Lopez v. Colvin

Filing 26

Magistrate Judge M. Page Kelley: ORDER entered. MEMORANDUM AND ORDER: "For all the reasons stated, it is ORDERED that the Plaintiff's Motion for Order Reversing Decision of the Commissioner (# 16 ) be, and the same hereby is, ALLOWED, and that Defendant's Motion to Affirm the Commissioner's Decision (# 24 ) be, and the same hereby is, DENIED. It is FURTHER ORDERED that the decision of the ALJ is VACATED, and the matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion." (Moore, Kellyann)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

NITZA LOPEZ-LOPEZ,
Plaintiff,

v.

CIVIL ACTION NO. 14-10063-MPK1

CAROLYN COLVIN, ACTING
COMMISSIONER OF THE
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR ORDER
REVERSING DECISION OF THE COMMISSIONER (#16) AND
DEFENDANT’S MOTION TO AFFIRM THE COMMISSIONER’S DECISION (#24).
KELLEY, U.S.M.J.
I. INTRODUCTION
Plaintiff Nitza Lopez-Lopez seeks reversal of the decision of Defendant Carolyn Colvin,
Acting Commissioner of the Social Security Administration (“SSA”), denying her Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (#16.) Defendant moves for
an Order affirming the Commissioner’s decision. (#24.) With the administrative record having been
filed and the issues fully briefed (#16-1, #25), the cross motions stand ready for decision.

1

With the parties’ consent, this case was reassigned to the undersigned for all purposes, including trial and the
entry of judgment, pursuant to 28 U.S.C. § 636(c). (##20-23.)

II. BACKGROUND
A. Procedural History
Lopez applied for DIB and SSI on December 21, 2011. (TR2 at 181-91.) She initially alleged
that she became disabled on October 31, 2009, due to major depression with psychotic features and
high blood pressure. (TR at 202.) She subsequently changed her onset of disability date to November
1, 2011. (TR at 28, 279.) Her applications were denied initially and upon reconsideration. (TR at 55102.)
On July 2, 2013, a hearing was held before administrative law judge (“ALJ”) Sean Teehan.
(TR at 26.) At the hearing, Judge Teehan heard testimony from Lopez, who was sometimes assisted
by a Spanish-English language interpreter, and Dr. James Cohen, Ph.D., a vocational expert. (TR
at 16, 26-54.) On July 26, 2013, the ALJ issued an unfavorable decision. (TR at 13-25.) On
November 12, 2013, the Appeals Council denied Lopez’s request for review. (TR at 1-6.) With that,
the ALJ’s decision became final. See Tefera v. Colvin, 61 F. Supp. 3d 207, 2011 (D. Mass. 2014).
On January 9, 2014, having exhausted her administrative remedies, Lopez filed this action
for review pursuant to 42 U.S.C. § 405(g). (#1.)
B. Factual History
At the time of the administrative hearing, Lopez was fifty-two years old. (TR at 31.) She had
been living in a shelter for the past eight months since moving out of her daughter’s house. (TR at
38.) Lopez graduated from high school,3 and also received training to be a receptionist. (TR at 31-

2

The designation “TR” refers to the Social Security administrative record.
3

In some parts of the record, it is reported that Lopez only completed school through the fourth grade. (See, e.g.,
TR at 297.)

2

32.) Lopez had past relevant work experience as a receptionist, an accounting clerk, a sewing
machine operator, and a customer service clerk. (TR at 32-35, 51.)
1. Medical Records
In this action, Plaintiff argues that the ALJ erred by failing properly to evaluate her mental
impairments. (#16-1 at 5-7; TR at 30.) As a result, the Court need only focus on Lopez’s mental
health history.
Lopez’s relevant medical history begins on December 8, 2009, when she went to the First
Hospital Panamericano in her then-home of Puerto Rico complaining of “exacerbation of depressive
symptoms -- audiovisual hallucinations, poor judgment, poor control, [and] agitation.” (TR at 286.)
She was admitted for “stabilization.” (Id.) At the hospital, Lopez was treated with medications and
individual and group therapy. (Id.) Lopez was discharged on December 16, 2009. (TR at 286-87.)
At that time, she was tolerating her medications, and had responded appropriately to therapy. (TR
at 286.) Upon discharge, Lopez was found to be alert and fully oriented; she had logical, coherent,
and relevant thoughts; she maintained good hygiene and personal care; she had a euthymic mood
and congruent affect; and she denied hallucinations, delirium, and suicidal/homicidal ideation. (TR
at 287.) Lopez was diagnosed as suffering from “major depressive disorder, severe, recurrent, with
psychosis”; “acute stressors: problems with her son, economical problems”; “long-term stressors:
poor stress management skills”; and a Global Assessment of Functioning (“GAF”) score of 60.4 (Id.)
She was prescribed medication, and it was recommended that she follow up with a psychiatrist. (Id.)
4

The Global Assessment of Functioning (“GAF”) scale is used to rate a patient’s “overall psychological
functioning.” American Psychiatric Institute, Diagnostic & Statistical Manual of Mental Disorders (“DSM–IV”) 32 (4th
ed.1994). The scale goes from “1,” indicating that the patient has a “persistent danger of severely hurting self or others,”
to “100,” indicating “superior functioning.” Id. A score in the range of 51–60 indicates “[m]oderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers).” Id. at 34.

3

On October 20, 2011, Plaintiff went to Bowdoin Street Health Center in Dorchester,
Massachusetts, where she was seen by Janet Lincoln, a nurse practitioner. (TR at 349-50, 375.)
Lincoln noted Plaintiff’s “long extensive psyche history, including auditory hallucinations telling
her to hurt herself and two attempts at suicide by medication overdose.” (TR at 349.) She reported
that Lopez denied current suicidal or homicidal thoughts. (Id.) Lincoln assessed that Lopez suffered
from “depression/psychosis,” as well as headaches which might be related to her psychiatric
medications. (TR at 350-51.)
On October 26, 2011, Lopez was seen in Bowdoin’s psychiatric division by Amy Brow, a
licensed social worker. (Id.) Lopez reported to Brow “current depressed mood, poor sleep and
appetite, fatigue, lack of motivation, and tearfulness,” but no hallucinations or suicidal or homicidal
thoughts. (Id.) Lopez also reported a significant family history of mental illness, including her
mother and siblings who suffered from depression and a sister who has schizophrenia. (Id.) Brow
diagnosed Lopez with “Major Depressive Disorder.” (TR at 352.)
On November 1, 2011, Plaintiff underwent a psychiatric evaluation by Dr. Gabrielle
Goldberger. (TR at 387-88.) Dr. Goldberger noted Plaintiff’s history of major depressive disorder
with psychotic features, hospitalizations, and suicidal thoughts. (TR at 387.) She also cited Lopez’s
childhood abuse, witnessing of her mother’s abuse, and Lopez’s abuse by her long-separated
husband. (Id.) Lopez denied current psychotic symptoms and suicidal or homicidal thoughts. (Id.)
Dr. Goldberger found that Lopez had good hygiene, was cooperative and spoke easily, had normal
movement and good eye contact, appeared with a sad affect but responded to humor, was of average
intelligence, had fair insight and judgment, and suffered from no gross neurological deficits. (Id.)
Dr. Goldberger diagnosed Lopez as suffering from major depressive disorder, recurrent, moderate

4

to severe, with a history of psychotic features. (Id.) Plaintiff returned to Dr. Goldberger later that
month. (TR at 354.) The doctor found that Plaintiff’s mental status was “appropriate, coherent but
also different from last visit,” and that she seemed “slowed/sedated, [or possibly] overmedicated but
does not report feeling any different from before.” (Id.) Dr. Goldberger referred Plaintiff for “higher
level care.” (Id.)
On November 14, 2011, Lopez was seen again by Brow. (TR at 253.) Brow stated that Lopez
“[p]resents with significant level of depression and functional impairment.” (Id.) Brow referred
Lopez to a partial hospitalization program. (Id.)
From December 2 to December 19, 2011, Lopez participated in a partial hospitalization
program in the Arbour Health System. (TR at 291-305.) She was treated by Dr. Anmir Agresar. (TR
at 291.) Lopez’s chief complaints were, “I feel so anxious and sad.” (Id.) She reported that her move
to Boston had lead to increased depression, anxiety, panic attacks, and paranoia. (TR at 302.) Lopez
stated that she had previously been hospitalized four times, most recently in 2009. (TR at 292, 29596, 302.) She also stated that she had attempted suicide twice by prescription drug overdose in 2004
and 2009, but denied current suicidal thoughts or drug use.5 (Id.) It was determined that Lopez had
only a limited understanding of her mental illness, but that her reliability as an informant about her
symptoms was good. (TR at 297, 628.) Lopez also claimed to be in current compliance with her
medication regimen. (TR at 292.) Based on these circumstances, and her history of major depression,
Lopez was considered to be a “moderate” risk for suicide. (TR at 298.) Lopez also reported
difficulty with concentration, information retention, sleep, and anxiety. (Id.) Dr. Agresar diagnosed

5

Medical records from her hospitalization in 2004 indicate that Lopez had been previously hospitalized “after
presenting ... suicidal structured ideas to lacerate and self-mutilate her body, together with auditory hallucinations
commanding her to harm herself.” (TR at 532.)

5

her with major depressive disorder, recurrent, severe without psychotic features, and assessed her
GAF as 40.6 (TR at 301-02.) At discharge, he recommended that Lopez continue with medication
and therapy. (TR at 302-03.)
After her discharge, Lopez began outpatient therapy with Francisco Matorras, M.A., who
had treated her in the program. (TR at 324, 340-42, 346-47.) Lopez told Matorras that she was
suffering from chronic depression which she attributed to her recent move to Boston from Puerto
Rico, where she left family behind. (TR at 340.) She also showed symptoms of post-traumatic stress
disorder (“PTSD”) stemming from “[e]motional abuse and domestic violence experience and
community violence related experiences,” including “actual or threatened death or serious injury”
by her father or husband, which “lead her to feel afraid, hopeless and depressed.” (TR at 340-41.)
Lopez also suffered from “excessive worrying,” social withdrawal and isolation, sleep problems,
noticeable fatigue, concentration problems, and “suicidal ideas.” (TR at 324, 340.) Matorras noted
that Lopez “has been hospitalized on a number of occasions,” during which “[s]uicidal or self
injurious behaviors were present.” (TR at 340.) He diagnosed Plaintiff with major depressive
disorder, recurrent, severe without psychotic features, and rated her GAF at 52. (TR at 346.) He
changed his diagnosis in his typewritten report to major depressive disorder, recurrent, moderate and
PTSD. (TR at 341.) Matorras noted that Lopez’s “[c]ognitive decline is a barrier to treatment
success.” (Id.) On December 29, 2011, Lopez denied “all psychiatric symptoms,” but reported
increased difficulty concentrating and thinking. (TR at 343.)
On January 3, 2012, Lopez returned to Bowdoin Street Health Clinic for a follow-up visit,
6

A GAF score in the 31–40 range “indicates [s]ome impairment in reality testing or communication ... [or] major
impairment in reality testing or communication ... [or] major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood.” DSM-IV at 32.

6

and she told Lincoln that she was “feeling much better.” (TR at 355.) Lopez denied having any
symptoms of depression or anxiety. (Id.) Lincoln reported that Lopez was alert, easily engaged, and
smiled frequently. (Id.)
On January 5, 2012, Matorras reported that Lopez felt “anxious and with low energy,” and
was having trouble sleeping, but he found “no serious mental status abnormalities.” (TR at 339.)
On January 12, 2012, Matorras found her to be stable with no serious mental status abnormalities.
(TR at 338.) During a January 26, 2012, appointment, Lopez “denied any anxiety symptoms,” and
stated that she was feeling happier because she was applying for independent housing, which would
relieve some of the negative feelings she was having living with her daughter. (TR at 335.)
However, she also reported sleep problems, excessive fatigue, memory problems, decreased
sociability, sadness, and feelings of worthlessness. (Id.) Matorras reported that she was compliant
with her medication regimen. (Id.) He diagnosed her with major depressive disorder, recurrent,
moderate and PTSD. (Id.)
On January 31, 2012, Lopez returned to Lincoln for her yearly physical examination. (TR
at 370.) Lincoln wrote that Lopez’s depression was “[c]urrently stable,” and that she was “smiling
and pleasant, engaging in her healthcare.” (TR at 371.) Lincoln counseled Lopez to continue taking
her medications even if she felt better, “as that is what the medications are supposed to do.” (Id.)
On February 8, 2012, Lopez had her first session with a group therapist, and soon after
started therapy in a women’s support group with Rebecca Abboud at Arbour Counseling. (TR at
331.) At a regular therapy appointment on February 9, 2012, Matorras wrote that Lopez was “feeling
sad,” was having difficulty with activities of daily living, and was dependent on her daughter. (TR
at 330.) At the appointment, Matorras observed no signs of anxiety and found her memory and

7

orientation to be appropriate, but observed that Lopez had difficulty making decisions. (Id.) He
diagnosed her with major depressive disorder, recurrent, moderate and PTSD. (Id.) On February 23,
2012, Lopez told Matorras that she had been sleeping well, was motivated to move to new housing,
and was having a better relationship with her daughter and grandchildren. (TR at 323.)
On March 13, 2012, following an appointment, Dr. Goldberger sent Lopez to the emergency
room at Beth Israel Deaconess Medical Center for a psychiatric evaluation because of a “concern
for dissociation & anxiety,” mental disorganization, and shakiness. (TR at 365-67.) Lopez was
initially evaluated by Dr. Richard Klasco, who ruled out toxic or metabolic causes of her current
mental status, and gave her provisional diagnoses of anxiety, depression, and psychosis. (TR at 367.)
She was discharged the same day, with instructions from Dr. Louisa Canham to follow up with her
therapist. (TR at 365.)
On March 14, 2012, Plaintiff followed-up with Matorras, and reported increasing levels
anxiety and depression. (TR at 321.) Matorras observed that “[a]nxiety symptoms are present,”
“[s]leep problems have worsened,” “[t]rembling and shaking associated with anxiety has worsened,”
and “[h]ypervigilance is still occurring.” (Id.) He noted that Lopez was taking her medication
regularly. (Id.) On April 4, 2012, Matorras found that Lopez’s depressive episodes had worsened
and become more frequent and intense; that her feelings of worthlessness continued; and that her
difficulty sleeping had led to excessive fatigue. (TR at 318-19.) He commented that she had made
no progress toward her therapeutic goals. (Id.) Matorras had her complete a Zung Depression Scale
survey, on which Lopez “scored Severe Depression.” (TR at 318.) He diagnosed her with major
depressive disorder, recurrent, moderate and PTSD. (Id.)
On April 12, 2012, Matorras reported that Lopez’s “symptoms have lessened in frequency

8

or intensity,” although they were still present. (TR at 316.) On May 4, 2012, Matorras noted that
Lopez’s anxiety level had increased in frequency and intensity, and had resulted in motor
restlessness and confusion. (TR at 313.) He also reported that Lopez continued to suffer from
depression, that she had increasing difficulty with decision-making, and that her condition was
getting worse overall. (TR at 313-14.) He reported that Lopez was having difficulty with her
daughter and had moved out, and was currently living with a niece. (TR at 456-57.)
On May 17, 2012, Matorras found that Lopez’s anxiety, depression, and concentration
difficulties continued, but that she was less “sad,” and was having “less difficulty making decisions.”
(TR at 310.) She continued to be anxious about her problems with her daughter, her financial
situation, and the uncertainty of housing. (Id.) Matorras also counseled Plaintiff on her “lack of
attendance to the sessions.” (Id.) Matorras stated that her “medication compliance is good.” (Id.) On
May 25, 2012, Matorras noted that Plaintiff’s “[b]ehavior has been stable and uneventful and
medication compliance is good,” but that her symptoms of depression and anxiety had not changed.
(TR at 306.) He wrote that Lopez was having difficulty sleeping, had poor appetite, and was anxious
at night. (Id.) He diagnosed her with major depressive disorder, recurrent, moderate, and PTSD. (Id.)
On June 7, 2012, Dr. Goldberger examined her. (TR at 383.) The doctor reported that Lopez
was sad and had slow speech, but was “overall appropriate, coherent, [and] well kempt.” (Id.) Lopez
denied mood changes, suicidal or homicidal thoughts, and auditory or visual hallucinations. (Id.)
Lopez reported having been off of her medication for a week because she could not afford it, and
Dr. Goldberger discussed options for her, including pharmacies that will defer co-pays. (Id.) Dr.
Goldberger continued her on medications, but reduced the strength of the Paxil prescription because
Lopez reported “too much sedation.” (Id.)

9

On June 19, 2012, Dr. Byron Garcia, a psychiatrist, examined Lopez. (TR at 468-70.) She
“present[ed] with depressive and PTSD symptoms.” (TR at 469.) Dr. Garcia noted “no gross
abnormalities” in her mental status. (Id.) Dr. Garcia diagnosed Lopez with major depressive
disorder, recurrent, moderate and PTSD, and gave her a GAF score of 50.7 (Id.)
On June 22, 2012, Matorras rated Lopez’s current risk of suicide as “very low or absent.”
(TR at 471.) Over the next two months, Matorras continued to rate Plaintiff’s GAF as 50. (TR at
428, 471, 474, 475, 478, 480.) On August 8, 2012, Matorras noted that Lopez’s anxiety was “an
active problem in need of treatment,” and that it “primarily manifested by: panic attacks--which
occur more frequently in certain situations.” (TR at 853.) On August 17, 2012, Lopez reported
improving anxiety symptoms, but daily depressive symptoms, difficulty making decisions, excessive
worrying, excessive fatigue, and social difficulties. (TR at 716.)
On August 31, 2012, Matorras found that Plaintiff’s symptoms had worsened, that she was
experiencing auditory hallucinations, and that her risk of suicide was “medium.” (TR at 481.) He
sent her to the Arbour Health System for treatment and hospitalization, where she stayed until
September 12, 2012. (TR at 678, 691.) At the hospital, Lopez was treated by Dr. Agresar. (TR at
676.) Lopez reported increased psychiatric symptoms due to personal stressors, problems sleeping,
and hearing voices calling her name. (Id.) She also claimed to have “passive” suicidal thoughts of
“not having desire to live” approximately once per day. (TR at 682, 685.) Dr. Agresar diagnosed
her with major depressive disorder, recurrent, severe with psychotic features and PTSD, and gave
her a GAF score of 38. (TR at 680-81, 690.) He also opined that Lopez “seems to be exaggerating

7

A GAF score of 41–50 indicates “serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR moderate difficulty in social, occupational, or school functioning (e.g., no friends, unable to keep a job).”
Id. at 34.

10

symptoms as she presents more anxious individually than seen out in brakes [sic] when she is in the
program.” (TR at 678, 690-91.) Dr. Agresar also reported that “only a few medication[s] were
started given her non-compliance [history],” and that after a few sessions, she “stopped showing up”
for group therapy. (TR at 678.) Upon discharge, Lopez was noted to be depressed and mildly
anxious, with impaired concentration, but to have normal speech and thought processes; no signs
of psychosis; intact memory, abstract reasoning, and executive functioning; fair judgment; and no
suicidality. (TR at 679.) Dr. Agresar prescribed medication and continued therapy. (TR at 700.)
On September 12, 2012, Lopez requested an emergency session with Matorras because she
was experiencing high anxiety, overdose of anxiety medication, and dizziness and concentration
problems, likely prompted by an argument with her daughter and a need for new housing. (TR at
484.) At the appointment, she told Matorras that her anxiety, confusion, concentration problems,
insomnia, depression, worrying, and fatigue were worsening overall. (Id.) Matorras gave her advice
on her housing situation. (Id.) He rated her GAF at 50. (TR at 485.)
On September 15, 2012, Dr. Garcia examined Plaintiff and noted “no serious mental
abnormalities,” and that “[n]either depression nor mood elevation is evident.” (TR at 487.) He rated
her risk of suicide as “low.” (Id.) Dr. Garcia gave her a GAF score of 50. (Id.)
On September 24, 2012, Matorras reported that Lopez’s depressive symptoms continued but
had lessened in frequency and intensity, as she had been staying alternately at a women’s shelter and
with her sister. (TR at 489.) He gave her a GAF score of 50. (Id.) On October 12, 2012, Matorras
noted that Lopez’s anxiety had improved, and that she had not reported depressive symptoms. (TR
at 491.) He again gave her a GAF score of 50. (Id.) At an appointment on November 6, 2012,
Matorras noted that Lopez’s anxiety had increased, and that she had recently gone to the emergency

11

room after suffering from a panic attack. (TR at 885-86.) Through the rest of November, Lopez
reported improving depression and anxiety, and Matorras continued to rate her GAF as 50. (TR at
432, 437, 478.)
On November 10, 2012, Lopez was examined by Dr. Garcia. (TR at 496.) Dr. Garcia
reported that Lopez “appears glum, minimally communicative, tense, casually groomed, and tense,”
and showed “signs of anxiety.” (Id.) He prescribed medication. (Id.) On December 8, 2012, Dr.
Garcia again examined Lopez. (TR at 508.) Lopez reported severe anxiety, and Dr. Garcia noted that
she had an “[a]nxious mood and affect” and “chronic maladaptive behaviors.” (Id.) At both
appointments, Dr. Garcia rated her GAF as 50. (TR at 496, 508.)
On December 11, 2012, Matorras found that Plaintiff’s depressive symptoms had worsened
and were more intense. (TR at 510.) Lopez reported a recent panic attack as well as “hearing voices
that call[] her at night.” (Id.) Matorras found that Lopez had a “medium” risk of suicide, exacerbated
by “[a] major depression”; “feelings of hopelessness, worthlessness, or guilt”; and a weakening of
her support system. (Id.) Matorras gave her a GAF score of 50. (Id.) On December 21, 2012,
Matorras reported that Lopez had a “depressed mood” and anxiety, and rated her GAF as 50. (TR
at 442.)
From December 24, 2012, through January 10, 2013, Plaintiff attended a treatment and
partial hospitalization program in the Arbour Health System. (TR at 746-47.) On admission, she
complained of increased panic attacks accompanied by heart palpitations, chest pain, shortness of
breath, sweating, and trembling in one leg. (Id.) Lopez reported that she was experiencing similar
symptoms once or twice per week, but that Ativan had helped. (Id.) She told Dr. Catalina Melo, the
attending psychiatrist, that she does not always take her medication, but might take it only “when

12

she is not feeling well.” (Id.) A mental status examination revealed a “clearly anxious” affect and
poor insight, but no other mental deficits. (TR at 748-49.) Dr. Melo diagnosed her with “[a]nxiety
NOS, r/o panic disorder,” instructed her to take medication as prescribed, and recommended that
she follow up with Dr. Garcia. (TR at 748.)
On January 10, 2013, Matorras referred Lopez for hospital admission due to increased
depression and anxiety with psychotic symptoms. (TR at 753.) Lopez described having recent,
worsened anxiety attacks, hearing voices calling her name, and seeing shadows. (Id.) Dr. Agresar
examined her and found her to have a depressed affect and mood, general anxiety, impaired
concentration, and fair judgment, and to be at “moderate” risk for suicide. (TR at 753-54, 781.) He
diagnosed her as suffering from major depressive disorder, recurrent, severe with psychotic features
and anxiety disorder NOS, and rated her GAF as 38. (TR at 755.) Dr. Agresar prescribed a change
in medication and continued therapy. (TR at 753-55.) Lopez left the hospital before she could be
formally discharged.8 (TR at 754-55, 785.)
On January 26, 2013, Lopez was evaluated by Dr. Garcia. (TR at 515-17.) She reported
anxiety as well as three to four panic attacks per week, each lasting forty-five minutes to an hour.
(TR at 515.) She described the panic attacks as “[a] sensation of impending doom, increased heart
rate, body tremor and shortness of breath.” (TR at 515.) Lopez also claimed to experience “vague
auditory hallucinations,” such as “[a] voice calling [her] name.” (Id.) Dr. Garcia diagnosed her with
major depressive disorder, recurrent, moderate and PTSD, and gave her a GAF score of 50. (TR at
515-16.)

8

The record shows that Plaintiff failed to show or cancelled many appointments with mental health providers.
(See, e.g., TR at 312, 320, 329, 459, 483, 525, 712, 887.)

13

On January 31, 2013, Lopez told Matorras that she had been experiencing worsened anxiety
and continuing panic attacks, but she denied suicidal thoughts or psychosis. (TR at 518.) She also
denied symptoms of depression. (Id.) Matorras gave her a GAF score of 50. (TR at 519.)
On February 15, 2013, Dr. Garcia examined Lopez, and found that she was “stable and doing
fine,” “denie[d] feeling anxious or depressed,” and had no manic or psychotic symptoms. (TR at
840.) He gave her a GAF of 50. (Id.)
On February 26, 2013, Lopez told Matorras that she felt less anxious and depressed. (TR at
526.) She stated that a new medication was helping her. (Id.) Matorras found that Lopez was still
suffering from depression and anxiety. (Id.) On March 12, 2013, Lopez reported feeling anxious and
depressed. (TR at 528.) She described dizziness, chest pain, trouble breathing, panic attacks,
sadness, difficulty thinking and concentrating, and decreased sociability. (Id.) He rated her GAF at
50. (TR at 529.) On April 4, 2013, Plaintiff reported feeling depressed and anxious, which she
attributed to the fact that she had been homeless for more than seven months, and the fact that her
grandchild was removed from her daughter’s home. (TR at 824.) Lopez described feelings of
disorientation, memory and concentration problems, trouble sleeping, and occasional panic attacks.
(Id.) Approximately one week later, Matorras found Lopez to be “upbeat and future oriented,” with
no signs or symptoms of anxiety or depression. (TR at 822.) Lopez returned on April 25, 2013,
complaining of anxiety and depression which she attributed to her unresolved housing situation as
well as lingering fear from the recent Boston Marathon bombing. (TR at 819, 821.) On May 9, 2013,
Plaintiff reported that she was feeling better, but still had feelings of anxiety and depression. (TR
at 817.) On May 28, 2013, Lopez reported that she had been feeling anxious, particularly when she
is around “too many people or when she is on the train.” (TR at 814.) On June 11, 2013, Lopez

14

reported that she felt depressed, and that she was suffering from weekly panic attacks, likely due to
her housing situation and financial problems. (TR at 812.) Matorras gave her a GAF score of 50.
(TR at 813.)
2. Medical Opinions
On January 31, 2012, Dr. Carol McKenna, a psychologist, evaluated Lopez’s condition and
residual functional capacity (“RFC”)9 based on the medical records on behalf of the state. (TR at 60.)
Dr. McKenna reported that Lopez had symptoms of depression, which had resulted in a mild
restriction of activities of daily living; mild problems maintaining social functions; moderate
restrictions in maintaining concentration, persistence, or pace; and one-to-two episodes of
decompensation. (TR at 60-61, 70-71.) Dr. McKenna stated that, with appropriate treatment, Lopez
could sustain attention and concentration in two-hour increments during a full work week, and adapt
to typical workplace changes after a brief period of adjustment. (TR at 61-63, 71-73.) On July 18,
2012, Lisa Fitzpatrick, Psy.D., reviewed and concurred with Dr. McKenna’s findings. (TR at 83-86,
95-98.)
On September 21, 2012, Matorras completed a Mental Impairment Questionnaire for
purposes of Plaintiff’s applications for disability benefits. (TR at 398-401.) Matorras reported that
Lopez suffers from the following: depression and anxiety; poor memory, appetite, and sleep
patterns; mood disturbance; emotional lability; anhedonia; feelings of guilt/worthlessness; difficulty
thinking or concentrating; “[o]ddities of thought, perception, speech, or behavior”; time or place

9

A Social Security claimant’s residual functional capacity is “an assessment of an individual’s ability to do
sustained work-related physical and mental activities in a work setting on a regular continuing basis,” despite mental
and physical limitations. Social Security Ruling (SSR) 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996); see 20
C.F.R. §§ 416.920(e), 416.945, 404.1545(a)(1).

15

distortion; social withdrawal or isolation; blunt or inappropriate affect; decreased energy; and
pathological dependence or passivity. (TR at 398.) Matorras found that Plaintiff’s mental condition
caused marked limitations with regard to activities of daily living; maintaining social functioning;
and concentration, persistence or pace (“resulting in failure to complete tasks in a timely manner”).
(TR at 400.) He also reported that Plaintiff had experienced “three or more” episodes of
decompensation in work or work-like settings in a one-year period. (Id.) Matorras stated that
Lopez’s impairments were consistent with the symptoms and limitations noted in the evaluation.
(TR at 399.) He also stated that Lopez’s symptoms could be expected to last for at least twelve
months. (Id.) On March 12, 2013, Matorras updated his answers to include a new list of Lopez’s
medications, and both he and Dr. Garcia signed the questionnaire, adopting Matorras’s findings. (TR
at 809-11.)
On November 9, 2012, Dr. Raman Gill Chahal, a state agency psychiatrist, completed a case
analysis, RFC assessment, and Psychiatric Review Technique form (“PRTF”) based on his review
of the medical record. (TR at 403-22.) Dr. Chahal found that Lopez suffered from major depressive
disorder, recurrent, at a level that qualifies as a “severe impairment” but “not of listing level.” (TR
at 404.) In the PRTF, Dr. Chahal considered only Listing 12.04, for affective disorders. (TR at 405.)
He found that Plaintiff’s depression caused only a mild restriction of her activities of daily living
and moderate difficulties in maintaining social functioning and in maintaining concentration,
persistence, or pace. (TR at 415.) He also determined that Lopez had experienced only one or two
“[e]pisodes of decompensation, each of extended duration.” (Id.) In his Mental RFC assessment, Dr.
Chahal found Lopez to be only moderately limited in her ability to understand, remember, and carry
out detailed instructions; to “maintain attention and concentration for extended periods”; to “perform

16

activities within a schedule, maintain regular attendance, and be punctual”; and to “complete a
normal workday and workweek without interruptions from psychologically based symptoms and
to perform at a consistent pace without an unreasonable number and length of rest periods.” (TR at
419-20.) Dr. Chahal also found her to be moderately limited in her ability to “interact appropriately
with the general public,” and in her ability to “respond appropriately to changes in the work setting.”
(TR at 420.) Dr. Chahal concluded that Lopez’s “mental allegations are pertially [sic] credible,” but
that the symptoms and limitations that she reported were not entirely consistent with the medical
records. (TR at 404.)
On January 26, 2013, Dr. Garcia examined Lopez and completed a questionnaire about her
mental health at the request of the Massachusetts Department of Transitional Assistance. (TR at 80307.) Dr. Garcia wrote that Lopez was currently showing the following clinical signs and symptoms:
low energy, sleep problems, panic attacks, hopelessness, and concentration problems. (TR at 803.)
He reported that she appeared “physically unkempt,” was “frequent[ly] date and place disoriented,”
had a worried affect, slow speech, and concentration and memory problems. (Id.) He stated that
impairments that might affect Lopez’s ability to work included concentration and memory problems,
sleeping problems, panic attacks, depression, low energy, hopelessness, and passive suicidal
ideations. (TR at 805.) Dr. Garcia reported that Plaintiff’s mental health condition negatively
affected her ability to do ordinary housework, driving, managing medications, general organization,
and visiting family or friends. (Id.) The doctor stated that Lopez’s impairments affect her ability to
work, and that they were expected to last more than one year. (TR at 806.)
3. Hearing Testimony
At the administrative hearing, Lopez testified that she came to the mainland United States

17

from Puerto Rico with her daughter to help take care of her daughter’s four children.10 (TR at 37-38.)
She testified that she lived with her daughter at first, but eventually moved out because she and her
daughter were not getting along well. (TR at 37-39.) Lopez stated that she now lived in a shelter,
and had submitted an application for more permanent housing. (TR at 38-39, 42.) She testified that
she has a niece with whom she stayed for three weeks, but that they no longer get along. (TR at 43.)
She stated that she also has a sister who lives in the area. (Id.)
Lopez described a typical day as waking up at 4:00 a.m., and then sitting in the shelter living
room until 6:00 a.m., when it was time for breakfast. (TR at 39-41.) She told the ALJ that she would
then “go out to do [her] things,” such as go to appointments, shop for groceries, or walk in the park.
(Id.) She stated that she typically uses public transportation to travel, but sometimes walks or gets
a ride. (TR at 39-41.) Lopez testified that, for leisure, she might read the Bible or watch television.
(TR at 45.) She also stated that, when she lived with her daughter, she went to three-hour services
at church on Sundays, but that she had not found a church she liked since moving to the shelter. (TR
at 44.) Lopez testified that she eats her meals at the shelter, preparing her own in the communal
kitchen with the items that she buys at the store. (TR at 46.)
Lopez testified that from 2000 through 2009, she worked as a receptionist for a furniture
store, primarily answering the telephone for customer service calls.11 (TR at 33-34.) She stated that
she left that job because she was suffering from severe anxiety for which she took medication and
was at one point hospitalized. (TR at 34.)
10

At the hearing, Lopez testified that she did not recall when she moved from Puerto Rico, but the record shows
that she made the move around September 2011. (See, e.g., TR at 340, 349.)
11

At this part of the transcript, the ALJ stated that Lopez had that job from 2000-2010, but that appears to be an
error. (TR at 33.)

18

Lopez told the ALJ that she is disabled and incapable of performing work because of
depression, anxiety, and panic attacks. (TR at 36.) She testified that she suffers from frequent
depressive episodes, that leave her “[s]ad, without energy, and [with] no motivation.” (TR at 47.)
She also testified that she suffers from panic attacks once a week and that they last approximately
45 minutes. (TR at 36, 47.) She described the panic attacks as follows:
When I’m going to have an attack, I feel tightness in my chest. I feel that I’m having
a hard time breathing. I feel that I’m going to die. As I was dying [sic] I just feel
awful.
(TR at 48.) She explained that she sometimes went to the emergency room when having a panic
attack because “they hit me hard and I cannot control it.” (Id.) Lopez stated that, when having an
episode of depression or anxiety, she does not feel that she can do anything other than retreat to her
room to lie down, and cannot even watch television. (TR at 47-49.) Lopez told the ALJ that she is
unable to anticipate whether she is going to suffer from a depressive or anxious episode. (TR at 4849.) She stated that “[t]here are days I feel okay, but there are so many days that I don’t feel okay.”
(TR at 49.)
Lopez stated that she takes medication daily for panic attacks, and said that it helps her,
although it does not “cure [her].” (TR at 36-37.) Lopez testified that her depression affects her on
a day-to-day basis “because [she is] not the same person as [she] used to be.” (TR at 37.) She stated
that she takes medication for depression, as well, and also attends therapy once every one-to-two
weeks. (Id.) She told the ALJ that the anti-depressant medications also help, but do not “cure” her.
(Id.) She stated that the therapy helps, as well. (Id.)
The vocational expert, Dr. James Cohen, also testified at the hearing. (TR at 50-54.) Dr.
Cohen identified Plaintiff’s past relevant work as a receptionist as semi-skilled, sedentary work; her

19

work as an accounting clerk as skilled, sedentary work; her work as a sewing machine operator as
skilled, light work; and her work as a customer service clerk as semi-skilled, light work. (TR at 51.)
The ALJ asked Dr. Cohen the following hypothetical question:
Q ... Now, assume, if you will that a hypothetical person is of the same age,
education, language, and work background as the claimant. Further assume that, that
if there is work that such a person could perform it would be subject to the following
limitations. This person would have no exertional level, however, would have the
following nonexertional limitations. This person would be able to understand and
carry out two- to three-step tasks and would be able to maintain concentration,
persistence, and pace in the performance of these tasks for two-hour increments over
an eight-hour workday over a 40-hour workweek. This person would be able to relate
to coworkers and supervisors on a superficial basis and would be able to have
occasional superficial interaction with the general public. This person would be able
to deal with minor changes in the work place. Would such a person be able to
perform any of the past work of the claimant?
A She would be able to be a receptionist and she could also be a customer
service clerk. It would be my professional [sic] that she could also be the sewing
machine operator, however, it may be more complex than two or three steps. Most
-- I mean she indicated that she was making part of a bra, not the entire bra so I, I
would say that would fall under two to three steps so those three jobs.
Q So the sewing machine operator as performed?
A Correct.
(TR at 52-53.) The ALJ then posed another hypothetical:
Q Now, assume, if you will, that our second hypothetical person is a -- has
the following limitations. This person -- okay. This person would have marked
limitations in maintaining social functioning as well as maintaining concentration,
persistence, and pace, and also in activities of daily living. For purposes of this
functional capacity assessment marked means more than moderate but less than
extreme. A marked limitation may arise when several activities of [sic] functions are
impaired or even when only one is impaired so long as the degree of limitation is
such as to seriously interfere with the ability to function independently,
appropriately, and effectively in that category. Would such a person be able to
perform any work in the regional or national economy?
A No.

20

(TR at 53.)
Plaintiff’s attorney also asked the vocational expert a hypothetical question, as follows:
Q If you could presume in the first hypothetical that the person would be
limited to superficial interaction with coworkers and the public, minor changes in the
work setting, but such a person would be unable to maintain attention and
concentration for up to two periods -- two hours at a time throughout the workday
in the course of doing simple and unskilled work. What effect would that have on the
jobs you described?
A That person would not be able to work.
(Id.) The attorney also asked Dr. Cohen:
Q Okay. And if such a person limited to the simple, unskilled level were to
experience over the course of the year an absentee rate of approximately 12 to 24
absences from the workplace, what effect would that have on the available jobs?
A They would not have an opportunity to work.
(Id. at 54.)
With that, the ALJ concluded the hearing. (Id.)
III. THE STANDARD OF REVIEW
Title 42 U.S.C. § 405(g) provides, in relevant part:
Any individual, after any final decision of the Commissioner of Social Security made
after a hearing to which he was a party, irrespective of the amount in controversy,
may obtain a review of such decision by a civil action commenced within sixty days
after the mailing to him of notice of such decision or within such further time as the
Commissioner of Social Security may allow . . . . The court shall have power to
enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with
or without remanding the cause for a rehearing. The findings of the Commissioner
of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . .

The court’s role in reviewing a decision of the Commissioner under this statute is circumscribed:

21

We must uphold a denial of social security disability benefits unless ‘the Secretary
has committed a legal or factual error in evaluating a particular claim.’ Sullivan v.
Hudson, 490 U.S. 877, 885, 109 S. Ct. 2248, 2254, 104 L. Ed. 2d 941 (1989). The
Secretary’s findings of fact are conclusive if supported by substantial evidence. See
42 U.S.C. § 405(g); see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427, 28 L. Ed. 2d 842 (1971).
Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996); see Reyes
Robles v. Finch, 409 F.2d 84, 86 (1st Cir. 1969) (holding that “as to the scope of court review,
‘substantial evidence’ is a stringent limitation”).
The Supreme Court has defined “substantial evidence” to mean “‘more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)); see Irlanda Ortiz v. Secretary of Health & Human Servs., 955
F.2d 765, 769 (1st Cir. 1991). It has been explained that:
In reviewing the record for substantial evidence, we are to keep in mind that ‘issues
of credibility and the drawing of permissible inference from evidentiary facts are the
prime responsibility of the Secretary.’ The Secretary may (and, under his regulations,
must) take medical evidence. But the resolution of conflicts in the evidence and the
determination of the ultimate question of disability is for him, not for the doctors or
for the courts. We must uphold the Secretary’s findings in this case if a reasonable
mind, reviewing the record as a whole, could accept it as adequate to support his
conclusion.
Lizotte v. Secretary of Health & Human Servs., 654 F.2d 127, 128 (1st Cir. 1981) (quoting
Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). In other
words, if supported by substantial evidence, the Commissioner’s decision must be upheld even if
the evidence could also arguably admit to a different interpretation and result. See Ward v.
Commissioner of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000); Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999) (per curiam).

22

Finally it has been noted that,
Even in the presence of substantial evidence, however, the Court may review
conclusions of law, Slessinger v. Sec’y of Health & Human Servs., 835 F.2d 937, 939
(1st Cir. 1987) (per curiam) (citing Thompson v. Harris, 504 F. Supp. 653, 654 [D.
Mass.1980]), and invalidate findings of fact that are ‘derived by ignoring evidence,
misapplying the law, or judging matters entrusted to experts,’ Nguyen v. Chater, 172
F.3d 31, 35 (1st Cir. 1999) (per curiam).
Musto v. Halter, 135 F. Supp. 2d 220, 225 (D. Mass. 2001).
IV. DISCUSSION
In order to qualify for either DIB or SSI, a claimant must prove that 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
In this case, in determining Lopez’s eligibility for benefits, the ALJ conducted the familiar
five step evaluation process to determine whether an adult is disabled. See 20 C.F.R. §§ 404.1520(a),
416.920(a); Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982);
Veiga v. Colvin, 5 F. Supp. 3d 169, 175 (D. Mass. 2014). At the first step, the ALJ found that Lopez
had “not engaged in substantial gainful activity since November 1, 2011, the alleged onset date [of
disability].” (TR at 18.) At the second, he found that Lopez suffered from the following medically
determinable impairments--“anxiety disorder and depressive disorder”--and that both of these
impairments are “severe.” (TR at 19-22.) At step three, the ALJ determined that Lopez “does not
have an impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (TR at 22-23.) For this
step, the ALJ considered Listing 12.04, for affective disorders, and Listing 12.06, for anxiety-related
disorders. (Id.) At the fourth step, the ALJ found that Lopez has the following RFC:
23

I find that the claimant has the residual functional capacity to perform a full range
of work at all exertional levels but with the following nonexertional limitations: she
could maintain concentration, persistence or pace for two hour increments during an
eight hour workday and 40 hour workweek, she could understand and carry out two
to three step tasks, she could have superficial and occasional interaction with
coworkers and supervisors, she could have occasional and superficial interaction
with the general public, and she could deal with minor changes in the workplace.
(TR at 23-25.) And at the fifth step, the ALJ considered Lopez’s RFC, age, education, and relevant
work experience, and the testimony at the hearing, and determined that Lopez “is capable of
performing past relevant work as a receptionist, sewing machine operator and customer service
clerk.” (TR at 25.) After making these findings, the ALJ concluded that Lopez “has not been under
a disability, as defined in the Social Security Act, from November 1, 2011, through the date of this
decision,” and he denied her applications for benefits. (Id.)
In her motion, Plaintiff argues that the ALJ erred by failing properly to consider her GAF
scores from December 2011 to April 2013. (#16-1 at 4-7.) She also complains that the ALJ failed
to take into consideration “the assessments of a Social Security evaluator who opines that [t]he
claimant suffers marked limitations in the occupational domain of concentration, persistence and
pace.” (Id. at 7.) Finally, she claims that the ALJ erred because he did not “address uncontroverted
evidence that plaintiff would be expected to miss time from work due to her medical condition.”
(Id.)
A. Global Assessment of Functioning Scores
Plaintiff first contends that the ALJ erred because he either failed to address or improperly
rejected the findings of Dr. Agresar, Dr. Garcia, and Matorras as to her GAF score. (TR at 4-7.)
From December 2011 through April 2013, Lopez was given a GAF score of 50 or below at least
twenty times, all by doctors or therapists who repeatedly examined and treated her. (See id. at 5-6.)

24

A “50”on the GAF scale indicates that the patient suffers from “serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) [or] moderate difficulty in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” American Psychiatric
Institute, Diagnostic & Statistical Manual of Mental Disorders (“DSM–IV”) 34 (4th ed.1994). In
December 2011, Dr. Agresar found that Lopez had a GAF of 40, and in January 2013, found it to
have dropped again, to 38. (TR at 301-02, 755.) Those scores indicate “[s]ome impairment in reality
testing or communication ... [or] major impairment in reality testing or communication ... [or] major
impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.”
DSM-IV at 32. In his decision, the ALJ acknowledged the score of 38, as well as a score of 60 that
was given to her in 2009, well before she applied for benefits. (TR at 19.) He makes no mention,
however, of the fact that numerous scores of 50 were given to Plaintiff over the relevant time period.
Defendant argues that this was not in error because the GAF scale is not part of the DSM-V,
the newest edition of the manual, published in May 2013. (#25 at 14-17.) Defendant also claims that
“[i]t appears that the GAF scores remained constant because Mr. Matorras and Dr. Garcia did not
update the pertinent section of their progress notes.” (Id.) Defendant further claims that the ALJ did
not err because the scores appear to be inconsistent with some of the objective findings in the same
records. (Id.)
Defendant is correct that the GAF scale was not included in the most recent version of the
DSM. See King v. Colvin, No. Civ. A. 14-10380-ADB, 2015 WL 531589, at *14 (D. Mass. Sept. 11,
2015) (“Indeed, the American Psychiatric Association has moved away from the GAF system in
recent years”); Mendes v. Colvin, No. Civ. A. 14-12237-DJC, 2015 WL 5305232, at *8 (D. Mass.
Sept. 10, 2015). However, “the Social Security Administration ... has indicated that it will continue

25

to receive into evidence and consider GAF scores.” Blais-Peck v. Colvin, No. Civ. A. 14-cv-30084KAR, 2015 WL 4692456, at *n.3 (D. Mass. Aug. 6, 2015) (citing SSA Administrative Memorandum
13066 (July 22, 2013)). Further, courts have not disavowed the GAF scale as a measurement of
one’s mental capacity: “Although ALJs ‘cannot draw reliable inferences from the difference in GAF
ratings assigned by different clinicians or from a single GAF score in isolation,’ they can continue
to ‘consider GAF scores just as [they] would other opinion evidence, [although] scores must have
supporting evidence to be given significant weight.’” Mendes, 2015 WL 5305232, at *8 (quoting
Bourinot v. Colvin, No. 14-cv-40016-TSH, 2015 WL 1456183, at *13-14 (D. Mass. Mar. 30, 2015));
see King, 2015 WL 531589, at *14. Moreover, the GAF scale was in effect at the time that Plaintiff’s
caregivers used it as a means to define her mental limitations. See Mendes, 2015 WL 5305232, at
*8. Finally, it is well settled that:
Treating physicians’ opinions are ordinarily accorded deference in Social Security
disability proceeding[s], Richards v. Hewlett–Packard Corp., 592 F.3d 232, 240 n.
9 (1st Cir. 2010), because these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of [the claimant’s] medical
impairment(s) and may bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief hospitalizations.
King, 2015 WL 5315189, at *14 (citing 20 C.F.R. § 416.927(c)(2)) (internal quotation marks
omitted). “Thus, a treating-source opinion is entitled to controlling weight, if it is ‘well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the claimant’s] case record.’” Id. (quoting 20 C.F.R.
§ 416.927(c)(2)). If the ALJ does not give controlling weight to a treating source opinion,
the ALJ considers an array of factors to determine what weight to grant the opinion, including the
length of the treatment relationship and the frequency of examination, the nature and extent of the
treatment relationship, the degree to which the opinion can be supported by relevant evidence, and
the consistency of the opinion with the record as a whole. See 20 C.F.R. § 404.1527(c)(2)-(6);
26

416.927(c)(2)-(6). Further, the regulations require adjudicators to explain the weight given to a
treating source opinion and the reasons supporting that decision. See 20 C.F.R. § 404.1527(c)(2);
416.927(c)(2) (“We will always give good reasons in our notice of determination or decision for the
weight we give your treating source’s opinion.”).
Bourinot, 2015 WL 1456183, at *11-12; see Conte v. McMahon, 472 F. Supp. 2d 39, 48 (D. Mass.
2007); Walker v. Barnhart, No. Civ. A. 04-11752-DPW, 2005 WL 2323169, at *18 (D. Mass. Aug.
23, 2005) (The ALJ must “accept[] or explicitly discredit[]...the record evidence from [the claimant]
and her treating physician”). Here, the ALJ should have considered all of the evidence, and given
specific reasons when rejecting the opinions of the treating sources.12 The fact that he did not
constitutes reversible error.
Defendant also speculates that Matorras and Dr. Garcia may simply not have updated their
progress report form to reflect a change in GAF score, and argues that the scores appear to be
inconsistent with other findings in those reports. (#25 at 14-17.) Defendant claims, in particular, that
some reports by Matorras and Dr. Garcia state that Lopez’s GAF is 50 while also finding that she
had no objective signs of anxiety or no mental abnormalities.13 (Id. at 15-16.) Instead of supporting
Defendant’s argument, however, these claims demonstrate the need for further development of the
record. An ALJ “has a ‘duty to develop an adequate record from which a reasonable conclusion can
12

Importantly, in this case, the ALJ afforded Dr. Garcia’s report and mental impairment questionnaire “little
evidentiary weight” because “Dr. Garcia’s conclusions are inconsistent with the medical evidence of record when
view[ed] in its entirety.” (TR at 24.) The ALJ offered no specific examples or evidence from the record demonstrating
the purported inconsistencies. See, e.g., Bourinot v. Colvin, No. 14-cv-40016-TSH, 2015 WL 1456183, at *13 (D. Mass.
Mar. 30, 2015) (“The ALJ provided specific reasons, supported by evidence in the case record, for his decision to
discount each of the opinions of Dr. Anderson, Dr. Burns, and Dr. Vogel. The reasoning is sufficiently specific to inform
both the claimant and this reviewing Court of how each treating source opinion was evaluated”). Given that a treating
physician’s opinion is generally afforded considerable deference, relying on a sweeping statement alone simply is an
insufficient basis upon which to devalue Dr. Garcia’s opinion.
13

The first of the reports Defendant cites in support of this argument is Dr. Garcia’s from January 26, 2013. (TR
at 515-17 [duplicated at TR 849].) Contrary to Defendant’s claim, in that record, Dr. Garcia stated that Lopez
“appear[ed] anxious” and showed “signs of anxiety,” and also that she reported hallucinations. (Id.)

27

be drawn.’” King, 2015 WL 5315189, at *11 (quoting Heggarty v. Sullivan, 947 F.2d 990, 997 (1st
Cir. 1991)). Accordingly, “‘[i]f the evidence does not support a source’s opinion and the ALJ cannot
ascertain the basis for the source’s opinion, the ALJ has an obligation to “make every reasonable
effort” to recontact the source for clarification.’” Id. at *12 (quoting Gaeta v. Barnhart, No. Civ. A.
06-10500-DPW, 2009 WL 2487862, at *5 (D. Mass. Aug. 13, 2009) (quoting SSR 96–5P, 1996 WL
374183, at *6 (July 2, 1996))). “Specifically, the ALJ must recontact the treating doctor when the
doctor’s records are inadequate, contain conflict or ambiguity, do not appear to be based on
medically acceptable diagnostic techniques, or appear incomplete.” Id. (citations and internal
quotation marks omitted). “‘The ALJ may carry out this duty by seeking additional evidence or
clarification from the source, telephoning the medical provider, or requesting copies of the records,
a new report, or more detailed report.’” Id. (quoting Gaeta, 2009 WL 2487862, at *5).
In this case, the ALJ should have sought clarification before rejecting the GAF findings of
Lopez’s treating sources. See id. The failure is particularly problematic here, where Lopez’s GAF
score was repeatedly and consistently found to be 50 or below, and there was significant evidence
that Lopez suffered from a number of serious mental health problems. The ALJ may ask, for
instance, why Dr. Agresar gave Lopez a GAF score of 38 while in the same report stating that she
appeared to be exaggerating her symptoms. (See TR at 678, 690-91.) Also, the ALJ can inquire as
to whether Dr. Garcia and Matorras intended to give Lopez so many GAF scores of 50, or merely,
as Defendant posits, neglected to erase the entry from the form. Further, the ALJ should ask the
sources to provide explanations for seemingly inconsistent or unsupported findings. Only when the
record is fully developed can the ALJ can make a decision that is supported by substantial evidence.
B. Worksheet

28

Lopez also argues that the ALJ erred because he failed to discuss “the assessments of a
Social Security evaluator who opines that [t]he claimant suffers marked limitations in the
occupational domain of concentration, persistence, and pace.” (#16-1 at 7 [citing TR at 265-68].)
The assessment in question is titled “IR Special Project Case Analysis Worksheet,” and appears to
be an internal SSA summary of some of Plaintiff’s medical history that was forwarded to Dr. Chahal
for use in his state-ordered assessments. (See TR at 265-68, 403-04.) The name of the evaluator is
not given. Plaintiff makes no effort to identify this document. She also cites no authority requiring
an ALJ to consider an unsigned, internal SSA worksheet from an unknown evaluator. Further, she
fails to show that the worksheet is, in fact, an opinion that should be reviewed along with other
medical records. Moreover, the ALJ addressed the assessments by Dr. Chahal, who considered the
worksheet. (See TR at 19-25, 403-04.) Under these circumstances, Plaintiff has not shown that the
ALJ committed an error by not addressing the assessments made in the evaluation, and the case need
not be remanded on this issue.
C. Uncontroverted Evidence
Lopez further argues that the ALJ should have “address[ed] uncontroverted evidence that
[she] would be expected to miss time from work due to her medical condition.” (#16-1 at 7.)
Specifically, she points out that “[t]he ALJ concedes that the claimant experienced two psychiatric
breaks and episodes of decompensation during the period of alleged disability.” (Id. [citing TR at
23].) She further notes that the record contains evidence that she “underwent three psychiatric
hospitalizations during the period of alleged disability..., as well as several emergency room
treatments.” (Id. at 8 [citing TR at 305, 690, 755].) Plaintiff argues that this evidence is
uncontroverted and that it supports a finding that she may face “excessive absenteeism from the

29

workplace.” (Id.) Defendant did not rebut these arguments.
As detailed above, an ALJ has a duty to consider the findings and opinions of treating
sources “by either accepting or explicitly discrediting [them].” Walker, 2005 WL 2323169, at *18
(“[t]he ALJ erred by failing to consider [the evidence] regarding how frequently she could be
expected to miss work due to [her impairment] when reaching his determination of her RFC”). In
this case, not only was there evidence from treating sources that goes to the issue of absenteeism,
but the vocational expert testified that a person who would “experience over the course of a year an
absentee rate of approximately 12 to 24 absences from the workplace” would not be able to work.
(TR at 54.) By failing to address this evidence, the ALJ clearly breached his duty. The case must be
remanded so that he can consider these matters.14
V. CONCLUSION
For all the reasons stated, it is ORDERED that the Plaintiff’s Motion for Order Reversing
Decision of the Commissioner (#16) be, and the same hereby is, ALLOWED, and that Defendant’s
Motion to Affirm the Commissioner’s Decision (#24) be, and the same hereby is, DENIED.

14

One of the issues that the ALJ should discuss on remand is whether partial hospitalization programs allow
patients to work.

30

It is FURTHER ORDERED that the decision of the ALJ is VACATED, and the matter is
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent
with this opinion.
/s/ M. Page Kelley
M. Page Kelley
United States Magistrate Judge

September 29, 2015

31