United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ADOPTING REPORT AND
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
an action for review of a final decision of the Commissioner
of Social Security, in which the Commissioner found that
Plaintiff Eddie Echevarria Maldonado
(“Plaintiff”) was not disabled under the Social
Security Act and, accordingly, denied Plaintiff’s claim
for Social Security Disability Insurance and Supplemental
Security Income. Currently before the Court is the Report and
Recommendation of Magistrate Judge Marianne B. Bowler and
Plaintiff’s objections thereto. [ECF Nos. 30, 31].
September 21, 2018, Plaintiff moved for an order reversing
and remanding the decision of the Commissioner, [ECF No. 16],
and on October 24, 2018, the Commissioner moved for an order
affirming the decision, [ECF No. 18]. On February 6, 2019,
the Court referred this case to Magistrate Judge Bowler for a
Report and Recommendation on the parties’
cross-motions. [ECF No. 21]. After a hearing on March 4,
2019, Magistrate Judge Bowler issued her Report and
Recommendation on September 4, 2019, recommending that the
Commissioner’s motion be allowed and that the
Plaintiff’s motion be denied. [ECF No. 30 (“R.
& R.”) at 92]. Plaintiff filed objections to the
Report and Recommendation on September 13, 2019. [ECF No.
31]. The Commissioner responded to Plaintiff’s
objections on September 25, 2019. [ECF No. 32].
accordance with 28 U.S.C. § 636(b), the Court must make
a de novo determination of those portions of the
Report and Recommendation to which the Plaintiff has
objected. Here, Plaintiff raises seven objections to the
Magistrate Judge’s Report and Recommendation.
See [ECF No. 31]. The Court responds to each of
Plaintiff’s objections below.
Weight Afforded LCHC-BH Treatment Team Report
makes two arguments in support of his objection that the ALJ
erred by giving “little to no probative weight”
to a mental impairment questionnaire prepared by a team of
providers from Lowell Community Health Center Behavioral
Health Services (“LCHC-BH”), which included Dr.
Neelam Sihag, therapist Olga Madrid, and prescribing nurse
Martha Root. See [ECF No. 31 at 2–6; Tr. 28,
1974–79]. First, he argues that Dr. Sihag was an
acceptable medical source (“AMS”) and thus the
mental impairment questionnaire signed by Dr. Sihag, Ms.
Madrid, and Ms. Root (the “LCHC-BH Report”) was a
treating source opinion. See [ECF No. 31 at 2–4].
There is no dispute that Dr. Sihag is an AMS because she is a
licensed physician. See 20 C.F.R. §
404.1502(a). Plaintiff also agrees that Dr. Sihag was not
personally a treating source. See [ECF No. 31 at 2].
Plaintiff, however, cites to SSA internal operating
instructions about how to confirm that evidence is from an
AMS, which state that medical evidence should be considered
to be from an AMS if it shows that the “AMS had a role
in the care or evaluation of the individual alone or as part
of an interdisciplinary team, (such as treating, examining,
interpreting test results, reviewing treatment records, or
overseeing treatment).” [ECF No. 31 at 3]. Based on
these instructions, Plaintiff concludes that if Dr. Sihag is
an AMS and oversaw treatment, then the LCHC-BH Report is a
treating source opinion. See POMS DI
22505.003(B)(1); [ECF No. 31 at 3 (“If Dr. Sihag is an
AMS, overseeing treatment as she does, then the team is just
what it appears to be, a treating source.”)].
Plaintiff’s logical leap is not supported by law.
See [R. & R. at 63–65, 67–75]. The
Court therefore overrules this objection after de
novo review for the reasons articulated by the
Magistrate Judge in her Report and Recommendation.
Plaintiff claims that the ALJ violated SSR 06-03p by not
relying on the LCHC-BH Report, which was signed by Ms.
Madrid, Plaintiff’s therapist. [ECF No. 31 at 4].
Pursuant to SSR 06-03p, an ALJ may use evidence from
“other sources” including therapists “to
show the severity of the individual’s impairment(s) and
how it affects the individual’s ability to
function.” SSR 06-03p, 2006 WL 2329939, at *2 (Aug.
9, 2006). The regulation also notes that opinions from
“medical sources who are not ‘acceptable medical
sources, ’ such as nurse practitioners, physician
assistants, and licensed clinical social workers, . . . are
important and should be evaluated on key issues such as
impairment severity and functional effects . . . .”
Id. at *3. In addition, 20 C.F.R. §
404.1527(f)(1) permits a therapist’s opinion to be
given greater weight than an AMS, on the basis of familiarity
with a patient, but only if “the opinion is more
consistent with the evidence as a whole.” 20 C.F.R.
§ 404.1527(f)(1). Here, the ALJ properly relied on
medical evidence from Ms. Madrid, including her treatment
notes, see [Tr. 25–27 (citing Exhibits 52F and
59F)], but did not rely on the LCHC-BH Report because it was
inconsistent with Plaintiff’s current medical records,
see [Tr. 28]; see also [ECF No. 32 at 2].
In so doing, the ALJ complied with SSR 06-03p. Accordingly,
following de novo review, the Court concludes that
there was no error and overrules this objection.
Dr. Morocco’s Report and Social Limitations in the
objects to the ALJ’s decision to omit social
limitations from the residual functional capacity
(“RFC”) determination. [ECF No. 31 at 5–6].
As she may, the ALJ gave “significant weight” to
the state agency psychological consultants both on initial
consideration and reconsideration. [Tr. 20–21]. In
their mental RFC assessments, which were issued on May 14,
2014 and November 11, 2014, the state agency psychological
consultants opined that Plaintiff had “no social
impairments, ” “no social interaction
limitations, ” and “no difficulties getting along
with others in past work.” [Tr. 365, 409–10]. The
ALJ relied on these opinions at step three when determining
that the “paragraph B” criteria were not
satisfied, a finding Plaintiff does not object to. [Tr. 21].
The ALJ also explained that her RFC assessment reflected her
conclusions from the “paragraph B” mental
function analysis. [Tr. 21–22].
raises a potential inconsistency between the lack of social
limitations in the RFC and the “great weight”
afforded by the ALJ to the opinion of Daniel Morocco, Ed.D.,
another state agency consultant. [ECF No. 31 at 6–7].
Unlike the reviewing state agency psychological consultants
on initial consideration and reconsideration, Dr. Morocco
opined on May 20, 2014 that Plaintiff “may have
difficulties relating to many different individuals.”
[Tr. 1099]. There was no error, however, because the ALJ only
gave “great weight” to Dr. Morocco’s
opinion to the extent that his report was consistent with the
record. [Tr. 27]. Dr. Morocco’s conclusion about
Plaintiff’s potential social limitations was not
consistent with the record, see [Tr. 20 (noting that
“the record at no time suggests that [Plaintiff]
exhibited any issues interacting normally with his various
medical providers and the record consistently documents [his]
reports of some range of social activities”)], and, as
such, was not required to be afforded great weight along with
the remainder of Dr. Morocco’s opinion. See SSR
96-6p, 1996 WL 374180, at *2 (July 2, 1996) (stating that an
ALJ may give weight to state agency consultant opinions
“only insofar as they are supported by evidence in the
case record”). To the extent that Plaintiff argues that
Dr. Morocco’s report was consistent with the LCHC-BH
Report, the Court has already overruled Plaintiff’s
objection regarding the ALJ’s decision to give
“little to no probative weight” to the LCHC-BH
Report. Therefore, the Court overrules this objection after
de novo review of the ALJ’s decision.
Reliance on State Agency Psychological Assessments
asserts that the ALJ’s reliance on state agency
psychological opinions that were written in June 2014 and
November 2014 was improper because the reviewing doctors did
not have the benefit of later treatment records from LCHC-BH,
which he claims included a diagnosis change in January 2016
from “major depression with psychosis” to
“schizoaffective disorder.” See [ECF No.
31 at 7–8]. Plaintiff argues that the newer evidence
from LCHC-BH “shows that [Plaintiff’s] mental