is disabled within the meaning of the
Social Security Act. 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).
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.
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).
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.
Standard of Review
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.
Mental Health Records Submitted Prior to December 8,
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
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).
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).
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).
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).
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).
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.
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).
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 ...