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 COMMISSIONER'S DECISION (DOCKET NOS. 11 &
15)
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE
I.
Procedural Background
Anne
Marie Dacosta ("Plaintiff") brings this action
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3)
seeking review of a final decision of the Acting Commissioner
of Social Security ("Commissioner") denying her
application for Social Security Disability Insurance Benefits
("DIB") and Supplemental Security Income
("SSI"). Plaintiff applied for DIB and SSI on
February 24, 2011 and March 23, 2011, respectively, alleging
an August 16, 2006 onset due to problems stemming from a
variety of impairments including: bipolar disorder, multiple
personality disorder, anxiety/post-traumatic stress disorder
(PTSD), attention deficit hyperactivity disorder (ADHD),
asthma/bronchitis, endometriosis, MRSA right toe, migraine
headaches, back pain, and ankle pain (Administrative Record
(“A.R.”) 467-475, 479-488, 521-22). Her
applications were denied initially (A.R. 346-351) and on
reconsideration (A.R. 353, 357-59). She requested a hearing
before an ALJ (A.R. 363) and one was held on November 14,
2013 (A.R. 145-181). On January 28, 2014, the Administrative
Law Judge ("ALJ") issued a partially favorable
decision, finding that Plaintiff was disabled for a closed
period from August 16, 2006 through October 8, 2011, but was
not disabled from October 8, 2011 through the date of the
decision (A.R. 300-319). Plaintiff sought review of the
decision (A.R. 464). The Appeals Council remanded the case to
the ALJ to: evaluate the effect of Plaintiff's medication
noncompliance on the severity of her mental health
impairments; further evaluate her mental health impairments;
consider and explain the weight assigned to nonexamining
source opinions; give further consideration to
Plaintiff's residual functional capacity (RFC) and
identify record evidence supporting the assessed limitations;
if warranted, obtain supplemental information from a
vocational expert; and, if the result of this reconsideration
was a decision favorable to Plaintiff, determine whether drug
abuse or alcoholism was a contributing factor material to the
determination of disability (A.R. 341-44). After a January 7,
2016 re-hearing (A.R. 182-219), the ALJ found that Plaintiff
had not been disabled at any time between August 16, 2006 and
the date of the decision and denied Plaintiff's claims
(A.R. 96-140). The Appeals Council denied review (A.R. 1-6).
Thus, the ALJ's second decision became the final decision
of the Commissioner.
Plaintiff
appeals from the ALJ's second decision on the grounds
that: (1) the decision after remand was inconsistent with the
ALJ's first decision notwithstanding that there was no
new evidence before the ALJ and this constituted error as a
matter of law; and (2) the ALJ erred by failing to accord
controlling weight to the opinion of Plaintiff's treating
mental health care provider (Dkt. No. 12 at 8, 11). Pending
before this court are Plaintiff's motion for judgment on
the pleadings requesting that the Commissioner's decision
be reversed or remanded for further proceedings (Dkt. No.
11), and the Commissioner's motion for an order affirming
the decision of the ALJ (Dkt. No. 15). The parties have
consented to this court's jurisdiction (Dkt. No. 18).
See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For
the reasons stated below, the court will grant the
Commissioner's motion for an order affirming the
Commissioner's decision and deny Plaintiff's motion.
II.
Legal Standards
A.
Standard for Entitlement to DIB and SSI
In
order to qualify for DIB and SSI, a claimant must demonstrate
that she is disabled within the meaning of the Social
Security Act.[1] A claimant is disabled for purposes of DIB
and SSI if she "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. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant
is unable to engage in any substantial gainful activity when
she is not only “unable to do [her] previous work, but
cannot, considering [her] 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 [s]he
lives, or whether a specific job vacancy exists for [her], or
whether [s]he would be hired if [s]he applied for
work.” 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B). The Commissioner evaluates a claimant's
impairment under a five-step sequential evaluation process
set forth in the regulations promulgated by the Social
Security Administration ("SSA"). See 20
C.F.R. § 404.1520(a)(4)(i-v).[2] 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. § 404.1520(a)(4).
Before
proceeding to steps four and five, the Commissioner must make
an assessment of the claimant's 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, including the the national economy that the
claimant can perform notwithstanding his or her restrictions
and limitations. 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.
§ 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) (per curiam)). 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)).
"While 'substantial evidence' is 'more than
a scintilla,' it certainly does not approach the
preponderance-of-the-evidence standard normally found in
civil cases." Bath Iron Works Corp. v. U.S.
Dep't of Labor, 336 F.3d 51, 56 (1st Cir. 2003)
(citing Sprague v. Dir., Office of Workers' Comp.
Programs, U.S. Dep't of Labor, 688 F.2d
862, 865 (1st Cir. 1982)). 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. See Irlanda Ortiz,
955 F.2d at 769. 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 ALJ may
not ignore evidence, misapply the law, or judge matters
entrusted to experts. Nguyen, 172 F.3d at 35.
III.
Relevant Facts
A.
Plaintiff's Background
Plaintiff
was 36 on the date of the second hearing. She had attended
one year of college. She lived with her sixteen-year-old son
and had partial custody of her two-year-old daughter. She had
not worked since the alleged onset of disability (August
2006). Before that, she had worked as a cashier, a store
manager, and a waitress (A.R. 187-190). At the time of the
second hearing, she had reactivated her driver's license
(A.R. 188-89).
B.
Medical Records Relevant to Plaintiff's Claims
Plaintiff's
medical history is lengthy and complex. The court summarizes
portions of the medical history that appear most relevant to
Plaintiff's claims of error which are the records related
to Plaintiff's mental health impairments.
On
August 6, 2006, Plaintiff went to the emergency room
reporting depression and suicidal ideation and was
hospitalized at a behavioral health hospital (A.R. 602-03).
She was diagnosed with adjustment disorder, PTSD, and
depression with suicidal ideation (A.R. 606). She tested
positive for the use of marijuana and cocaine (A.R. 605).
While hospitalized, she consulted with a social worker and
was given Remeron. According to the August 9, 2006 hospital
notes, the patient was very much improved on discharge. Her
depression seemed to have resolved. She was discharged with a
prescription for Celexa, a referral to a therapist, and a
scheduled appointment with a psychiatrist. She was assigned a
Global Assessment of Functioning Score (GAF) score of 50 on
discharge (A.R. 600).[3]
On
August 29, 2006, Plaintiff was admitted to a psychiatric
inpatient unit, reporting depression and suicidal ideation.
She reported being involved with heavy substance abuse (crack
and powder cocaine) (A.R. 614). She was diagnosed with major
depressive disorder, recurrent, and cocaine abuse (A.R. 981).
She was discharged on September 4, 2006 with a GAF score of
50. Her overall mood, judgment, and insight had improved. She
had no delusions, hallucinations, or suicidal ideation. It
was noted that she would be following up at the Griswold
Center for treatment related to her mental health (A.R. 981).
From
November 2006 through April 2007, Plaintiff received
follow-up care from physician Merrilee Leonhardt (A.R. 608).
On November 10, 2006, treatment notes indicate that Plaintiff
was diagnosed with a mood disorder not otherwise specified,
rule out bipolar disorder, and cocaine and marijuana
dependence, reported sober. Plaintiff further reported that
she was irritable and experiencing mood swings. Her sleep was
disrupted, but her attention, concentration, and memory were
grossly intact. Her past medical history was reportedly
positive for migraines. Dr. Leonhardt prescribed Remeron,
Celexa, and lithium and assessed a GAF score of 65 (A.R.
608). In December 2006, Plaintiff was judged stable. She was
not taking lithium, but continued to take Celexa. Seroquel
was substituted for Remeron. Her primary care physician had
prescribed Ritalin (A.R. at 610). Plaintiff returned for
treatment with Dr. Leonhardt on April 27, 2007, reporting
that she had been in Portugal in the interim and had
discontinued her medications in February. Plaintiff reported
being very depressed. She was nonetheless alert and oriented
times three and her affect was appropriate. Dr. Leonhardt
restarted her on Celexa and Remeron (A.R. 612). The next
record of mental health treatment is on December 19, 2007,
when Plaintiff saw licensed social worker Kipp Armstrong, at
which time her GAF score was assessed at 56 (A.R. 1075).
On
March 5, 2008, Plaintiff went to the emergency room,
requested a psychiatric evaluation, and was admitted. She
reported auditory hallucinations and suicidal ideation. She
had tried to cut her wrists two days ago. She appeared
depressed, and was wrapped in a blanket and rocking. She
reported that she had started using cocaine and marijuana
around two days earlier (A.R. 776-77). She presented with
depression and was diagnosed with a substance-induced mood
disorder. Plaintiff was discharged on March 10, 2008.
According to the discharge report, the treating care
providers “straightened out [Plaintiff's]
medications and streamlined their dosages.” The
hospital prescribed Paxil, Wellbutrin, Vistaril on an as
needed basis for anxiety, and ReVia to address cravings for
cocaine. Prescriptions for Ritalin, Xanax, Zyprexa, and
Celexa were discontinued. A mental status examination on
discharge indicated that Plaintiff was pleasant, related
well, had a logical and goal directed thought process, an
appropriate affect, intact judgment, and good insight. She
denied suicidal ideation. Her GAF score at discharge was
assessed at 70. Her prognosis was judged to be excellent
provided she remained sober and attended outpatient treatment
(A.R. 979-980).
Plaintiff
was hospitalized again from December 14 to December 19, 2008
for increased signs of depression (A.R. 971). She presented
at the hospital with cuts to her wrist and an overdose of
“attention deficit pills.” She tested positive
for use of cocaine and marijuana (A.R. 969). The diagnosis on
discharge was cocaine-induced mood disorder. The results of a
mental status examination on discharge were that Plaintiff
was pleasant, related well, and showed a logical and goal
directed thought process. Her affect was appropriate, her
insight good, and her judgment intact. Her GAF score was
again assessed at 70. Her prognosis on release was guarded
because she appeared “ambivalently connected to her
need for sobriety” (A.R. 969-970). Follow up care was
expected to be with Imad Khreim, M.D., whom Plaintiff had
seen on March 27, 2008 (A.R. 1092), and Mr. Armstrong (A.R.
970).
Plaintiff
saw Dr. Khreim on January 27, February 26, April 6, May 7,
and July 28, 2009 (A.R. 1080-81, 1083-1090). Dr. Khreim
diagnosed mood disorder not otherwise specified and
polysubstance dependence in partial remission. The goal of
treatment was to reduce and control symptoms, avoid
hospitalizations, and maintain and improve functioning. In
January, Plaintiff reported that she was still having
difficulties, but felt that the Zyprexa was helping with
sleep and anxiety. She was alert and oriented times three,
with a normal attention span. There were no mood swings. Her
insight and judgment were fair. In February, Dr. Khreim
observed that Plaintiff was “stabilizing.” Her
affect had improved and she reported no substance abuse. By
March 2009, Plaintiff reported feeling “much
better.” She was attending individual counseling and a
rehabilitation program. In May 2009, Plaintiff saw Dr. Khreim
after “a long time of no show.” She reported that
she had felt worse and had been hospitalized for a few days
but was feeling better by the time of her appointment. Dr.
Khreim reviewed and reconciled Plaintiff's medications.
He observed that Plaintiff was alert, oriented times three,
and had an appropriate affect. Her attention span was normal
and she was not experiencing mood swings. She reported no
substance abuse. Dr. Khreim continued her on Cymbalta and
Zyprexa. On July 28, 2009, Dr. Khreim noted that Plaintiff
reported that she was compliant with her medication regime
but was still experiencing anxiety. She had taken a Klonopin
from a friend but otherwise reported no substance abuse. Dr.
Khreim noted that Plaintiff was alert and oriented time
three. Her affect was anxious. She was not experiencing mood
swings, her attention span was normal, and her insight and
judgment were fair. Dr. Khreim adjusted Plaintiff's
medication by adding clonidine (A.R. 1080-81, 1083-1090).
On
April 30, 2009, while Plaintiff was in treatment with Dr.
Khreim, she was admitted to the hospital for a Zyprexa
overdose after she was evicted from her apartment (A.R. 701).
She was discharged on May 6, 2009, with diagnoses on
discharge of bipolar disorder with a recent episode of
depression and cocaine abuse and migraine headaches. Her
medications on discharge were Buspirone, olanzapine,
hydroxyzine as needed for anxiety, Lamictal (a mood
stabilizer), and Cymbalta (A.R. 703). Her discharge status
was “improved.” On the day of her discharge,
Plaintiff reported being in a “good mood.” She
said that the medications seemed to be helping. Her GAF score
was assessed at 58 (A.R. 703). Her next - and, so far as
appears in this administrative record, final - psychiatric
hospitalization was on March 5, 2010. Plaintiff's mother
called an ambulance service. Plaintiff told the EMTs she had
not taken her psychiatric medications for the last three
days. On admission, she was restless, rambling in her speech,
and suffering from auditory hallucinations (A.R. 853, 857). A
drug screen was negative (A.R. 855). The diagnosis at
discharge on March 7, 2010 was altered mental status due to
neuroleptic malignant syndrome and drug withdrawal, anxiety,
depression, and asthma (A.R. 857).
Treatment
notes from Plaintiff's counseling with Mr. Armstrong on
May 19, 2010, indicate that Mr. Armstrong was treating
Plaintiff for major depressive disorder, borderline
personality disorder, and maintenance of sobriety from
polysubstance abuse, which was in remission. Plaintiff was
alert, cooperative, and oriented times three. Her mood was
moderately depressed and her affect was anxious (A.R. 834).
Mr. Armstrong's notes through December 7, 2010
consistently report that Plaintiff was alert, cooperative,
and oriented times three. Mr. Armstrong continued to observe,
however, that Plaintiff was depressed and her affect
disturbed. Throughout 2010, Plaintiff reported abstinence
from drugs. She regularly spoke about events in her personal
life, including those relating to the custody of her son and
other interactions with her family, that were causing
significant stress (A.R. 820-833).
On
January 7, 2011, Mr. Armstrong was interviewed in connection
with Plaintiff's application for state disability
benefits. Mr. Armstrong reported that Plaintiff had a very
confusing presentation because it varied so much. Sometimes
she appeared quite organized. At other times, she was
profoundly disorganized. Mr. Armstrong said that he very
often had no idea what she was talking about. He expressed
the view that Plaintiff was either “quite reality
impaired a lot of the time or she is a pathological liar who
is trying to use therapy to support other arguments she is
having in the community.” Mr. Armstrong stated that
Plaintiff had chronic anxiety, a history of panic attacks,
and a diagnosis of PTSD. He did not believe she had
flashbacks. Socially, she came across as “sort of
bizarre and paranoid.” He “really did not have
high hopes about her getting herself together” (A.R. at
786). On January 20, 2011, Plaintiff was found disabled
though January 19, 2013 for purposes of the state's
program of transitional aid to families with dependent
children (A.R. 779).
On June
4, 2011, Plaintiff was brought by ambulance to the emergency
room because she had slashed her left wrist. She reported
consuming alcohol. She was kept under observation for four
hours, then determined to be stable for discharge (A.R.
945-46). On December 6, 2011, she was back in the emergency
room after having had a fight while intoxicated that resulted
in a broken nose. She was found to be pregnant. ...