Maldonado v. Saul

          MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

         This is 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].

         I.BACKGROUND

         On 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].

         II. DISCUSSION

         In 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.

         A. Weight Afforded LCHC-BH Treatment Team Report

         Plaintiff 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^[2] (the “LCHC-BH Report”) was a treating source opinion.^[3] 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. See [id.].

         Second, 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.”^[4] 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.

         B. Dr. Morocco’s Report and Social Limitations in the RFC

         Plaintiff 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].

         Plaintiff 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.^[5] 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.

         C. Reliance on State Agency Psychological Assessments

         Plaintiff 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 ...