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Lariviere v. Berryhill

United States District Court, D. Massachusetts

December 15, 2017

NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          F. Dennis Saylor, IV United States District Judge

         This is an appeal of a final decision of the Acting Commissioner of the Social Security Administration (“SSA”) denying plaintiff Andrew Lariviere's application for Supplemental Security Income (“SSI”) and Child Insurance Benefits (“CIB”).[1] Lariviere appeals the denial of his application on the ground that the administrative law judge (“ALJ”) erred in discounting the opinions of his treating and consultative physicians.

         Lariviere has moved to reverse the decision of the Acting Commissioner, and defendant has cross-moved to affirm the decision of the Acting Commissioner. For the reasons stated below, the decision will be affirmed.

         I. Background

         A. Factual Background

         Andrew Lariviere was 26 years old at the time of his hearing on September 16, 2015. (A.R. 35, 38). He graduated from Bridgewater State University in 2013 with a major in English and a minor in Secondary Education. (A.R. 39, 44). He has no work experience and lives with his parents in Massachusetts. (A.R. 39, 221-22).

         1. Medical Evidence from Examining Physicians

         The earliest record of treatment of Lariviere dates back to December 2012, when he reported anxiety to his primary-care physician, Dr. Felicia Freilich. (A.R. 272-73).[2] At that appointment, Dr. Freilich noted that the onset of his anxiety was “many years ago, likely around age 5, ” that its status was “improving, chronic, ” and that he denied “anxiety, depressed mood, [and] panic attacks.” (A.R. 272). At that time, Lariviere was taking a daily 40 mg dose of Celexa (citalopram hydrobromide) for anxiety and OCD. (Id.). Dr. Freilich noted that his anxiety had “[i]mproved significantly on Celexa” and that his OCD was “much improved on Celexa.” She noted that his mother reported that “Celexa has helped Andrew immensely- anxiety is better OCD-type behaviors are better. He is back to himself-laughing, joking, etc.” (Id.). In her general psychological evaluation, she noted that he was “still with odd, Asperger-type affect, somewhat flat-HOWEVER, much brighter than before. Made a couple jokes, more interactive than previous.” (Id.). Dr. Freilich noted that he was not seeing a therapist, but that she “[a]gain, offered referral to group therapy for Asperger's and social interaction, but pt. declined.” (Id.).

         Lariviere continued to see Dr. Freilich for primary care. He had a physical examination on January 10, 2013, at which Dr. Freilich noted that he was “[d]oing well overall-much more functional since he started on the Celexa.” (A.R. 270). As to his OCD, she noted that he was “[d]oing very well on Celexa-this is probably the most calm I have ever seen him. Mom very happy with his progress-OCD-type behaviors are much improved.” (Id.). She also noted: “odd affect (this is his baseline with the Aspergers), does seem a lot more calm though, cognitive function intact, cooperative with exam.” (A.R. 271).

         At his next physical on January 16, 2014, Dr. Freilich noted that Lariviere's “[m]ain issue is his Aspergers, OCD, anxiety which is making it very difficult for him to get a job.” (A.R. 268). She noted that he was “[d]oing very well on Celexa in terms of his OCD-type behavior, however, the anxiety and social difficulty typical for Asperger are still present.” (Id.). She also noted that he “[f]eels well. Mom wants him to apply for disability. Pt. says he is doing well on the Celexa in terms of his anxiety.” (Id.). And she noted “poor eye contact, affect flat, affect restricted (baseline for him).” (A.R. 269).[3]

         On March 14, 2014, Lariviere saw Dr. Timothy Horton for a psychodiagnostic interview upon referral from the Massachusetts Rehabilitation Disability Determination Services. (A.R. 279-81). Lariviere reported that he had a friend, but that he is lonely, and that he drives regularly. (A.R. 279-80). Dr. Horton described Lariviere's daily activities as:

Able to manage personal care independently, Mr. Lariviere is also capable of performing all household chores. He knows how to use both a cell phone and the Internet. Interests/hobbies are video games and Internet (for information and social networking). Capacity to focus/concentrate is described as adequate. During the past two weeks, out-of-home activities were shopping, visiting friends/relatives, exercising, and eating at a restaurant.

(A.R. 280).

         With respect to his mental status, Dr. Horton described him as “poised and humorless, ” “[m]aintaining normal eye contact, ” “cooperative, ” “[a]lert and well oriented, ” and that his “affect is congruent to thoughts with normal intensity and limited range.” (A.R. 280-81). Dr. Horton administered a mini-mental state evaluation, and Lariviere scored 29/30, “which is above the recommended cutoff score for identifying cognitive impairment.” (A.R. 280). Dr. Horton noted that his “[c]ognitive ability is estimated to be above average, ” that his “[l]ong-term memory is intact, ” that his “[s]peech is rapid but otherwise normal, ” and his “[e]xpressive language skills are well-developed.” (Id.). As to his anxiety, Dr. Horton noted: “Obsessive content and compulsive tendencies are reported. Mood is described as apprehensive (anxiety in some types of social settings, e.g., student teaching, public speaking).” (Id.).

         Dr. Horton diagnosed “Social Phobia (300.23); rule-out other Anxiety Disorders, ” obesity, and “occupational and economic problems.” (A.R. 281). He assessed a global assessment of functioning (“GAF”) score of 60. (A.R. 281). He concluded as follows:

With regard to employment, Mr. Lariviere is capable of asking questions, requesting assistance, understanding and recalling work procedures, and meeting hygiene standards. Symptom (social anxiety in specific types of settings) interference may negatively impact attendance, work/rate persistence, tolerance for change/stress, and capacity to sustain working relationships with coworkers and supervisors.


         On July 18, 2014, Dr. Freilich submitted a DDS questionnaire in which she noted that “Andrew has Asperger's syndrome and OCD-both of which make it very difficult to function socially in a work environment.” (A.R. 295). In response to a prompt requesting information as to whether his condition had worsened or changed, she stated: “Andrew continues to exhibit classic Asperger-type behavior-difficulty reading social cues, difficulty interacting with others. He also has significant anxiety and OCD, which is treated with medication. While the medication does help with the anxiety and OCD, Andrew would have a very hard time functioning in a work environment.” (A.R. 296).

         At his February 6, 2015 annual physical examination, Lariviere reported to Dr. Freilich that his “[m]ain concern is worsening OCD-doesn't think the Celexa is working anymore.” (A.R. 308). She also noted “odd affect, poor eye contact, mood depressed, anxious-appearing, alert, oriented, cognitive function intact, cooperative with exam.” (A.R. 310). As to his OCD, Dr. Freilich wrote:

Pt has finally agreed to see psychiatry (I have tried to refer him several times over the years), so I have given him a list of psychiatrists to call and schedule an appt. I think that pt would benefit from Abilify or another atypical antipsychotic, but would prefer for pt to be following by psychiatry. Pt admittedly has only agreed to see psychiatry since he was denied SSI.

(A.R. 310-11).

         Lariviere saw Dr. Gabriela Velcea, a psychiatrist, for an evaluation on June 19, 2015. He reported to her that “his emotional struggles have been increasingly more severe in the past year or so, to the point of rarely leaving the house, ” and that the Celexa “was initially helpful, but lately doesn't seem to help as much.” (A.R. 335-36). She diagnosed PTSD, OCD, and Asperger's disorder and assessed a GAF of 55. (A.R. 339). She increased his dose of Celexa to 60 mg. and “recommended individualized therapy ASAP.” (Id.). It appears, however, that Lariviere did not want therapy, because she also made a note to follow up with “therapist referral if pt. decides to accept it.” (Id.).

         Lariviere saw Dr. Velcea two more times. On July 6, 2015, she noted that his condition had “[i]mproved, ” and that she had explained to him and his mother the “need for cognitive restructuring, basic CBT principles.” (A.R. 340). On August 17, 2015, she again noted that his condition was “[i]mproved” and that he “reports he has been doing better, anxiety diminished, able to function better, although he is not doing too much outside the house.” (A.R. 341). In addition to the 60 mg. dose of Celexa, she prescribed Ativan “for anxiety before known triggers.” (Id.).

         2.Function Reports

         Both Lariviere and his mother submitted reports on his functioning and activities in connection with his initial application for benefits. (AR. 227, 234). His mother indicated that he “eat[s], cook[s], plays video games, enjoys his cats, watches TV, does some chores, sleeps at various times no set sleep pattern, ” and that his hobbies include “creating a computer game” and “drawing.” (A.R. 227, 231). She noted that he feeds, grooms, and cleans the litter box for his cats. (A.R. 228). She indicated that he is capable of his own personal care, but that he is “not very concerned about his hygiene” and “has to be constantly reminded & pushed to bathe & change clothes.” (Id.). With respect to chores, she wrote that he does cleaning and laundry but needs “constant reminder[s]” and it ...

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