Dacosta v. Berryhill

          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. ...