United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION
FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION TO
AFFIRM THE DECISION OF THE COMMISSIONER (DKT. NOS. 12 &
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE.
the court is an action for judicial review of a final
decision by the Acting Commissioner of the Social Security
Administration ("Commissioner") regarding an
individual's entitlement to Supplemental Security Income
("SSI") pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3). Plaintiff Karl Victor Watkins
("Plaintiff") asserts that the Commissioner's
decision denying him such benefits -- memorialized in a March
3, 2015 decision of an administrative law judge
("ALJ") -- contains legal error and is not
supported by substantial evidence. Specifically, Plaintiff
alleges that the ALJ erred by failing to: (1) adopt the 2012
decision of another ALJ who found Plaintiff disabled; (2)
fully adopt the opinions of the state agency examiners and a
consultant when crafting Plaintiff's RFC; and (3) afford
a treatment provider's opinion controlling weight.
Plaintiff has moved for judgment on the pleadings (Dkt. No.
12), while the Commissioner has moved to affirm (Dkt. No.
parties have consented to this court's jurisdiction.
See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For
the following reasons, the court will DENY the
Commissioner's motion to affirm, and ALLOW
Plaintiff's motion for judgment on the pleadings to the
extent it seeks a remand on a single issue.
first applied for SSI on July 16, 2010 alleging an onset of
disability on May 2, 2008 (Administrative Record
"A.R." at 87). On February 24, 2012, after a
hearing, ALJ Judith M. Stolfo (hereinafter "first
ALJ") found Plaintiff to be disabled (id. at
21, 79-87). However, Plaintiff's SSI benefits were
suspended because he did not meet the financial eligibility
standard for the SSI program and they were ultimately
terminated (A.R. at 21-22 & nn.3 & 4; Dkt. No. 18-1
¶ 4(f)). See 42 U.S.C. § 1382(a).
submitted a second application for SSI on August 13, 2013,
when he was 49 years old, again alleging an onset of
disability on May 2, 2008 (id. at 19, 26). In his
second SSI application, Plaintiff alleged that he was
disabled due to depression, anxiety, and paranoia
(id. at 88). The application was denied initially on
January 16, 2014 and upon reconsideration on June 4, 2014
(id. at 19). Following a hearing before a different
ALJ (hereinafter "second ALJ" or "ALJ")
on February 17, 2015, the second ALJ issued his decision on
March 3, 2015 finding Plaintiff was not disabled since the
application was filed on August 13, 2013 (id. at
19). On April 28, 2016, the Appeals Council denied review of
the ALJ's decision (id. at 1), and this appeal
support of the disabling conditions listed in Plaintiff's
application for SSI benefits, he presented the second ALJ
with medical evidence spanning the period from 2010 through
was treated by Valley Psychiatric Service, Inc.
("VPS") beginning in March 2010 (id. at
83, 366). On April 17, 2013, Plaintiff's treatment
provider Glenroy Bristol completed a "Brief Psychiatric
Rating Scale for Adults" (id. at 350).
Plaintiff's anxiety was "moderately severe, "
his depression was "moderate, " and his conceptual
disorganization was "very mild" (id.).
Plaintiff displayed no indication that he suffered from
hallucinations, unusual thought content, bizarre behavior,
self-neglect, disorientation, and distractibility
therapist, Glenroy Bristol, completed Plaintiff's mental
status exam at VPS on July 1, 2013 (id. at 290).
Plaintiff was oriented x 3 (id.). Although Plaintiff
reported experiencing auditory hallucinations "'once
in a while, '" they were not "command
hallucinations" and he did not understand what he heard
(id.). His behavior, speech, mood/affect, and
thought content were within normal limits (id.). His
mood was stable, his thought processes were logical and
rational, he was well-rested, his appetite was good, and he
had no current SI/HI (id.). Mr. Bristol noted that
Plaintiff was "pleasant and in good spirits"
(id.). According to Plaintiff, his medications --
Wellbutrin, Risperdal, Cogentin, Trazodone, and Hydroxyzine
-- were effective, but because Trazodone was upsetting his
stomach, his dosage was decreased (id.).
a VPS session on July 24, 2013, Plaintiff's "mood
was euthymic with bright affect, he denied [SI/HI] intent or
plan, [he] did not express or exhibit signs of psychosis,
[and his] thoughts were clear, logical, organized, and
reality base[d]" (id. at 287).
terminated service with VPS on August 14, 2013 because he
failed to comply with VPS's attendance policy
(id. at 287, 288). The discharge summary noted that
Plaintiff "was medication compliant throughout treatment
and was clinically stable when last seen"
(id.). He was diagnosed with schizoaffective
disorder and polysubstance dependence (id. at 288).
Further, post-traumatic stress disorder ("PTSD"),
intermittent explosive disorder, and antisocial personality
disorder were to be ruled out (id. at 288).
returned to VPS on November 4, 2013 when he reported
flashbacks, auditory and visual hallucinations, and paranoia
in social settings (id. at 316, 325). He also
complained of "severe [recent] memory problems"
(id. at 316). According to the intake assessment
that Mr. Bristol completed, Plaintiff was not taking
medication (id. at 319). His mental status
examination showed that he was oriented x 3 and his
appearance, eye contact, speech, perception, and orientation
were within normal limits (id. at 321, 325). He did
not report delusions or hallucinations during the session,
but was depressed, restless, and anxious, and experienced
racing thoughts, impaired concentration, and "some"
(as opposed to "severe") impairment of judgment
(id. at 321, 325). He also reported difficulty
falling or staying asleep (id. at 323, 325). The
intake record also indicated that Plaintiff last drank
alcohol about one month before the assessment and stopped
smoking crack cocaine in 2010 (id. at 329). Mr.
Bristol diagnosed Plaintiff as having schizoaffective
disorder and PTSD and assigned him a Global Assessment of
Functioning ("GAF") score of 56 (id. at
Benedict of the Center for Human Development
("CHD") conducted an Outpatient Adult Comprehensive
Assessment of Plaintiff on February 4, 2014 (id. at
298). Plaintiff complained of anxiety and "mood
swings" (id. at 302). Ms. Benedict described
Plaintiff as "friendly and talkative" (id.
at 301). He reported sleeping only one to two hours each
night and experiencing difficulty leaving his home due to
"panic and anxiety" (id. at 302-03). Ms.
Benedict diagnosed Bipolar I Disorder, most recent episode
mixed, severe with psychotic features and a GAF score of 45
(id. at 303).
5, 2014, Aisha Ellis, NP of CHD's Caring Health Center
saw Plaintiff for an office visit to establish primary care,
including medication (id. at 310, 312). Plaintiff
reported being "a little off" because he had not
taken Risperidone and Trazodone in two weeks (id. at
310). The record of Plaintiff's behavioral assessment
indicated that Plaintiff suffered from insomnia, but was
"[n]egative for depression, " nervousness, and
anxiety (id. at 310). He was oriented x 3 and his
mood and affect, behavior, judgment, and thought content were
normal (id. at 311). He was prescribed Risperidone
and Trazodone (id. at 312).
14, 2014, Kimberly Gage, APRN, conducted Plaintiff's
medication evaluation at CHD (id. at 390). Plaintiff
complained of sleep disturbance, hearing voices that
"sound like 'a lot of scrambling, '" but
not commands, and depression (id. at 390, 392, 393).
He was euthymic, oriented x 3, and his recent and remote
memory and his attention/concentration were fair
(id. at 392, 393). His speech was within normal
limits and he displayed no problems with his receptive or
expressive language (id. at 392). His thinking was
"somewhat concrete but clear and organized, " and
his associations were intact (id.). Plaintiff
reported experiencing racing thoughts during the two weeks he
was not taking Risperidone (Risperdal), but the racing
thoughts decreased once he resumed taking Risperidone
(id. at 392, 393). Because Plaintiff was unaware
that Risperidone was also prescribed for mood symptoms, he
was taking it once daily instead of twice daily as prescribed
(id. at 392). Plaintiff was diagnosed with Bipolar I
Disorder, most recent episode mixed, severe with psychotic
features, cognitive disorder NOS, and learning disorder NOS,
and was again assigned a GAF score of 45 (id. at
392). APRN Gage directed him to continue with his medication
with the adjustment to the Risperidone dose (id. at
Gage saw Plaintiff at CHD again on July 8, 2014 for a
medication follow-up (id. at 385). Plaintiff was
oriented x 3, was "pleasant and in good spirits, "
his thinking was concrete, clear, and organized, his mood was
stable, his memory and attention/concentration were fair, and
his judgment and insight were "fair to poor depending on
context" (id. at 386-87). His speech, sleep,
and appetite were within normal limits (id. at 386).
He reported occasionally hearing his wife calling his name
and was drinking about four beers a day (id. at
386-87). His diagnoses and GAF score remained unchanged
(id. at 387).
September 11, 2014, Peter Landstrom, RNP, of CHD assessed
Plaintiff and reviewed his medications (id. at 380,
384). Plaintiff reported that he was feeling well and his
medication was effective, but he continued to hear
unintelligible voices (id. at 380). He reported that
he occasionally smoked marijuana and had not drunk any
alcohol in one month (id.). Plaintiff also reported
that he liked to watch "old westerns, " and did not
leave home much, but took daily walks with his wife
(id. at 380). The records show that Plaintiff was
euthymic and was oriented to all spheres (id. at
381-82). His speech and thought processes were normal, his
memory was intact, his attention/concentration were good, and
his judgment and insight were fair (id. at 381). His
diagnoses and GAF score remained the same as on May 14, 2014,
and RNP Landstrom recommended that Plaintiff continue with
his current medication regimen and his therapy with
"Marcus" (id. at 382). Plaintiff resisted
Mr. Landstrom's suggestion that he increase his
Ellis, NP, examined Plaintiff at the Caring Health Center on
October 6, 2014 (id. at 398). He was alert, oriented
x 3, and reported feeling well and continuing to maintain
sobriety (id.). His mood, affect, judgment, and
thought content were normal (id.).
visited NP Ellis again on November 10, 2014 (id. at
396). He told her that he drank ten to fifteen cups of coffee
a day, but did not drink water, and had experienced dizziness
and sweating on one occasion when he ate an entire cheesecake
(id.). He was oriented x 3, and his mood, affect,
and behavior were normal (id. at 396-97). He was
diagnosed with prediabetes and was prescribed metformin
(id. at 397).
Marcus Foster's Opinion
2, 2014, Marcus Foster completed a Mental Impairment
Questionnaire, some of which is illegible (id. at
305). Foster had been treating Plaintiff in one hour weekly
therapy sessions since February 28, 2014 (id.).
Plaintiff's diagnosis was Bipolar I with a GAF score of
45 (id.). Plaintiff was being effectively treated
with these psychotropic medications: Bupropion; Hydroxyzine;
Risperidone; Sertraline HCL; and Trazodone (id.).
The only side effect was "sleep disturbance leading to
fatigue" (id.). The legible prognosis was
"[c]hronic, severe mental illness requiring high level
of outpatient care indefinitely" (id.).
checked the boxes indicating the presence of the following
signs and symptoms: pervasive loss of interest in all
activities; decreased energy; feelings of guilt or
worthlessness; generalized persistent anxiety; mood
disturbance; difficulty thinking or concentrating; persistent
nonorganic disturbance of vision, speech, hearing, use of a
limb, movement and its control, or sensation; recurrent
obsessions or compulsions which are a source of marked
distress; emotional withdrawal or isolation; bipolar syndrome
with a history of episodic periods manifested by the full
symptomatic picture of both manic and depressive syndromes;
hallucinations or delusions; vigilance and scanning; easy
distractibility; memory impairment; sleep disturbance;
oddities of thought, perception, speech, or behavior;
decreased need for sleep; and recurrent severe panic attacks
(id. at 306). Foster further indicated that
Plaintiff did not have a low IQ or reduced intellectual
functioning (id. at 307).
to the boxes Foster checked on the form, Plaintiff had
"marked" restrictions on his daily living
activities and in maintaining social functioning and
"extreme" difficulty in maintaining concentration,
persistence, or pace (id.). In addition, Foster
checked the box indicating Plaintiff had a "[m]edically
documented history of chronic organic mental, schizophrenic,
etc., or affective disorder of at least 2 years' duration
that has caused more than a minimal limitation of ability to
do any basic work activity, with symptoms or signs currently
attenuated by medication or psychosocial support, and one of
the following . . ." but Foster did not check any of the
three choices that followed the statement (id. at
307-08). Mr. Foster anticipated that Plaintiff would be
absent from work for more than four days per month
(id. at 308). Mr. Foster further stated that
Plaintiff could manage benefits (id.).
Consultative Examination and State Agency
Victor Carbone, Ph.D.
Carbone, Ph.D., examined Plaintiff on January 14, 2014
(id. at 292). Plaintiff reported being paranoid,
anxious, depressed, and hypervigilant, and suffering from
flashbacks of the events that occurred while he was
incarcerated for seventeen years in Alabama (id. at
292, 293, 295). Plaintiff told Dr. Carbone that he
experienced racing thoughts and heard mumbling voices in his
head (id. at 293, 295). He also indicated
difficulties with concentration and memory (id. at
295, 296). During the mental status exam, Plaintiff was
oriented x 3, but was unable to complete a Mini Mental Status
Examination because he reported that he could not spell and
his "academics" were weak (id. at 295).
Dr. Carbone noted that Plaintiff's "[i]nsight into
his difficulties were quite limited" (id. at
initially denied any past substance abuse (id. at
293). After Dr. Carbone indicated that his history suggested
drug use, Plaintiff acknowledged that he began using powder
cocaine when he was 22 or 23, used crack cocaine until he was
incarcerated, used again after he was released, and stopped
using in 2011 (id.). He smoked two packs of
cigarettes a day (id. at 294).
Carbone noted that Plaintiff understood simple directions,
but had "more difficulty with complex concepts and [got]
overwhelmed very easy with much tearfulness during the
evaluation" (id. at 296). According to Dr.
Carbone, Plaintiff's anxiety "would certainly impact
his ability to focus . . ." (id.). Dr. Carbone
diagnosed depressive disorder NOS and likely borderline
intellectual functioning, bipolar disorder NOS was to be
ruled out, and PTSD and cocaine dependence were indicated by
the history Plaintiff supplied (id.). Dr. Carbone
assigned a GAF score of 52 (id.).
Joseph Whitehorn, Ph.D.
Whitehorn, Ph.D., a Disability Determination Services
("DDS") consultant, reviewed Plaintiff's
treatment records on January 16, 2014 (id. at 98).
He determined that Plaintiff had moderate restrictions on
daily living activities, moderate difficulties in maintaining
social functioning and concentration, persistence, and pace,
and had experienced no repeated episodes of decompensation
(id. at 93). Dr. Whitehorn reported that
Plaintiff's memory and understanding were adequate for
simple tasks (id. at 94). He further opined that
Plaintiff was able to "sustain pace and focus on simple
tasks for two hour periods during a work day, "
"adhere to social norms in a work setting, " and
"handle changes in simple work routines"
(id. at 95-96).
making these determinations, Dr. Whitehorn principally relied
on Plaintiff's mental status exams that were conducted on
July 1 and 24, 2013 and indicated that "reports of
serious [symptoms] given at [the] current [consultative
examination] are somewhat doubtful" (id. at
96). Dr. Whitehorn also noted the discrepancy between
Plaintiff's function report that said he was too nervous
to go out alone and his treatment providers' and Dr.
Carbone's reports that fail to mention this impairment
(id. at 96). Dr. Whitehorn indicated that
"details or data" to support Plaintiff's
diagnoses of schizoaffective disorder and intermediate
explosive disorder were absent from his treatment records
(id. at 96). Dr. Whitehorn diagnosed: depressive