Murphy v. Colvin

Filing 22

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - the Commissioner's motion to affirm, D. 16, is ALLOWED and Murphy's motion to reverse and remand, D. 20, is DENIED.(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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THOMAS A. MURPHY, JR.,
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Plaintiff,
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v.
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CAROLYN COLVIN, Acting Commissioner,
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Social Security Administration,
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Defendant.
__________________________________________ )

Civil Action No. 13-10748-DJC

MEMORANDUM AND ORDER

CASPER, J.
I.

August 6, 2014

Introduction
Plaintiff Thomas A. Murphy, Jr. (“Murphy”) filed claims for disability insurance benefits

(“SSDI”) and supplemental security income (“SSI”). R. 13.1 Pursuant to the procedures set
forth in the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), Murphy now brings this action
for judicial review of the final decision of Carolyn Colvin, Acting Commissioner of the Social
Security Administration (“the Commissioner”), issued by an Administrative Law Judge (“ALJ”)
on March 21, 2012. R. 27. Before the Court are Murphy’s motion to reverse and remand, D. 16,
and the Commissioner’s motion to affirm the decision of the ALJ. D. 20. For the reasons
discussed below, the Commissioner’s decision is AFFIRMED.

1

Citations to the administrative record in this case, filed at D. 10, are referenced as “R.”
1

II.

Factual Background
Murphy was 26 years old when he ceased working on January 1, 2008. R. 13, 26. He

previously worked as a fire alarm tester, fire sprinkler fitter and installer, detailer for vehicles
and trucks, dishwasher, bagger, cashier and a donut shop baker. R. 25-26. In his May 22, 2009
and November 12, 2009 applications for SSDI and SSI, he alleged disability due to generalized
anxiety disorder, social phobia, agoraphobia with panic attacks and dysthymic disorder. R. 13,
16.
III.

Procedural Background
Murphy filed claims for SSDI and SSI, asserting that he had been unable to work as of

January 1, 2008. R. 13. The SSA denied the claims after initial review on March 16, 2010. Id.
The agency again denied his claims on October 28, 2010. Id. Pursuant to SSA regulations, on
January 3, 2011, Murphy filed a timely request for a hearing before an ALJ. Id. The hearing
was held on February 16, 2012. Id. Murphy and Peter Mazarro, a vocational expert (“VE”),
testified at the hearing. Id. In a written decision dated March 21, 2012, the ALJ ruled that
Murphy did not have a disability, as defined by the Social Security Act, and denied Murphy’s
claims. R. 27.
Although Murphy’s claims were selected for review by the Appeals Council (“AC”), the
AC did not complete a review of Murphy’s claim, as they found no reason under the rules to do
so. R. 1. Therefore, the ALJ’s decision is the final decision of the Commissioner. Id.
IV.

Discussion
A.

Legal Standards
1.

Entitlement to Disability Benefits and Social Security Income

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A claimant’s entitlement to SSDI and SSI turns on whether he has a “disability,” which is
defined in this context as an “inability to do any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or has lasted or can be expected to last for a continuous period of no less than twelve months.”
42 U.S.C. §§ 406(i), 423(d)(1)(a); 20 C.F.R. § 404.1505. The inability must be severe, rendering
the claimant unable to do any of his previous work or any other substantial gainful activity which
exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
The Commissioner must follow a five-step process when she determines whether an
individual has a disability, and, thus, whether that individual’s application for benefits will be
granted. 20 C.F.R. § 416.920. All five steps are applied to every applicant; the determination
may be concluded at any step along the process. Id. First, if the applicant is engaged in
substantial gainful work activity, then the application is denied. Id. Second, if the applicant does
not have or has not had within the relevant time period, a severe impairment or combination of
impairments, then the application is denied. Id. Third, if the impairment meets the condition for
one of the “listed” impairments in the Social Security regulations, then the application is granted.
Id. Fourth, if the applicant’s “residual functional capacity” (“RFC”) is such that he can still
perform past relevant work, then the application is denied. Id. Fifth, and finally, if the applicant,
given his RFC, education, work experience and age, is unable to do any other work, the
application is granted. Id.
2.

Standard of Review

The Commissioner’s role is to use her discretion to consider and weigh evidence and
make findings and credibility determinations. See Whitzel v. Astrue, 792 F. Supp. 2d 143, 148
(D. Mass. 2011). Under 42 U.S.C. § 405(g), the Courts must accept the factual findings of the

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Commissioner as conclusive “if supported by substantial evidence.”

42 U.S.C. § 405(g).

Substantial evidence may be found where “a reasonable mind reviewing the evidence in the
record as a whole, could accept it as adequate to support [the Commissioner’s] conclusion.”
Rodriguez v. Sec’y of Health and Human Servs., 647 F.2d 218, 222 (1st Cir. 1991). Further, the
reviewing Court must adhere to these findings “even if the record arguably could justify a
different conclusion, so long as it is supported by substantial evidence.” Whitzel, 792 F. Supp.
2d at 148 (citing Rodriguez Pagan v. Sec’y of Health and Human Servs., 819 F.2d 1, 3 (1st Cir.
1987)).
B.

Before the ALJ
1.

Medical History

Before the ALJ was extensive evidence about Murphy’s medical history, including
diagnosis and treatment, particularly in regard to the conditions upon which Murphy relied in
claiming a disability in his application for SSDI and SSI benefits.
On January 15, 2009, Dr. Ernst Manigat evaluated Murphy for a psychopharmalogical
assessment. R. 330. At this time, Murphy told Dr. Manigat that he had increased anxiety after
his job loss, could not go anywhere without his girlfriend and felt depressed due to his situation.
Id. Dr. Manigat noted that Murphy was anxious, his memory, attention and concentration were
intact and that he showed no sights of psychomotor depression. R. 331. Dr. Manigat diagnosed
him with social phobia and generalized anxiety disorder with a Global Assessment of
Functioning of (“GAF”) of 55,2 and prescribed Zoloft and Lorazepam. Id. Future visits showed
improvements in Murphy’s symptoms. R. 332-336.

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The GAF scale is used to report a clinician’s judgment of the individual’s overall level
of psychological, social, and occupational functioning. See American Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 32-33 (4th ed., text rev. 2000) (“DSM4

Upon Dr. Manigat’s relocation, Murphy started sessions with Diane Thomas, a licensed
mental health counselor, at Health and Education Services, Inc. on October 8, 2009. R. 340. He
was anxious, not well kept, had trouble sleeping and difficulty getting out of bed and the house.
R. 340-341. Here, Murphy was assigned a GAF of 48.3 R. 354. He was prescribed Ativan and
Buspar and at further sessions claimed to be doing better. R. 348-352. During this time, he also
met with Janine Post-Anderle, nurse practitioner, for medication management. R. 337-339.
During these visits, he seemed to be improving with medication and appeared to do well with
fewer people around him. Id. Murphy missed his next sessions with Thomas in December 2009,
and the treatment was terminated in February 2010. R. 353.
On October 12, 2010, Murphy had a consultative examination with Stanley Rusnak, Jr.,
Ed.D. R. 301. At this point, he was living and working at the Salvation Army Center and had
applied for disability benefits. R. 301. Murphy denied any recreational drug use, arrests and
prison and probation time. R. 302. Murphy claimed not to have taken his medication in five
months. Id. During his examination, his mood was stable but he seemed depressed. R. 303. He
had poor rapport and limited eye contact. R. 302-303. Rusnak felt that Murphy would benefit
from being back on his medication and assigned him a GAF of 50. R. 305.
On October 26, 2010, Judith Kellmer, Ph.D. completed a psychiatric review, finding that
Murphy had a mild restriction in activities of daily living, moderate difficulty in maintaining
social functioning, moderate difficulty maintaining concentration, persistence or pace and one or

IV”); Munson v. Barnhart, 217 F. Supp. 2d 162, 164 n. 2 (D. Me. 2002). GAF scores in the 5160 range indicates “[m]oderate symptoms . . . or moderate difficulty in social, occupational, or
school functioning. DSM-IV 34.
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A GAF of 41-50 is indicative of a “serious impairment in social, occupational or school
functioning.” DSM-IV 34; Amarai v. Commissioner of Social Sec., 797 F. Supp. 2d 154, 158 n.
1 (D. Mass. 2010).
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two episodes of decompensation. R. 321. She also found that he could work in a low stress,
predictable setting. R. 309.
On May 13, 2011, Murphy met with Dr. Robert Van Wittenberghe for a psychiatric
evaluation. R. 364. Upon examination, Dr. Van Wittenberghe felt that Murphy was primarily
interested in receiving social security benefits, rather than treatment. R. 365. Statements by
Murphy such as, “I cannot wait to get on disability,” R. 360, and statements claiming that
Murphy saw himself still receiving disability benefits five years from now, led Dr. Van
Wittenberghe to such conclusions. R. 361. Further, Dr. Van Wittenberghe was confused as to
why Murphy was unable to obtain employment, given Murphy’s pleasant demeanor, as well as
his ability to use public transportation to come to appointments. R. 357. Though Dr. Van
Wittenberghe diagnosed Murphy with social phobia, agoraphobia with panic attacks, chronic
depression and dysthymic disorder, with a GAF of 55-60, R. 364, he felt that disability benefits
would give Murphy no incentive to leave his home. R. 366. He continued Murphy on Ativan
and was puzzled that Murphy did not need a higher dosage, despite his claims of debilitating
anxiety. Id. Murphy also reported that the medication was working somewhat. R. 360. Dr. Van
Wittenberghe also prescribed Celexa. Id. During subsequent visits, Dr. Van Wittenberghe tried
to convince Murphy to engage in activities to improve his condition, R. 363, but Murphy spoke
only about receiving disability benefits. R. 360. Murphy also had no interest in returning to
work, did not like being around other people and preferred to stay at home and watch television.
Id.
Anita Nichols-Habib, a licensed mental health counselor, evaluated Murphy on July 6,
2011. R. 402. Murphy complained of “abuse and neglect” during childhood and symptoms of
anxiety and depression. R. 395. He also admitted to shoplifting and a history of alcohol and

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tobacco abuse. R. 397-398.

Nichols-Habib diagnosed Murphy with anxiety disorder NOS and

assigned him a GAF of 55-60. R. 401. Murphy also continued seeing Dr. Van Wittenberghe,
but reported to Nichols-Habib about being unhappy that Dr. Van Wittenberghe thought Murphy
only wanted disability and did not want to work. R. 414. In September 2011, Murphy started
seeing a clinical prescriber at Arbour Counseling. R. 417. Murphy reported symptoms of
anxiety, depression and panic. R. 418. He continued his dose of Ativan and Celexa and was
resistant to a dose increase. Id.
On November 14, 2011, Dr. Michael Perlman, a physician who had never treated
Murphy, completed questionnaires regarding Murphy’s medical condition. R. 422-430. Dr.
Perlman reported moderately severe to severe limitations in all areas of work-related functioning.
R. 423.

Dr. Perlman also concluded that Murphy had marked restrictions in daily living,

“maintaining social function” and “maintaining concentration, persistence or pace.”

R. 429.

He stated that Murphy claimed that although he had worked a variety of jobs in the past, he no
longer had this ability, given anxiety, past trauma and back pain. R. 424.
2.

ALJ Hearing

At the February 16, 2012 administrative hearing, the ALJ heard testimony from Murphy
and the VE. R. 35. Murphy testified that he last worked in shipping and receiving. R. 48. He
also testified that he could not continue working because he “couldn’t even function” or “think
straight at work anymore.” R. 48. Murphy reported that he was also unable to sit and stand for
too long due to his scoliosis, for which he had not sought treatment. R. 56-57. Murphy further
testified about his previous heroin and suboxone use. R. 58-59. He also discussed his daily
routine and his depressed and unmotivated mood.

R. 60-61.

Murphy testified about his

relationship with Dr. Van Wittenberghe and claimed that they had very different opinions about

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where his life was and should be headed. R. 53-54. Murphy found Dr. Van Wittenberghe’s
treatment was not sympathetic to Murphy’s condition or his need for disability benefits. Id.
The ALJ then asked the VE whether a person with the age, education and work
experience similar to Murphy, able to work at sedentary, light and medium exertional levels,
with minor interferences in concentration, could perform jobs with routine repetitive jobs and
other normal work functions up to and including semi-skilled work.

R. 72-73.

The VE

answered yes. R. 73-74. He testified that such a person could perform most of Murphy’s past
relevant work, except that of a fire alarm tester and sprinkler fitter, and he could perform other
work in the national economy including mail sorter, store’s laborer or commercial cleaner. R.
74-75. In response to a hypothetical question from Murphy’s attorney that involved a claimant
with certain moderate limitations that affected his ability to stay on task fifteen percent of the
time and required absences twice a month, the VE testified that such person would not be
employable. R. 75-77. The VE also testified that the same would be true if the same claimant
had an extreme limitation in his ability to handle customary work pressure. R. 76-77.
3.

Findings of the ALJ

Following the five-step process, 20 C.F.R. § 416.920, at step one, the ALJ found that
Murphy was not engaged in substantial gainful activity and had not been since January 1, 2008.
R. 15. At step two, the ALJ found that Murphy had a severe impairment, namely a history of
substance abuse. R. 16. At step three, the ALJ found that Murphy’s mental impairment did not
satisfy any of the listed impairments. R. 17. At the next step, ALJ found that Murphy had a
residual functional capacity to perform sedentary, light and medium work, except that he would
have occasional, minor interference in concentration, but is able to perform routine, repetitive
tasks and normal work functions, up to and including semi-skilled work. R. 17. The ALJ gave

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greatest weight to the records of Dr. Manigat, Thomas, Post-Anderle and Dr. Van Wittenberghe,
on the basis that their findings were consistent and they showed “that while the claimant had
some anxiety related complaints, he responded extremely well to medication.” R. 25. Further,
the ALJ considered the entire record to corroborate the intensity, persistence and effects of
Murphy’s reported symptoms with the objective medical evidence. See R. 24-25. The ALJ,
however, found that although the impairments could cause the symptoms reported by Murphy,
such self reports were not credible to the extent that they were inconsistent with the above
residual functional capacity assessment finding. R. 24-25. The ALJ also noted that Murphy had
downplayed his positive response to medication and had been less than forthcoming about his
history of heroin abuse. R. 24. Finally, at step five, the ALJ found that Murphy was capable of
performing past jobs, including those as a donut shop baker, bagger, cashier, dishwasher and
detailer. R. 25-26. Further, given the testimony of the VE, the claimant’s age, education, work
experience and residual functional capacity allowed Murphy to find other work that exists in
significant numbers in the national economy. R. 26.
C.

Murphy’s Challenges to the ALJ’s Findings

Murphy contends that the ALJ erred in crediting the medical records of Dr. Van
Wittenberghe, as that doctor allegedly failed to consider medical issues and inserted his personal
biases into his medical opinions. For the reasons discussed below, the Court concludes that the
ALJ did not err in assigning greater weight to the medical records of Dr. Van Wittenberghe, as
his findings are supported by objective medical evidence and are consistent with the findings of
other treating physicians.
“It is the responsibility of the [ALJ] to determine issues of credibility and to draw
inferences from the record evidence.” Irlanda Ortiz v. Sec’y of HHS, 955 F.2d 765, 769 (1st Cir.

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1991)(citation omitted). The ALJ’s findings are conclusive unless he has ignored evidence,
misapplied the law or judged medical matters that are best be left to experts. See, e.g., Nguyen
v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (remanding case where ALJ improperly rejected
records of treating physician leading to findings unsupported by substantial evidence). The
Court may also remand cases where the ALJ has provided insufficient explanations for his
findings or has failed to consider relevant evidence. See Seavey v. Barnhart, 276 F.3d 1, 12 (1st
Cir. 2001).
Here, the ALJ’s decision was supported by substantial evidence and that the ALJ
appropriately used his discretion in assigning weight to each medical opinion, taking into
account Murphy’s relationship to the examiner, the overall consistencies of the record and
findings supported by objective medical evidence. See R. 25-27; Evangelista v. Sec’y of Health
and Human Servs., 826 F.2d 136, 144 (1st Cir. 1987) (stating that the ALJ may “piece together
the relevant medical facts from the findings and opinions of multiple physicians”). Generally,
the ALJ should award “more weight” to opinions of treating physicians, “since these sources are
likely to be the medical professionals most likely to be able to provide a detailed, longitudinal
picture of [the] medical impairments.” 20 C.F.R. § 404.1527(c)(2). If such opinion is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and not
inconsistent with the other substantial evidence in [the] case record,” then it is given “controlling
weight.” Id.; Guyton v. Apfel, 20 F. Supp. 2d 156, 168 (D. Mass. 1998) (giving no controlling
weight given to physician’s report where its findings were not backed by medical evidence and
differed from those of other physicians); Berrios-Velez v. Barnhart, 402 F. Supp. 2d 386, 392
(D.P.R. 2005) (controlling weight not assigned to treating physician where findings differed

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from all physician’s reports which found that claimant to be in stable condition and had ability to
sit, stand and walk).
Murphy argues that “[t]he ALJ noted that Dr. Van Wittenberghe made some inconsistent
statements regarding the claimant.” D. 17 at 10. A closer look at the ALJ’s decision shows that
the ALJ found Dr. Van Wittenberghe’s findings were not inconsistent with the medical evidence
as a whole, including the treatment records of other doctors, but such was not the case with Dr.
Perlman’s opinions. R. 25; 396-398. The ALJ requested an additional opinion for clarification
from Dr. Van Wittenberghe, but Murphy’s lawyer was hesitant, claiming that because Dr. Van
Wittenberghe had a disability himself (mobile only with wheelchair) he was biased against
Murphy’s inability to find work despite his disability. R. 38-41; see R. 51-54, 65-68.
The ALJ, thereafter, awarded greater weight to the treatment records of Dr. Van
Wittenberghe, among others, including, Dr. Manigat, Thomas and Post-Anderle. R. 25. The
ALJ considered, but rejected Murphy’s argument that Dr. Van Wittenberghe was biased against
his application for disability. Id. The ALJ found that the records of Dr. Van Wittenberghe were
consistent with these other treating sources. Id. The ALJ assigned less weight to the records of
Nichols-Habib, Schwartz, Dr. Perlman and Kellmer, as these other sources has less opportunity
to treat Murphy or provided little medical support for their findings. Id. Specifically reflected in
the records of other treating sources, Dr. Van Wittenberghe determined that although Murphy
was suffering from social phobia, agoraphobia with panic attacks and dysthymic disorder, he
responded very positively to medication. R. 366. With medication, his ability to function and
work was only slightly limited. Id. Similarly, Dr. Manigat found that with medication, Murphy
showed marked signs of improvement and was able to walk the dog, leave the house and talk to
his friends. R. 332-336. His GAF assessment of 55 reflected that Murphy would only be

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moderately impaired in social, occupational or school related functioning. R. 331. Likewise,
Thomas’s and Post-Anderle’s records show that Murphy showed improvements with medication.
R. 337-338, 348-352.
The findings of Dr. Perlman, Nichols-Habib, Schwartz and Kellmer pointed to different
functioning levels than those assessed by the sources discussed above. R. 309, 394-401, 425433. Although Nichols Habib assigned a GAF of 55 to Murphy, in her questionnaire, she noted
moderately severe to severe limitations, giving no explanation for these conclusions. R. 401.
Over the course of treatment, she also indicated no decline in Murphy’s ability to function. R.
395-397. The reports of Dr. Perlman were given less weight because he had no opportunity to
observe and treat Murphy, R. 37, and the ALJ concluded that he likely conducted an evaluation
based on the treatment notes of Nichols-Habib and Schwartz. R. 25. Dr. Perlman reported a
level of limitation in living and work-related functioning that was unsupported by the other
reports or an objective analysis of Murphy’s medical conditions. R. 422-429. Finally, Kellmer
based her findings on Murphy’s functioning without medication. R. 25; 323. She too had little
opportunity to treat and observe Murphy. Id.
Murphy relies on Coggon v. Barnhart, 354 F. Supp. 2d 40 (D. Mass. 2005) to support his
argument that Dr. Van Wittenberghe’s “predisposition for advocating against the claimant”
should completely discount his opinions. D. 17 at 2. However Coggon does not support his
conclusion. See Coggon, 354 F. Supp. 2d at 54 (concluding that where a medical opinion
advocates a certain position with no objective analysis, the ALJ may give less weight to that
record). In Coggon, the claimant was diagnosed with rheumatoid arthritis, but she was able to
drive and was found to be capable of dressing, grooming and light chores. Id. at 44-45. The
treating physician’s findings on Coggon’s condition were vague, inconsistent (with themselves

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and those of other physicians) and void of adequate support in the medical records. Id. at 53.
Among other things, she was unable to quantify Coggon’s degree of limitation or state why
Coggon would be absent from work. See id. Further, the physician found that Coggon was
bedridden, even though she said the claimant was able to live alone and drive. Id. at 54. Given
such inconsistencies, the court held that the ALJ had correctly concluded that the record as a
whole pointed to a higher level of functioning by the claimant than did this doctor’s opinions.
Id.

By contrast in the instant case, there was ample basis in the record for Dr. Van

Wittenberghe’s opinions, which were also consistent with reached with those of other treating
physicians. Moreover, Dr. Wittenberghe’s medical records appropriately reflect questioning the
veracity of Murphy’s reports of his symptoms and medical history for the purposes of reaching a
sound medical opinion as opposed to advocacy of a particular position about his claimed
disability. Unlike the physician in Coggon, there was ample support in the record for this
doctor’s medical opinions and the ALJ did not err in relying on them, in part, in reaching his
decision in this case.
V.

Conclusion
Based on the foregoing, the Commissioner’s motion to affirm, D. 16, is ALLOWED and

Murphy’s motion to reverse and remand, D. 20, is DENIED.
So ordered.
/s/ Denise J. Casper
United States District Judge

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