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Pagan v. Berryhill

United States District Court, D. Massachusetts

September 29, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.



         I. Introduction

         This 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. § 1383(c)(3) (referring to 42 U.S.C. § 405(g)). Jan C. Torres Pagan (“Plaintiff”) asserts that the Commissioner's decision denying him SSI-memorialized in a May 21, 2013 decision of an administrative law judge (“ALJ”)-rested on legal error. Plaintiff has filed a motion to reverse that decision and the Commissioner has moved to affirm. For the reasons set forth below, the court allows the Commissioner's motion (Dkt. No. 20) and denies Plaintiff's motion (Dkt. No. 16).

         II. Background

         Plaintiff was born in December of 1994. (Administrative Record (“A.R.”) 153.) He received a bilingual education up to the ninth grade and testified before the ALJ that he intended to take GED classes and hoped to ultimately complete trade courses in auto-body repair or engineering. (Id. at 183-84.) He has never been employed and received SSI benefits between 2006 and 2013, from the ages of 12 and 19. (Id. at 60, 135.) Plaintiff initially qualified for SSI in June of 2006 upon application by his mother, Lilliam Pagan (“Ms. Pagan”), who also receives social security benefits for “bipolarity” and anxiety, when the Commissioner found that his condition satisfied Listing 112.05 requirements for “Mental Retardation.”[2] (Id. at 34, 60.) Plaintiff received SSI benefits on that basis until approximately July 3, 2013, when the Commissioner “redetermined” his disability status pursuant to the Work Opportunity Reconciliation Act of 1996 (“PRWORA”), which requires the Commissioner to review eligibility of all SSI recipients under standards applicable to adults within one year of an individual's 18th birthday. (A.R. 13, 50; see also 20 C.F.R. § 416.987 (outlining scope and procedures for “[d]isability redeterminations for individuals who attain age 18.”)) Plaintiff then petitioned for reconsideration in November of 2013, but failed to show up at a subsequent hearing before a Disability Hearing Officer who, after receiving no response to his inquiries, concluded from the record before him that Plaintiff was able to find and perform limited work despite limitations caused by a learning disability. (Id. at 60-65.) Plaintiff then sought review before an ALJ, who effectively affirmed the Hearing Officer's decision after a hearing at which Plaintiff and his mother testified. (Id. at 7-21.) The Social Security Administration Appeals Council denied review in February of 2016, (id. at 1), and Plaintiff initiated this action for judicial review in April of the same year, (Dkt. No. 1).

         A. Medical Evidence in the Administrative Record

         During the redetermination process, Plaintiff asserted disability due to three conditions: “learning disorder, psychiatric issues, and hearing loss.” (A.R. 60.) His “Disability Report” forms- the primary documents in the record through which Plaintiff provided information concerning his alleged disabilities-primarily provided information regarding psychiatric issues and treatment. The first, dated July 26, 2013, indicated that “Valley Psychiatrics” treated him for “psychiatric issues” and provided “counseling and medications” (Id. at 147). A second form-evidently created in mid-2014, several months after the agency's initial determinations that Plaintiff was not disabled-again listed Valley Psychiatrics as a medical provider. (Id. at 156.) The reason for his visits were by then described with one word-“suicidal”-and the treatment received listed as “home visit counceling” [sic]. (Id.) In a third form, also from mid-2014, Plaintiff provided that “[t]he doctor told me . . . my condition was that I have bypolarness [sic], [a]nxiety, and problems sleeping.” (Id. at 173.) The same form listed medications for “bypolarness, ” sleeping issues, anxiety, bipolar disorder, and migraines, each prescribed by Candace O'Brien, CNS, of Valley Psychiatrics. (Id. at 175.)

         Plaintiff had a consultative psychological evaluation at Hartford Psychological Services on June 26, 2013, with Dr. Rafael Mora de Jesus, Ph. D. (Id. at 183.) Plaintiff reported to Dr. Mora de Jesus that he was not taking any medications, cared for his child while his spouse attended school, and that his “main disabling condition is having undergone surgery in his nose due to problems” stemming from childhood surgeries on his throat and ears, which he said caused him nosebleeds when in the sun, problems breathing, and pain in the jaw when lifting heavy objects. (Id. at 183-185.) After administering TONI-IV cognitive testing, the doctor concluded that Plaintiff had a non-verbal IQ of 84, which he deemed “below average, ” average reading skills, borderline math skills, and self- care skills within “normal limits.” (Id. at 185-86.) Diagnosis included a Global Assessment of Functioning (“GAF”) score of 70[3] and “Learning Disability (math related).” (Id. at 186.)

         One month prior, Plaintiff underwent a consultative physical examination with an otolaryngologist, Dr. Robert Osofsky. (Id. at 15, 177-82.) Dr. Osofsky's report recited Plaintiff's account of experiencing hearing loss for approximately ten years after receiving surgery for an ear infection. (Id. at 177.) Osofsky reported cleaning Plaintiff's ears of wax and performing an audiogram for both ears that resulted in a finding of “normal, except for a very mild high frequency sensorineural loss in both ears.” (Id.). He concluded there was no significant ear or hearing pathology and that Plaintiff's “hearing should in no way restrict [his] activities or ability to work.” (Id.)

         Finally, on July 2, 2013, a state agency psychological consultant, John Perlman, Ed. D., reviewed the evidence described above and performed a Mental Residual Functional Capacity Assessment. (Id. at 188-91.) Perlman generally assessed Plaintiff was without significant mental limitations, finding only moderate limitations in the ability to understand and follow detailed instructions, to concentrate for extended periods, and to complete work-days without interruptions from psychological symptoms or without regular rest periods. (Id. at 188-89.) Perlman also found mild limitations amounting to “restrictions of activities of daily living” and “difficulties in maintaining social functioning.” He found “moderate” limitations causing difficulties in maintaining concentration. (Id. at 202.) Perlman ultimately assessed that Plaintiff was able to understand and remember simple instructions, to complete simple and routine tasks, concentrate for at least two hours in “simple 1 and 2 step tasks, ” and relate in a socially appropriate manner. (Id. at 190.)

         B. Testimony before the ALJ

         Plaintiff, his mother, and a vocational expert testified before ALJ Leonard J. Cooperman on October 21, 2014. (Id. at 22-45.) Plaintiff appeared pro se[4] and after the ALJ advised him of his right to an attorney, noting that appearing through “an attorney may be more beneficial” to his interests, Plaintiff declared that he nevertheless wanted to proceed without representation. (Id. at 25-27.) The ALJ then confirmed in informal terms that Plaintiff understood the purpose of the proceeding was to determine whether he still “deserve[d] to be on [SSI] benefits” or needed to “look for a job . . . or be in school.” (Id. at 31-32.) After Plaintiff indicated his mother was attending and intended to assist him at the hearing because of her knowledge and involvement in his initial 2006 SSI application, the ALJ directed questions to her through a Spanish interpreter. (Id. at 33-35.) Ms. Pagan then testified that Plaintiff originally qualified for SSI because he had been “unable to hear and to speak [or] to retain anything at school.” (Id. at 35-36.) She then acknowledged Dr. Osofsky's conclusion that Plaintiff had no hearing problems and, when asked why he should remain on SSI, made vague reference to psychiatric issues and medication, presumably those involving Valley Psychiatrics. (Id. at 35-36.) Upon learning that Ms. Pagan had no knowledge of the consultative psychological evaluation that, in the ALJ's terms, concluded that Plaintiff was “relatively normal, ” the ALJ adjourned the hearing to allow Plaintiff and his mother to review that report. (Id. at 36-38.)

         After that adjournment, Ms. Pagan did not immediately continue her testimony. Rather, Plaintiff took the stand and acknowledged the psychological report's accuracy but asserted he nevertheless qualified for SSI because he couldn't “work in the sun [without getting a] headache [or] lift heavy stuff” without pain (Id. at 38-40.) The ALJ then swore in a vocation expert who testified to the availability of various jobs requiring only light, unskilled work indoors, including work as a cashier or cleaner. (Id.) The ALJ then asked Plaintiff if there was any reason he could not perform such work, and Plaintiff answered that there was not. (Id. at 41.) The ALJ then questioned Plaintiff's mother on the same point who, after initially professing confusion as to the questions posed, stated she would not contradict her son's testimony.[5] (Id. at 41-43 (“If he says he's able to do that, I will not say against-I could not go against his words.”)) Before the hearing concluded the ALJ invited Plaintiff to provide any other testimony he wanted considered, and Plaintiff responded that he experienced anxiety, sleeping problems, and “bipolarity, ” but then indicated that the medication he received for those issues “help[ed] him now, ” implying that those problems were alleviated by medication and had been worse in the past. (Id. at 44.) On that note substantive testimony concluded.

         III. ...

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