Benelli v. Social Security Administration
Filing
25
Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER. In accordance with the foregoing discussion, the motion to reverse and remand the decision of the Commissioner (Docket Entry 16 ) and the motion to affirm the decision of the Commissioner (Docket Entry 21 ) are ALLOWED in part and DENIED in part. (Patton, Christine)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
PAULINE J. BENELLI,
Plaintiff,
v.
CIVIL ACTION NO.
14-10785-MBB
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM AND ORDER RE:
PLAINTIFF’S MOTION FOR AN ORDER REVERSING OR REMANDING THE
DECISION OF THE COMMISSIONER (DOCKET ENTRY # 16); DEFENDANT’S
MOTION FOR ORDER AFFIRIMING THE DECISION OF THE COMMISSIONER
(DOCKET ENTRY # 21)
May 28, 2015
BOWLER, U.S.M.J.
Pending before this court are cross motions by the parties,
plaintiff Pauline J. Benelli (“plaintiff”) and defendant
Commissioner of Social Security Administration (“Commissioner”
or “defendant”).
Plaintiff seeks to “vacate the November 8,
2012, decision” of the administrative law judge (“ALJ”) “and
remand [plaintiff’s] claim for a new administrative hearing.”
(Docket Entry # 16, p. 10).
The Commissioner moves to affirm
the denial of benefits under 42 U.S.C. § 405(g).
# 21).
(Docket Entry
In addition to raising other arguments, the parties
focus their dispute on the ALJ’s determination that plaintiff’s
alcohol abuse was a material contributing factor to the
disability determination, see 42 U.S.C. § 423(d)(2)(C), thereby
warranting a denial of benefits.
PROCEDURAL HISTORY
On June 23, 2010, plaintiff filed an application for social
security disability insurance benefits (“DBI”) as well as an
application for supplemental security income (“SSI”).
117, 118-124).
(Tr. 116-
The applications reflect a disability onset date
of August 15, 2009.
(Tr. 116, 118).
The initial denial
notices, dated March 3, 2011, and an undated adult disability
report show that plaintiff alleged disability based on
depression, high blood pressure, attention deficit disorder
(“ADD”) and a cyst on her ovary.
(Tr. 54, 57, 141).
Both
claims were initially denied on March 3, 2011, and denied again
upon reconsideration on September 27, 2011.
63).
(Tr. 54, 57, 60,
On appeal, plaintiff additionally noted a “Debilitating
double depression; dysthymia with major depressive episode.”
(Tr. 215).
On October 24, 2012, a hearing was conducted by the ALJ.
(Tr. 10).
hearing.
Plaintiff was the only witness who testified at the
(Tr. 26-49).
In a decision issued on November 8,
2012, the ALJ concluded that plaintiff was not disabled.
10-24).
(Tr.
Plaintiff applied to the Appeals Council for review,
which was denied on January 17, 2014.
(Tr. 1).
FACTUAL BACKGROUND
2
Plaintiff was born January 9, 1962.
(Tr. 116).
At the
time of the hearing she was 50 years old, although the onset of
her alleged disability was 47 years of age.
(Tr. 30, 116).
Plaintiff is single and lives by herself in an apartment in
Quincy, Massachusetts.
(Tr. 29).
She holds a bachelor of arts
degree from Plymouth State College and a secretarial certificate
from Katherine Gibbs.
(Tr. 30).
She was previously employed as
a legal secretary or doing office work for approximately 30
years.
(Tr. 30-31).
In two function reports dated July 10, 2010, and May 27,
2011, plaintiff detailed that, on a normal day, she prepares
meals for herself, reads, watches television, cares for her cat,
makes telephone calls, attends appointments if she has any, runs
errands and takes her medication.
(Tr. 162, 167, 194, 196).
She stated that since the onset of her disability she does not
get dressed every day (Tr. 166, 195) and, as reported in 2010,
“stay[s] in pjs” (Tr. 166) or, as reported in 2011, “only
dress[es] if I have to go out” (Tr. 195).
She reported that she
bathes every two to four days, washes her hair less often and
has difficulty sleeping.
(Tr. 166, 195).
that she tries to go out “once a day.”
Plaintiff reported
(Tr. 168, 197).
She is
able to drive and approximately once a week does her own
shopping.
(Tr. 168, 197).
She described her hobbies and
interests as “reading, watching TV, [and] play[ing] with [her]
3
cat.”
(Tr. 198).
Plaintiff reported that she needs to read
written instructions “over and over,” she follows spoken
instructions “not too well,” handles stress “not well,” handles
changes in routine “not well” and gets along with authority
figures “not too well.”
I.
(Tr. 170-171, 199-200).
Medical History
Based on information regarding plaintiff’s medications
submitted by plaintiff to the Social Security Administration
(“SSA”) dated September 7, 2012, plaintiff was prescribed
Effexor, 150 milligrams for depression; Adderall, 40 milligrams
for ADD; Quinipril, 20 milligrams for high blood pressure; and
Clonazepam, .5 milligram as needed for anxiety.
(Tr. 235).
Plaintiff has taken antidepressants since 1994 and has a history
of depression “since high school.”
(Tr. 173, 582).
Although
she alleged disability based on both physical and mental
impairments, plaintiff challenges the ALJ’s conclusions only
with regard to her mental impairments.
A.
(Docket Entry # 4-10).
Physical Impairments
Plaintiff’s primary care physician is Barbara Nath, M.D.
(“Dr. Nath”).
The record reflects that plaintiff sees Dr. Nath
at least once a year for a checkup or more often if she
experiences an illness.
(Tr. 388-408).
The first clinical note
in the record is dated September 12, 2005, and reflects that
plaintiff was previously diagnosed with depression but was
4
“[d]oing well on Celexa” at that time.
(Tr. 408).
The note
shows that plaintiff’s blood pressure was high and she was
therefore prescribed hydrochlorothiazide at that visit.
408).
(Tr.
The note also reflects that plaintiff had a prescription
for 20 milligrams of Adderall.
(Tr. 408).
Dr. Nath’s records from 2006 through 2010 continue to
reflect the monitoring of plaintiff’s high blood pressure,
depression, osteoarthritis, ADD and medications.
396-400, 403, 404-407).
Dr. Nath continually prescribed
plaintiff Adderall during this time period.
403-407).
(Tr. 390, 396-400,
Beginning in 2007, Dr. Nath prescribed Quinipril for
plaintiff’s high blood pressure.
406).
(Tr. 406, 390,
(Tr. 406, 390, 396-400, 403-
With regard to the management of plaintiff’s depression,
the notes reflect that beginning in March 2006, and continuing
through July 2008, plaintiff was prescribed Lexapro, a selective
serotonin reuptake inhibitor (“SSRI”).
(Tr. 403-407).
From
July 2008 to 2011, the notes show plaintiff was prescribed
Prozac, also an SSRI.
(Tr. 390, 396-399).
On February 2, 2009,
plaintiff reported hip and back pain to Dr. Nath.
(Tr. 399).
An X-ray of her right hip performed that day showed no fracture
or misalignment, but noted “mild degenerative changes of the
right SI joint.”
(Tr. 401-402).
At the annual office visit with Dr. Nath on March 9, 2011,
plaintiff was described as “much better” since the Prozac dosage
5
was increased from 40 to 60 milligrams.
(Tr. 388).
noted she had been depressed since March 2010.
It was
(Tr. 388).
Dr.
Nath described plaintiff as “fe[eling] hopeful and energetic.”
Plaintiff reported, “I feel like my old self.”
(Tr. 388).
Dr.
Nath observed that her fatigue was “much better” and it
“[r]esolved with better treatment of depression.”
(Tr. 388).
The record also noted plaintiff’s medical history of
hypertension, ADD, depression and osteoarthritis.
(Tr. 388).
In April 2010, plaintiff was diagnosed with an ovarian cyst
after an ultrasound follow-up from her annual appointment.
262, 247).
(Tr.
The cyst was surgically removed on August 6, 2010.
(Tr. 252-254).
During a September 23, 2010 post-operative
visit, plaintiff reported no pain, “feel[ing] great” and it was
noted her incisions were “well healed.”
(Tr. 246).
Bertram Zarins, M.D. (“Dr. Zarins”) saw plaintiff at
Massachusetts General Hospital (“MGH”) regarding her left knee
on May 10, 2011.
(Tr. 288-289).
Plaintiff reported that she
began to experience “worsening left knee pain” in November 2010.
(Tr. 288).
According to the clinical note, plaintiff’s issues
with her left knee began in 1978 after an injury which caused an
anterior cruciate ligament rupture (“ACL”).
(Tr. 288).
Plaintiff subsequently underwent “an ACL reconstruction with
hamstring autograft in 1980” and was described at the
appointment with Dr. Zarins as “status post ACL reconstruction
6
(stable).”
(Tr. 288).
An X-ray of her left knee taken on May
10, 2011, revealed “medial compartment degenerative changes.”
(Tr. 288, 291).
Dr. Zarins diagnosed her with “[l]eft knee
degenerative joint disease, medial compartment.”
(Tr. 288).
Dr. Zarins noted that plaintiff complained of “anterior
knee pain” and “describe[d] it more as a feeling of looseness
than pain” but with “occasional stiffness” and occasional
“searing/shooting pains on both her medial and lateral aspects
of her knee.”
(Tr. 288).
As set forth in the record, plaintiff
stated that the pain “disrupted her ability to walk, climb
stairs, run, squat, pivot or twist, sit for long periods of time
with her knee bent or work.”
(Tr. 288).
Dr. Zarins recommended
a treatment plan of “activity modification, the use of NSAIDs
[non-steroid anti-inflammatory drugs] and physical therapy
exercises.”
(Tr. 288).
Theresa Kriston, M.D. (“Dr. Kriston”) completed a physical
residual functional capacity (“physical RFC”) assessment on
September 26, 2011.
(Tr. 366-373).
On the physical RFC, she
listed plaintiff’s primary diagnosis as left knee pain, with a
secondary diagnosis of obesity and nonsevere impairments of high
blood pressure and ovarian cysts.
(Tr. 366, 368).
Dr. Kriston
found plaintiff could frequently lift or carry ten pounds, stand
and/or walk for about six hours of an eight hour workday and sit
for about six hours of an eight hour workday.
7
(Tr. 367).
She
additionally found plaintiff was limited to occasionally (less
than one-third of the time) pushing foot controls with her left
leg because of the documented issues with her left knee but
additionally noted the knee was stable with no crepitus or
tenderness.
(Tr. 367-368).
Dr. Kriston opined that plaintiff
had postural limitations of only occasionally being able to
balance, stoop, kneel, crouch, crawl, or to climb ladders,
ropes, scaffolds, ramps or stairs.
Dr. Kriston found no
manipulative, visual, communicative or environmental
limitations.
(Tr. 369-370).
Dr. Zarins completed a medical source statement on May 31,
2012, which evaluated plaintiff’s ability to do physical workrelated activities.
(Tr. 503-506).
Dr. Zarins assessed that
plaintiff could lift or carry up to 20 pounds occasionally1 and
up to ten pounds frequently,2 stand or walk for at least two
hours of an eight hour work day and that her abilities to sit or
push/pull were unaffected.
(Tr. 503-504).
Additionally, he
noted that plaintiff had postural limitations and could never
climb ramps, stairs, ladders, rope, or scaffold, never crouch,
crawl or stoop and only occasionally balance or kneel.
1
(Tr.
The form defines “occasionally” as being able to perform the
activity for one-third of the time in an eight hour day.
2
The form defines “frequently” as being able to perform the
activity for one-third to two-thirds of the time in an eight
hour day.
8
504).
Dr. Zarins noted no manipulative or communicative
limitations, though he indicated an environmental limitation
that plaintiff should avoid hazards such as heights and
machinery.
B.
(Tr. 505-506).
Mental Impairments
George Gardos, M.D. (“Dr. Gardos”) first examined plaintiff
on July 29, 1994, and last examined her on October 18, 1999.
(Tr. 242).
240).
He stated he had not seen her since 1999.
(Tr.
He noted she experienced “chronic depression since age
[ten], stormy relationships, difficulty functioning” along with
“lapses in concentration,” that “her mind often wandered” and
she “missed appointments.”
(Tr. 242).
Dr. Gardos further
reported “during her depressions she tended to avoid making
decisions” and that she was “oversensitive to criticism.”
(Tr.
241).
Amy Pransky (“Pransky”), a licensed clinical social worker,
saw plaintiff “beginning in 1993 with sporadic times in therapy
until 2000” and once on July 7, 2010.
(Tr. 236-238).
She
provided a diagnosis of dysthymic disorder and posttraumatic
stress disorder (“PTSD”).
(Tr. 236).
Pransky mentioned that
plaintiff “has been unable to find employment in three years.”
(Tr. 236).
Pransky noted plaintiff was “sleeping a lot due to
depression” but that she “seems able to complete tasks” and “was
9
able to maintain a job and have significant relationships.”
(Tr. 236).
Plaintiff received counseling from South Bay Mental Health
(“SBMH”) beginning in September 9, 2010, and continuing until
December 27, 2011.
(Tr. 293-360, 409-433).
Adrianna Neagoe,
M.D. (“Dr. Neagoe”) was responsible for plaintiff’s medication
management through SBMH beginning on December 21, 2010.
294-295, 410, 424-427).
(Tr.
According to an adult comprehensive
assessment form completed upon plaintiff’s intake on September
9, 2010, plaintiff was referred to SBMH by Brockton Hospital
“for depression, ADD and unemployment.”
(Tr. 322).
As noted on
the form, plaintiff “sought treatment for feelings of depression
. . . generally surrounding relationships with family and
friends and motivation to work.”
(Tr. 330).
At the time, she
was diagnosed with dysthymic disorder and her GAF score was 55.
(Tr. 330).
Plaintiff began seeing Melanie Lazar, M.A. (“Lazar”) for
individual psychotherapy sessions at SBMH on September 9, 2010.
(Tr. 321).
Plaintiff also saw Lazar on September 15, September
29 and October 6, 2010.
(Tr. 318-320, 322-338).
According to
the psychotherapy treatment notes, at these appointments
plaintiff and Lazar set treatment goals, created a yearlong
“individualized action plan” (“IAP”) (Tr. 332-340) and discussed
plaintiff’s depression and feelings as well as her goals and
10
difficulties related to finding employment.
(Tr. 318-321).
The
first goal enumerated in the treatment plan was to “improve
daily living,” including the subcategory objectives of
“identifying employment desires,” “steady job,” “develop[ing]
stability in her life” and “improving home cleanliness.”
332).
(Tr.
Plaintiff’s second and third goals were to improve
“interpersonal/social skills” and to manage her depression.
(Tr. 334-336).
On November 5, 2010, plaintiff started seeing Kristen
Allaire (“Allaire”), a licensed mental health counselor, for
individual psychotherapy sessions at SBMH.
(Tr. 316).
Plaintiff continued seeing Allaire until June 2011.
At this
first appointment, Allaire noted that plaintiff was “tearful”
and reported increased symptoms of “depression, difficulty
concentrat[ing], sleeping more than the recommended amount” and
“not enjoying her days.”
(Tr. 316).
On December 16, 2010,
however, Allaire recorded that plaintiff was in a “more
[positive] mood today,” reported less stress and had a “plan to
the meet with Mass Rehab to discuss job opport[unities].”
(Tr.
312).
R. Peter Hurd, Ed.D. (“Dr. Hurd”) conducted a consultative
examination of plaintiff on December 16, 2010.
(Tr. 265-269).
He made a “tentative diagnosis” of a “Major Depressive Disorder
recurrent moderate”; alcohol dependence; dysthymic disorder; ADD
11
and PTSD.
267).
(Tr. 266).
He ruled out social phobia.
(Tr. 266-
He reported that plaintiff had previously seen therapists
when she was depressed in high school in 1992 and then beginning
again in June 2010.
(Tr. 265).
At the time of the interview,
plaintiff denied any current substance abuse or history of
substance dependence and stated she had last used alcohol two
weeks prior.
(Tr. 265-266).
Plaintiff reported being arrested
for operating under the influence in 2007.
(Tr. 265).
Dr. Hurd
recorded that plaintiff “loses jobs when she calls in sick to
[sic] often.”
(Tr. 265).
He stated that, “Work becomes boring
for her, she can’t wake up an[d] become motivated to go to
work.”
(Tr. 265).
Additionally he noted, “She says, ‘the
novelty wears off or I have authority problems.’”
(Tr. 265).
Dr. Hurd found she had “lost a lot of friends” and plaintiff
reported “difficulty making and keeping friends.”
266).
(Tr. 265-
Dr. Hurd also noted that plaintiff “feels that people are
watching her, and has grandiose feelings, thinking she is
superior to others.”
(Tr. 266).
During the examination with Dr. Hurd, plaintiff scored 30
out of a possible 30 on the mini mental status exam (“MMSE”).
(Tr. 266).
Plaintiff was described as “cooperative” and her
“thought process appear[ed] organized.”
(Tr. 266).
alert and oriented to person, place and time.”
She “was
(Tr. 266).
Dr.
Hurd noted plaintiff “has a history of impulsive behaviors” and
12
was attending therapy at that time.
(Tr. 266).
He assessed
that she “show[ed] partial insight into her illness or
condition.”
(Tr. 266).
He described plaintiff as moderately
depressed and that “[h]er anxious and depressed features include
sleep difficulties, anxiety [and] relationship conflicts.”
266).
(Tr.
He also noted she “sleeps more than she wants to, up to
12 hours a day.”
(Tr. 266).
Richard Gould, Ed.D. (“Dr. Gould”), completed a psychiatric
review technique form (“PRTF”) on December 23, 2010.
283).
(Tr. 270-
Dr. Gould reviewed plaintiff’s medical records but did
not examine her.
Dr. Gould found plaintiff had nonsevere
impairments, namely depression (under listing 12.04 affective
disorders) and anxiety (under listing 12.06 anxiety-related
disorders), and that neither impairment precisely satisfied the
specific diagnostic criteria provided.
(Tr. 273, 275).
Dr.
Gould also noted a substance addiction disorder under listing
12.09 that related to plaintiff’s behavioral changes under
listing 12.04 and listing 12.06.
(Tr. 278).
Dr. Gould found
plaintiff to have mild functional limitations in activities of
daily living, maintaining social functioning and maintaining
concentration, persistence or pace, but no episodes of
decompensation.
(Tr. 280).
In compiling the report, Dr. Gould’s notes and commentary
show that he reviewed Dr. Hurd’s report, information submitted
13
by Pransky and Dr. Gardos and a function report completed by
plaintiff.
(Tr. 282).
Dr. Gould noted that plaintiff has a
“fairly long history of depression and anxiety” and that she
continues to use alcohol to some degree.
(Tr. 282).
He
additionally reported she was “[c]urrently in psychotherapy and
on psychotropics.”
(Tr. 282).
Dr. Gould made specific
reference to the function report where plaintiff “indicated she
was depressed because she could not find work.”
(Tr. 282).
He
found plaintiff had “no difficulty with driving an automobile,
attending meetings and appointments, maintaining her own home
and performing all household chores” and opined “[h]er current
level of activities and functioning suggests she possess the
concentration, attention, focus and persistence necessary for
work-related activities.”
(Tr. 282).
Plaintiff returned to SBMH on December 30, 2010, for an
appointment with Allaire, who noted plaintiff again seemed
positive and that, related to her Prozac dosage being increased
to 40 milligrams, she stated, “‘I feel more alert yet I am on
the couch all day.’”
(Tr. 313).
At a subsequent appointment on
February 3, 2011, Allaire noted that plaintiff again recounted
symptoms of depression, along with an increase in isolation and
“difficulty with motivating.”
(Tr. 310).
Plaintiff identified
the mood of her family members as “part of [the] trigger.”
310).
14
(Tr.
On March 17, 2011, after an increase in her Prozac dose to
60 milligrams, Allaire noted plaintiff reported “feeling ‘more
like her old self,’ yet reports continued isolation and going
[without] showering on some days in a row.”
(Tr. 307).
On
April 14, 2011, Allaire recorded that plaintiff reported
“feeling more depressed,” isolating after her condo association
unexpectedly inspected her condo and “sleeping approximately
[ten] [hours] per night.”
(Tr. 306).
On May 5, 2011, plaintiff
reported to Allaire that her Prozac dosage had been increased to
80 milligrams and rated her mood as a six out of ten.
305).
(Tr.
At an appointment on May 26, 2011, Allaire recorded that
plaintiff reported a decrease in her anxiety and paranoia
regarding her neighbors.
(Tr. 304).
On June 23, 2011, plaintiff reported her father had been
diagnosed with cancer and she expressed a desire to terminate
treatment.
(Tr. 304).
In an uncompleted form noting a plan to
terminate treatment, Allaire stated that plaintiff “reports she
is gradually working on cleaning [her] home.”
(Tr. 429).
On July 28, 2011, plaintiff returned to SBMH and began
seeing Kristin Sheridan, M.S. (“Sheridan”), for psychotherapy
symptoms.3
(Tr. 302).
At that appointment, Sheridan described
3
Although Pransky, Lazar, Allaire and Sheridan are not
acceptable medical sources, see 20 C.F.R. § 416.913(a), an ALJ
may consider “‘evidence from other sources’ . . . to ‘show the
15
plaintiff’s mood/affect as “depressed” and plaintiff as
“tearful.”
(Tr. 302).
Sheridan nonetheless reported plaintiff
“is responsive to cognitive reframing.”
(Tr. 302).
On
September 6, 2011, Sheridan noted that plaintiff’s mood was
“irritable,” she was alert and oriented and her behavior was
“aggressive/angry.”
(Tr. 297).
Harry Senger, M.D. (“Dr. Senger”), performed a consultative
examination of plaintiff on September 16, 2011, and filed a
report.
(Tr. 361-365).
Dr. Senger’s diagnoses of plaintiff
were dysthymic disorder; major depressive disorder (partial
syndrome); alcohol dependence disorder, continuing to drink; and
PTSD.
(Tr. 363).
(Tr. 363).
He also found she had a GAF score of 62.
Plaintiff reported she had been depressed “most all
her life and has been more depressed for the past 14 months or
so.”
(Tr. 361).
Dr. Senger noted plaintiff’s report that she
had trouble sleeping and concentrating, “is ‘tired all the
time’” and “report[ed] considerable guilt feelings,” however, he
opined that “[t]he other symptoms of major depression are not
met.”
(Tr. 361).
He recorded that plaintiff takes 80
severity of the applicant’s impairment(s) and how it affects his
or her ability to work.’” Voigt v. Colvin, 781 F.3d 871, 878
(7th Cir. 2015); see Pierce v. Colvin, 739 F.3d 1046, 1051 (7th
Cir. 2014) (a provider who is not “‘acceptable medical source[]’
cannot offer ‘medical opinions’”); 20 C.F.R. §§ 404.1513,
416.913, 416.902, 404.1527(a)(2).
16
milligrams of Prozac a day and ten to 20 milligrams of Adderall
approximately twice a week.
(Tr. 362).
Dr. Senger opined plaintiff met “the criteria for
posttraumatic stress disorder,” noting she has a “history of
childhood and young adult sexual abuse.”
(Tr. 361-362).
Plaintiff communicated that she experiences nightmares and that
“she is nervous most all the time.”
(Tr. 362).
Dr. Senger
noted “some mild agoraphobia,” although she could take the bus
and shop in stores without difficulty when the stores were not
crowded.
(Tr. 362).
Dr. Senger found plaintiff “me[t] the
criteria for Borderline personality disorder with symptom traits
reported of that condition – namely impulsiveness, day-to-day
moodiness, stormy relations, inappropriate anger, rejection
sensitivity, and frequent bored feelings.”
(Tr. 362).
During the examination, plaintiff recounted she engaged in
“[n]o church, club or other social activities” and had no
boyfriend.
(Tr. 362).
She reported doing chores “as needed”
throughout her day, such as cooking, cleaning, laundry and
shopping.
She also goes shopping or to dinner with her mother
about three times a week, cares for her cat and watches “‘lots
of television.’”
(Tr. 362).
She stated that she “has been
working fairly regularly, except for getting fired for
alcoholism three times over the years.”
(Tr. 362-363).
Plaintiff conveyed that she last worked full-time in 2007 and
17
recently performed temporary seasonal clerical work in December
2010.
(Tr. 361).
Plaintiff “acknowledge[d] an alcohol problem,
with one DUI and three other arrests for ‘drunk and disorderly’
in the past” and that she does not attend AA meetings.4
362).
(Tr.
She conveyed that she drinks “about [four to eight] ‘huge
glasses’ of wine, beer or vodka, a few times a week.”
362).
(Tr.
Dr. Senger noted plaintiff’s report that she continues to
drink several times a week.
(Tr. 364).
During a mental status examination, Dr. Senger noted
plaintiff was “in no distress” and described plaintiff as
“personable, pleasant, engaging” and “relat[ing] easily and well
here.”
(Tr. 363).
He found “no indication of delusions,
hallucinations, suicidality, or intoxication” and reported that
her mood was “appropriate to thought content expressed.”
363).
(Tr.
Dr. Senger detailed that plaintiff “shows no indication
of cognitive impairment on the usual mental status testing.”
(Tr. 363-64).
In fact, testing showed that plaintiff completed
the serial sevens “easily” and “without error,” abstracted a
proverb and achieved a perfect score of 30 on “the Mini-Mental
Status Exam.”
(Tr. 363-64).
Dr. Senger further observed that
plaintiff was “able to comprehend, remember, and carry out
4
Plaintiff previously attended court ordered AA meetings but
had not been to any on a voluntary basis.
18
instructions and to relate here very well for the exam.”
(Tr.
364).
At SBMH on September 22, 2011, Sheridan completed a new
IAP.
(Tr. 296).
The plan indicated plaintiff was working on
the goals of “reduc[ing] anxiety” and “decreas[ing] depressive
[symptoms].”
(Tr. 416, 418).
An SBMH discharge summary plan
reflects a discharge date of December 27, 2011.
The stated
reason for the discharge was that plaintiff met her goals and
did not need services.
The discharge summary reflects that
plaintiff developed coping skills with respect to her depressed
mood and irritability.
(Tr. 410).
Edwin Davidson, M.D. (“Dr. Davidson”) completed a PRTF on
September 26, 2011.
(Tr. 374-387).
Like Dr. Hurd, Dr. Davidson
found that plaintiff had the impairments of ADD, PTSD and a
dysthymic disorder.
Like Dr. Gould, Dr. Davidson found a
substance abuse disorder, namely, alcohol dependence, and,
similar to Dr. Senger, a personality disorder.
Dr. Davidson
considered that all of the impairments were “not severe.”
Davidson opined that these impairments were not severe.
375, 377, 386).
Dr.
(Tr.
Like Dr. Gould, Dr. Davidson found that
plaintiff had mild functional limitations in activities of daily
living, maintaining social functioning and maintaining
concentration, persistence or pace.
19
(Tr. 384).
He also found
insufficient evidence of any episodes of decompensation.
(Tr.
384).
Natalie Lender, M.D. (“Dr. Lender”) began treating
plaintiff on March 7, 2012.
(Tr. 582-583).
During her initial
evaluation, Dr. Lender diagnosed plaintiff with major depressive
disorder (recurrent and moderate) and alcohol abuse.
(Tr. 583).
She noted plaintiff denied any history of suicide attempts, “but
has suicidal ideations on and off.”
(Tr. 582).
Dr. Lender
observed that plaintiff’s mood was anxious and depressed and her
concentration was decreased.
(Tr. 580).
With regard to
plaintiff’s alcohol abuse, Dr. Lender noted that plaintiff has
been a “binge drinker since high school” and “has a [history] of
blackouts.”
(Tr. 582).
Dr. Lender’s notes reflect plaintiff’s
report that “most of her relatives and friends distance
themselves from her due to her unemployment and drinking
habits.”
(Tr. 582).
Plaintiff also acknowledged a 2007 driving
under the influence arrest.
(Tr. 582).
Dr. Lender further
noted that plaintiff “worked in approximately 50 work places”
and “[e]very time she would work for [three to four] months and
then start to call [in] sick” and lose her job.
(Tr. 582).
At the next appointment on April 4, 2012, Dr. Lender
described that plaintiff “[a]ppear[ed] reliable, motivated and
compliant.”
(Tr. 581).
She noted that plaintiff previously
tried Celexa, Wellbutrin and Lexapro and, although they worked
20
at first, they “became ineffective.”
(Tr. 581).
At an
appointment on May 16, 2012, plaintiff’s antidepressant was
switched to Effexor.
(Tr. 580).
Dr. Lender denoted plaintiff’s
mood as “‘sad’” and that plaintiff reported, “‘I am crying a
lot, sad, no energy.’”
(Tr. 580).
Plaintiff’s impulse control
was “fair” and her insight and judgment were “good.”
(Tr. 583).
On June 20, 2012, Dr. Lender described plaintiff’s mood as
“‘improved’” and that plaintiff reported, “‘I am crying less,
better energy.’”
(Tr. 579).
At the following appointment on
July 18, 2012, Dr. Lender again noted that plaintiff’s mood was
“‘improved.’”
(Tr. 578).
She assessed that plaintiff’s
depression was “improving” and she was “[m]ore motivated, more
active.”
(Tr. 578).
Dr. Lender recorded the same assessment of
plaintiff on August 8, 2012, and additionally noted that her
mood was “‘good’” and recorded that she reported, “‘I had a good
month.
In general[,] I feel better.’”
(Tr. 577).
On September 5, 2012, Dr. Lender again noted that
plaintiff’s depression was “improving,” she was “more active” as
well as “[m]ore motivated” and appeared “able to make informed
decision[s].”
(Tr. 576).
Her mood, however, was sad.
In the
final appointment note contained in the record, October 10,
2012, Dr. Lender recorded plaintiff informed her, “‘It was a
miracle last weekend – I had the desire and energy to clean my
house.’”
(Tr. 572).
Dr. Lender reported that plaintiff’s mood
21
was “‘less sad,’” she was “more animated” and she had “started
individual therapy and liked the results.”
(Tr. 572).
According to Dr. Lender, plaintiff’s judgment, insight, impulse
control and concentration were “fair” and she “appear[ed] able
to make informed decision[s].”
(Tr. 572).
Notably, her thought
process was “clear” and her thought content was “organized.”
(Tr. 572).
Plaintiff also maintained “good eye contact” during
the visit.
(Tr. 572).
Consistent with her prior descriptions,
Dr. Lender characterized plaintiff’s depression as “improving,”
her appearance as “fairly groomed” and her behavior as
“cooperative.”
(Tr. 572).
Dr. Lender depicted plaintiff as
“reliable, motivated and compliant.”
(Tr. 572).
One week later on October 17, 2012, Dr. Lender completed a
medical source statement form regarding plaintiff’s ability to
do mental, work related activities.
(Tr. 569-570).
The form
required Dr. Lender to place a checkmark next to various work
related qualities if Dr. Lender had the opinion that the quality
was “markedly limited” or “effectively precluded.”
(Tr. 569).
In contrast to Dr. Lender’s treatment notes, Dr. Lender checked
plaintiff’s ability to do the following as markedly limited or
effectively precluded:
“maintain socially appropriate behavior
and adhere to basic standards”; understand and remember detailed
instructions; maintain attention and concentration sufficient to
perform work tasks throughout an eight hour work day; perform
22
activities within a schedule, maintain regular attendance and be
punctual within customary tolerances; make simple work related
decisions; interact appropriately with the general public;
accept instructions and respond appropriately to criticism from
supervisors; get along with coworkers or peers without
distracting them or exhibiting behavioral extremes;5 travel in
unfamiliar places or use public transportation; and set
realistic goals or make plans independently of others.
569-570).
(Tr.
Dr. Lender additionally checked a number of other
qualities as markedly limited or effectively precluded albeit
not the ability to understand, remember and carry out very short
and simple instructions.
In a brief narrative, Dr. Lender set
out a diagnosis of major depressive disorder (recurrent and
moderate) supported by plaintiff’s symptoms of a “depressed
mood, low energy, impaired concentration, low motivation,
hopelessness, low self-esteem, increased irritability and
restlessness.”6
(Tr. 570).
5
Dr. Lender’s initial evaluation states that plaintiff had
tried Adderall for her ADD before she lost her job and then
stopped taking it. All of Dr. Lender’s subsequent treatment
notes reflect that plaintiff “[t]ried Adderall for ADD with good
effect.” (Tr. 572, 576-581).
6
Dr. Lender’s treatment notes uniformly describe plaintiff’s
concentration as “fair.” Seven days before completing the form,
Dr. Lender described plaintiff as “[m]ore motivated” and “more
active.” (Tr. 572).
23
Anne Modena (“Modena”), a licensed independent clinical
social worker, began seeing plaintiff for individual therapy
sessions on October 2, 2012.
(Tr. 573-575).
In an initial
evaluation of plaintiff, Modena diagnosed plaintiff with major
depressive disorder (moderate and recurrent) and alcohol
dependence.
(Tr. 574).
Modena described plaintiff’s mood as
“lethargic, sad and tired.”
(Tr. 574).
Modena noted that
plaintiff’s “[n]iece and sister-in-law keep their distance from
her.”
(Tr. 574).
Modena detailed plaintiff’s substance abuse history, noting
that plaintiff “admits that she is an alcoholic” and “a binge
drinker” whose “drinking problem began in the 11th grade when
she was 16.”
(Tr. 573-574).
She reported “binging once a
month” and her “last binge was six days ago.”
(Tr. 574).
Modena also noted plaintiff “has received complaints about her
drinking, and she has tried to control her drinking,” however,
“[o]ne month is the longest she was able to abstain.”
574).
(Tr.
Modena stated that plaintiff “does not want to stop
drinking.”
(Tr. 574).
Plaintiff had an appointment with Modena on October 16,
2012.
(Tr. 571).
Modena described plaintiff’s mood as
“depressed” and she was “spending most of her time helping her
mother care for her father.”
(Tr. 571).
Modena recorded, “She
continues to binge drink; she drank [seven] drinks in one
24
evening last week.
She does not want to stop drinking.”
(Tr.
571).
C.
State Disability Determination
The record contains evaluations and documents completed in
connection with plaintiff’s application for state disability
benefits under the Emergency Aid to the Elderly, Disabled and
Children program.
(Tr. 434-502).
On May 17, 2012, the state
adjudicator at the University of Massachusetts Medical School
Disability Evaluation Services determined that plaintiff met the
Massachusetts Department of Transitional Assistance criteria for
disability based on her depression.
446).
(Tr. 434-435, 440, 445-
The adjudicator noted that “it does not appear med[ical]
impairments would potentially meet SSI standards.”
II.
(Tr. 440).
Work History
At the October 2012 hearing, plaintiff testified that she
last worked in December 2010 as a data entry specialist.
30).
(Tr.
The employment was seasonal and she held the position for
approximately three and a half weeks.
(Tr. 31, 265).
She
testified that her last significant period of employment was
from 2005 to 2007, during which time she worked as a legal
secretary until she was laid off.
(Tr. 31).
According to her
testimony, the longest period of time plaintiff worked in the
same office was three and a half years.
(Tr. 31).
In an
undated disability report, plaintiff reported working as a legal
25
secretary at “various firms” from 1995 to 2007 and for four days
in August 2008.
(Tr. 141-142).
Plaintiff estimated that on a
daily basis while working as a legal secretary she would walk
for two hours, stand for two hours, sit for six hours, write,
type or handle small objects for six hours and handle large
objects for two hours.
(Tr. 143).
Plaintiff stated she
frequently lifted less than ten pounds.
(Tr. 143).
The
heaviest weight she had lifted while in this job was 30 pounds,
according to plaintiff.
(Tr. 143).
In a work history report dated July 11, 2010, plaintiff
also provided information about the tasks and requirements of
her previous employment.
(Tr. 151-161).
Plaintiff detailed
that while performing her most recent previous job as a legal
secretary from 2005 to 2007, she would sit for seven hours,
stand for half an hour during the day, walk for an hour and
write, type or handle small objects for seven hours.
(Tr. 155).
She also recorded that she would lift or carry large file boxes
for half an hour two to three times a week, that the heaviest
weight she had lifted was 20 pounds and that she frequently
lifted ten pounds.
III.
(Tr. 155).
ALJ Hearing
With regard to her physical impairments, plaintiff
testified she sees Dr. Zarins for the degenerative joint disease
of her left knee and Francis Blaire, a chiropractor, for issues
26
with her back and hip.
(Tr. 33).
Plaintiff detailed that she
has been diagnosed with arthritis in her neck, degenerative disc
disease and has had an ovarian cyst removed.
(Tr. 34).
She
additionally has been diagnosed with high blood pressure, which
is controlled with medication.
(Tr. 45).
At the hearing, plaintiff’s attorney had plaintiff identify
each diagnosis relative to her psychological impairments.
Plaintiff identified her depression, her ADD and “Anxiety, posttraumatic stress disorder.”7
(Tr. 32).
Plaintiff’s attorney
then elicited detailed testimony from plaintiff about her
depression, ADD and PTSD and how each condition impacts her
functional limitations making it difficult to return to work.
With respect to her depression, plaintiff’s attorney asked
plaintiff about her symptoms and why the depression made it
difficult for her to return to work.
(Tr. 35).
Plaintiff
responded that her depression causes her to feel “exhausted all
the time” and she does not “have the energy to get out of bed in
the morning.”
(Tr. 35).
She stated that sometimes she is “on
the couch all day” and she “can’t even get into the shower every
day” or brush her teeth daily.
(Tr. 35).
7
She stated, “It’s
As to sleep apnea, plaintiff testified that she did not “know
if that’s psychological.” (Tr. 32). Elsewhere, she testified
that Dr. Nath treats her for the sleep apnea condition.
27
just everything is such a chore” and that she feels this way
seven days a week.
(Tr. 35).
As a result, she has difficulty
cleaning, she “get[s] behind in the laundry, dishes in the sink”
and her “house is not clean.”
(Tr. 35).
Plaintiff reported she
takes care of her cat and she goes to the store “once or twice a
week to buy cat food.”
(Tr. 35).
She does not receive help
from anyone managing her household chores.
takes Effexor for her depression.
(Tr. 36).
(Tr. 36).
Plaintiff
At the time of the
hearing she had been on Effexor for “about four or five months”
and had noticed a slight improvement, though she did not
characterize it as regaining a previous level of functioning,
just that she was “not crying every day.”
(Tr. 36).
She stated
that she sees Dr. Lender once a month and Molena twice a month
for counseling sessions.
(Tr. 33, 37).
Plaintiff also testified about her diagnosis of ADD, for
which she takes Adderall.
(Tr. 37).
She testified that she has
been prescribed medication to manage her ADD for “five or eight
years.”8
(Tr. 37).
When asked if she got “any benefit from the
Adderall, the Ritalin,” plaintiff replied “not too much.”
45).
(Tr.
Plaintiff described the effect of her ADD on her ability
to work as that she “get[s] distracted very easily” and she
8
Plaintiff was previously prescribed Ritalin for her ADD, but
at some point her prescription was switched to Adderall. (Tr.
37).
28
“couldn’t concentrate on the paperwork.”
(Tr. 37).
She would
“avoid the computer and what [she was] working on to go talk
with friends,” “go to the bathroom just to get away from [her]
desk,” take longer breaks or “do anything to get away from the
computer” because it “was just making [her] crazy.”
(Tr. 37).
Plaintiff testified she had so much trouble concentrating that
she “wanted to avoid [her] job so [she’d] call in sick and stay
home.”
(Tr. 37-38).
Plaintiff also stated that her depression
could also have been a factor in her behavior of staying home
from work.
(Tr. 38).
When plaintiff was asked by the ALJ to describe the
symptoms she experiences as a result of her PTSD and how those
symptoms interfered with her ability to function, plaintiff
testified she has trouble sleeping and experiences nightmares.
(Tr. 35, 38).
She also stated that she has night sweats and
awakens “every two hours” during the night.
(Tr. 38).
She
described that she “feel[s] paranoid, like people are talking
about [her], [her] neighbors.”
(Tr. 38).
As a result, she does
not “even want people to look at [her]” and if she goes out, she
does so in the evening.
(Tr. 38).
Her symptoms are aggravated
by thinking about unpleasant events that occurred in the past,
which happens at night.
(Tr. 38-39).
Plaintiff acknowledged that in the past her alcohol use had
been an impairing factor in her not being successful at work.
29
(Tr. 43).
She also stated, however, that she “think[s] [her]
drinking has improved” and, although she could not say “for
sure,” did not “think it would be a problem now.”
(Tr. 43).
Plaintiff testified she often remains in her pajamas all
day.
(Tr. 44).
She has arthritis and has difficulty with
buttons and zippers, so she does not use them.
(Tr. 44).
She
feeds her cat twice a day and loads the dishwasher approximately
once a week.
(Tr. 44).
She prepares her own meals.
(Tr. 44).
Occasionally, she will have lunch with her mother or take her
father, who has cancer, for a drive.
that she helps care for her father.
(Tr. 44).
She testified
She pays her credit card
bills and her father pays for her utilities.
(Tr. 44).
While performing her previous work as a legal secretary,
plaintiff testified she spent about 80% of her time typing or
actively using the computer.
(Tr. 41).
She testified that she
experiences pain and problems with her neck and spine.
40).
(Tr. 39,
She testified that she was “getting arthritis in [her]
hands and [her] joints,” specifically, her wrists, knuckles and
sometimes elbows, and would not be able to type “[l]ike [she]
used to.”
(Tr. 41).
With regards to her neck pain, she
described it as perpetual and “a dull ache and sometimes [she]
hear[s] like the bones cracking.”
(Tr. 39).
She expressed
concern about looking at a computer screen, specifically that it
would need to be raised because, according to plaintiff, looking
30
up and down while using the computer is “just so bad for your
neck.”
(Tr. 40).
She indicated that her lower back pain
worsens if she is “sitting for any period of time” or sitting
throughout the day.
(Tr. 39).
She stated that she did not
think she would be able to sit eight hours a day at a job.
40).
(Tr.
She added that sometimes her hip goes out and then walking
is painful.
(Tr. 39).
Though plaintiff had previously seen a
chiropractor about her neck and back, she has not been able to
see the chiropractor for some time because her insurance does
not cover it and she cannot afford it.
(Tr. 40).
Plaintiff
reported that the chiropractor advised her to “get up every hour
and walk around.”
(Tr. 40).
Plaintiff additionally testified that she had
reconstructive surgery on her knee in 1980.
(Tr. 33).
She has
since been diagnosed with degenerative joint disease in her left
knee.
(Tr. 41).
She further testified, “It seems like every
six months I reinjure my knee and it’s very difficult to walk.”
(Tr. 41).
Plaintiff explained that she walks with a limp and
takes ibuprofen for her knee.
(Tr. 42).
She stated that she
does not believe she could be on her feet for six hours a day.
(Tr. 42).
She also responded that she did not think she could
perform a job that required her to lift up to 20 pounds two to
three hours a day and ten pounds more frequently throughout the
day because of her back and her knuckles.
31
(Tr. 43).
DISCUSSION
I.
Jurisdiction and Standard of Review
Under the Social Security Act, the court has the power to
review a final decision denying disability benefits and, based
on the pleadings and the record, enter “a judgment affirming,
modifying or reversing the decision of the Commissioner of
Social Security with or without remanding the case for
rehearing.”
42 U.S.C. § 405(g).
The ALJ’s findings of fact are
conclusive if supported by substantial evidence.
See Richardson
v. Perales, 402 U.S. 389, 390 (1971); Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001); Manso-Pizarro v. Sec’y of Health and
Human Services, 76 F.3d 15, 16 (1st Cir. 1996); see also Astralis
Condominium Ass’n v. Sec’y of Housing and Urban Dev., 620 F.3d
62, 66 (1st Cir. 2010) (“ALJ’s factual findings are binding as
long as they are supported by substantial evidence in the record
as a whole”).
The ALJ’s findings are not conclusive, however,
if “derived by ignoring evidence, misapplying the law, or
judging matters entrusted to experts.”
F.3d 31, 35 (1st Cir. 1999).
Nguyen v. Chater, 172
“The resolution of conflicts in the
evidence and the ultimate determination of disability are for
the ALJ, not the courts.”
Sanchez v. Barnhart, 230 F.Supp.2d
250 (D.P.R. 2002); Seavey v. Barnhart, 276 F.3d at 9; Rodriguez
v. Sec’y of Health and Human Services, 647 F.2d 218, 222 (1st
Cir. 1981).
Even if the record arguably would support a
32
different conclusion, this court must affirm the ALJ’s decision
as long as it is supported by substantial evidence.
Rodriguez
v. Sec’y of Health and Human Services, 819 F.2d 1, 2 (1st Cir.
1987).
Substantial evidence exists if when “reviewing the evidence
in the record as a whole,” a reasonable mind “could accept it as
adequate to support the Commissioner’s conclusion.”
Rodriguez
v. Sec’y of Health and Human Services, 647 F.2d at 222; see
Musto v. Halter, 135 F.Supp.2d 220, 225 (1st Cir. 2001) (“‘a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support [the
Commissioner’s] conclusion’”) (quoting Ortiz v. Sec’y of Health
and Human Services, 955 F.2d 765, 769 (1st Cir. 1991)).
“Substantial evidence is more than a scintilla of evidence that
a reasonable person could find sufficient to support the
result.”
Musto v. Halter, 135 F.Supp.3d at 225.
The determination of whether the evidence supporting the
ALJ’s finding is substantial “must be made upon an evaluation of
the record as a whole.”
(D.R.I. 1999).
and fully.
Brown v. Apfel, 71 F.Supp.2d 28, 30
The ALJ has a duty to develop the record fairly
See Heggarty v. Sullivan, 947 F.2d 990, 997 (1st Cir.
1991).
33
The ultimate issue is whether plaintiff is disabled within
the meaning of 42 U.S.C. §§ 423(d) and 423(f).
The Social
Security Act defines a disability as:
[I]nability 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 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).
The impairment must be of such
severity that the claimant is not only unable to do her previous
work but “‘considering her age, education, and work experience,
engage in any kind of substantial work which exists in the
national economy.’”
Deblois v. Sec’y of Health and Human
Services, 686 F.2d 76, 79 (1st Cir. 1982) (quoting 42 U.S.C. §
423(d)(2)(A)).
To determine whether a claimant is disabled within the
meaning of the statute, the SSA applies a five step evaluation
process and considers all of the evidence in the claimant’s case
record.
20 C.F.R. §§ 404.1520 & 416.920; see Mills v. Apfel,
244 F.3d 1, 2 (1st Cir. 2001); Goodermote v. Sec’y of Health and
Human Services, 690 F.2d 5, 6 (1st Cir. 1982).
In the first
step, the claimant is not disabled if he or she is currently
engaged in substantial gainful activity.
See Goodermote v.
Sec’y of Health and Human Services, 690 F.2d at 6.
If the
claimant is not engaged in substantial gainful activity, the
decision maker proceeds to the second step to evaluate if the
34
claimant has a severe impairment or combination of impairments.
See id.
An impairment or combination of impairments must meet
the durational requirement and “significantly limit[]
[claimant’s] physical ability to do basic work activities” in
order to be severe.
20 C.F.R. §§ 404.1509 & 416.909; see
Goodermote v. Sec’y of Health and Human Services, 690 F.2d at 7.
If the claimant has a severe impairment or combination of
impairments, then the analysis proceeds to the third step and
the ALJ determines if the claimant’s severe impairment or
combination of impairments meets or is medically equivalent to
one of the listed impairments in Appendix 1, Subpart P, Part 404
of the Code of Federal Regulations.
20 C.F.R. §§ 404.1520(d) &
416.920(a)(4)(iii); see Goodermote v. Sec’y of Health and Human
Services, 690 F.2d at 7.
If the impairment or combination of
impairments medically equals a listed impairment then the
claimant is disabled; if not, the analysis proceeds to step
four.
See Goodermote v. Sec’y of Health and Human Services, 690
F.2d at 7.
At step four, the ALJ must determine if the claimant can
perform any of his or her previous relevant work by comparing
the claimant’s current mental and physical residual functional
capacity (“RFC”) with the mental and physical demands of
previous work.
Manso-Pizzaro v. Sec’y of Health and Human
Services, 76 F.3d at 17.
After determining the claimant’s RFC,
35
step four requires the ALJ to:
(1) ascertain “the physical and
mental demands” of the claimant’s past relevant work; and (2)
determine whether the claimant’s “RFC would permit a return to”
the past relevant work.
SSR Ruling 82-62, 1982 WL 31386, at *4
(1982) (“SSR 82-62”); Hidalgo-Rosa v. Colvin, 40 F.Supp.3d 240,
244 (D.P.R. 2014).
If the claimant can perform any of her past
relevant work, the claimant is not disabled.
See Goodermote v.
Sec’y of Health and Human Services, 690 F.2d at 7.
In the first
four steps, the burden to provide evidence and prove his or her
impairment and inability to perform prior work rests with the
claimant.
See Manso-Pizzaro v. Sec’y of Health and Human
Services, 76 F.3d at 17; Freeman v. Barnhart, 274 F.3d 606, 608
(1st Cir. 2001) (“applicant has the burden of production and
proof at the first four steps of the process”).
If the claimant successfully satisfies his or her burden
through step four, meaning the claimant is determined not to be
able to perform any of his or her relevant prior employment, the
burden shifts to the Commissioner to show the existence of a
significant number of jobs in the national economy the claimant
could perform.
20 C.F.R. §§ 404.1520(g) & 416.920(g); Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote v. Sec’y of
Health and Human Services, 690 F.2d at 7; Rosado v. Sec’y of
Health and Human Services, 807 F. 2d 292, 294 (1st Cir. 1986).
In making this determination at step five, the decision maker
36
must consider the claimant’s RFC, age, education and work
experience.
20 C.F.R. §§ 404.1520(g) & 416.920(g).
The
claimant is not disabled if jobs the claimant can do exist in
significant numbers in the national economy.
20 C.F.R. §§
404.1520, 416.920, 404.1545 & 416.945.
If at any step in the sequential process there is a finding
that the claimant is disabled and there is medical evidence of
drug or alcohol abuse, the decision maker must determine if such
abuse was a “material contributing factor to the disability
determination.”
42 U.S.C. § 423(d)(2)(C).
If the drug or
alcohol abuse is a material contributing factor, then the
claimant is not disabled.
II.
ALJ’s Decision and Analysis
At step one, the ALJ determined plaintiff had not engaged
in substantial gainful activity since the alleged onset of her
disability.
(Tr. 12-13).
He determined at step two that
plaintiff suffers from the severe impairments of “mild left knee
degenerative joint disease, obesity, depression, anxiety, and
alcohol abuse.”
(Tr. 13).
He found plaintiff to have the
impairments of “hypertension, ovarian cysts, and a spinal
disorder,” which he determined “do not cause the claimant more
than minimal functional limitations and are therefore
nonsevere.”
(Tr. 14).
He additionally found there was no
37
evidence in the record to support plaintiff’s claim of stomach
pain.
(Tr. 15).
At step three, the ALJ determined that plaintiff’s “severe
depressive disorder, including her alcohol abuse, [met]
listings, 12.04 and 12.09” of 20 C.F.R. Part 404, Subpart P,
Appendix 1.
(Tr. 15).9
With respect to listings 12.04 and
12.09, he found the “‘paragraph A’” criteria was satisfied
because plaintiff has major depressive disorder and alcohol
dependence and cited to the diagnoses by Dr. Hurd and Dr. Gould.
(Tr. 15).
Still including her alcohol use, the ALJ next
determined that, with regard to the “paragraph B” criteria,
plaintiff “has mild restriction” in activities of daily living,
“marked difficulties” in social functioning, “marked
difficulties” in maintaining concentration, persistence or pace
9
Plaintiff points out, correctly, that at step three the ALJ
did not expressly address plaintiff’s severe anxiety impairment
or determine whether it met listing 12.06 as an “anxiety-related
disorder.” That said, in the section of the decision addressing
step two with alcohol abuse, the ALJ summarized Dr. Gould’s
diagnosis of an anxiety disorder and the ALJ referred to it
again when considering the severity of plaintiff’s remaining
limitations without alcohol abuse. (Tr. 13, 17). The ALJ also
expressly recognized the PTSD diagnosis by Dr. Hurd as well as
the more remote PTSD diagnoses by Dr. Gardos and Pransky. (Tr.
13). “The Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (‘DSM–IV’), classifies PTSD as an
anxiety disorder.” National Organization of Veterans’
Advocates, Inc. v. Secretary of Veterans Affairs, 669 F.3d 1340,
1343 (C.A.Fed. 2012).
38
and no episodes of decompensation.10
(Tr. 16).
The ALJ
therefore determined that with alcohol abuse plaintiff was under
a disability at step three.
(Tr. 11, 15).
At step three with respect to the finding of mild
limitations in activities of daily living, the ALJ relied on Dr.
Gould’s notes that “claimant has no difficulty driving an
automobile, attending her meetings and appointments, maintaining
her own home, and performing her household chores.”
(Tr. 16).
He also utilized information from the reports of Dr. Senger and
Dr. Lender.
(Tr. 16).
In making his determination that plaintiff has “marked
difficulties” in social functioning at step three, the ALJ cited
to evidence and opinions from the reports of Dr. Hurd, Dr.
Senger, Dr. Kriston, Modena and Dr. Lender.
(Tr. 16).
The
ALJ’s discussion of plaintiff’s social functioning depicted by
these physicians focused on plaintiff’s alcohol use.
Thus, the
ALJ noted that plaintiff “was fired for alcoholism three times,”
“drinks about 4-8 ‘huge glasses’ of wine, beer or vodka[] a few
times a week,” has “a DUI arrest and three other arrests for
10
When considering only listing 12.04, an affective disorder
leads to a disability finding if a claimant meets the paragraph
A criteria and has “marked” limitations in two of the three
paragraph B criteria or repeated episodes of decompensation.
See 20 C.F.R. §§ 416.920a, 404.1520a; Hilkemeyer v. Barnhart,
380 F.3d 441, 446 (8th Cir. 2004).
39
‘drunk and disorderly’ conduct” and “does not attend AA
meetings,” as reflected in Dr. Senger’s report.
363).
(Tr. 16, 362-
Dr. Lender noted similar findings and the ALJ explicitly
cited Dr. Lender’s March 2012 finding that, “Most of
[plaintiff’s] relatives and friends distance themselves from
[her], due to her unemployment and drinking habits.”
582).
(Tr. 16,
Finally, the ALJ noted plaintiff’s “history of black
outs, with others complaining about her drinking,” and her
admission that she “is an alcoholic,” as stated in Modena’s
notes from the October 2012 appointment.
(Tr. 16, 574).
At
this step in the sequential process, the ALJ did not cite or
rely on the findings made by Dr. Gould, including his finding
that plaintiff’s social functioning was mild.
Likewise, the ALJ
did not cite or rely on Dr. Davidson’s finding of a mild
limitation.
(Tr. 16).
In finding “marked difficulties” in maintaining
concentration, persistence or pace, the ALJ cited to evidence
and opinions form the reports of Dr. Senger, Dr. Lender and
Modena.
(Tr. 16).
of alcohol abuse.
Here again, the ALJ focused on the reports
He cited findings in Dr. Senger’s September
2011 consultive examination report that plaintiff acknowledged
her alcohol problem and has “continuing untreated alcohol
dependence.”
(Tr. 16, 362).
In addition to noting the three
terminations for alcohol, the ALJ cited plaintiff’s history of
40
working in “50 work places, and every time she would work for 34 months” and then “start to call out sick and lose her job,” as
noted by Dr. Lender in 2012.
(Tr. 16, 582).
The ALJ
additionally noted Modena’s description that plaintiff presented
with “depression and binge drinking” and did “not want to stop
drinking.”
(Tr. 16, 573).
In arriving at a finding of a marked
limitation, the ALJ again do not rely on the “mild” limitations
found by Dr. Gould or Dr. Davidson.
Considering these findings,
specifically that plaintiff suffers from marked restrictions in
the above two categories, the ALJ therefore determined the
paragraph B criteria were satisfied when including her alcohol
abuse.
(Tr. 15-16).
With respect to the above findings, plaintiff repeatedly
argues that the ALJ “rejected the opinions” of Dr. Gould and Dr.
Davidson, the non-examining psychologists, “finding, instead,
that Plaintiff’s depression and anxiety constitute severe
impairments.”
(Docket Entry # 24).
did not reject these opinions.
In point of fact, the ALJ
Nowhere does the ALJ attribute
Dr. Gould’s or Dr. Davidson’s finding “little weight” or “no
weight.”
Rather, in determining severity, the ALJ explained
that Dr. Gould found plaintiff had “a depressive disorder, an
anxiety disorder, and a substance addiction disorder.”
13).
(Tr.
The ALJ did not recite or otherwise rely upon Dr. Gould’s
functional limitations findings at step two.
41
See Evangelista v.
Secretary of Health and Human Services, 826 F.2d 136, 144 (1st
Cir. 1987) (recognizing that ALJ is entitled to “piece together
the relevant medical facts from the findings and opinions of
multiple physicians”).
As explained above, the ALJ relied on
the opinions of other medical sources at step three to arrive at
the marked limitations in social functioning and concentration,
persistence or pace.
Accordingly, there was nothing
contradictory when the ALJ later relied on Dr. Gould’s opinions
and findings in determining that, without alcohol abuse,
plaintiff’s mental impairments were not severe.
The ALJ did not
reject the opinion of Dr. Davidson for the simple reason that he
did not cite or rely on Dr. Davidson’s opinion in the decision.
Plaintiff’s related argument that “the ALJ made no finding
that he gave any weight to the opinions of either Dr. Gould or
Dr. Davidson” in violation of SSR 96-6p, 1996 WL 374180 (July 2,
1996) (“SSR 96-6p”), is not well taken.
Dr. Davidson completed
a PRTF nine months after Dr. Gould and came to the same
conclusions as Dr. Gould regarding plaintiff’s mild functional
limitations.
Both opinions support a finding of nonseverity and
a finding that plaintiff is not disabled.
The ALJ’s failure to
cite Dr. Davidson’s opinion was therefore, at most, harmless
error.
See Ward v. Commissioner of Social Security, 211 F.3d
652, 656 (1st Cir. 2000). As explained in Ward:
42
While an error of law by the ALJ may necessitate a remand,
see Da Rosa, 803 F.2d at 26, a remand is not essential if it
will amount to no more than an empty exercise. See Dantran,
Inc. v. United States Dep’t of Labor, 171 F.3d 58, 73 (1st
Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 504 (2nd Cir.
1998) (“Where application of the correct legal standard
could lead to only one conclusion, we need not remand.”).
Id.
Here, Dr. Davidson’s opinions as to the existence of
depression, a substance addiction disorder and the paragraph B
functional limitations duplicate the findings by Dr. Gould but
without Dr. Gould’s detailed explanations and support.
As an
aside, Dr. Davidson’s opinion as to a dysthmic disorder is not
carried over into the commentary section and is otherwise
duplicated and cumulative of the dysthmic disorder diagnosed by
Dr. Hurd and Dr. Senger and considered by the ALJ.
As to Dr. Gould, SSR 96-6p instructs that ALJs “may not
ignore” the opinions of state agency psychologists “and must
explain the weight given to these opinions in their decisions.”
SSR 96-6p, 1996 WL 374180, at *1; see also 26 C.F.R. §§ 404.1527
& 416.927.
SSR 96-6p further requires the ALJ to consider the
findings of state agency psychologists regarding “the nature and
severity of an individual’s impairment(s) as opinions of
nonexamining . . . psychologists.”
at *2.
SSR 96-6p, 1996 WL 374180,
Here, although the ALJ did not use the phrase “weight”
to describe his reliance on the opinions and functional
limitations found by Dr. Gould, it is evident that the ALJ
afforded the findings significant weight because he cited and
43
discussed them at length in making the key change from mild to
marked in social functioning and in maintaining concentration,
persistence or pace.
The ALJ’s reliance on Dr. Gould’s findings vis-à-vis
nonseverity (Tr. 19) and RFC (Tr. 22) was entirely appropriate.
As explained in the relevant regulations cited in SSR 96-6p,
“The better an explanation a source provides for an opinion, the
more weight we will give that opinion.”
20 C.F.R. §
404.1527(c)(3), (e); 20 C.F.R. § 416.927(c)(3), (e).
Dr. Gould
discussed and summarized the medical record at length in the
commentary section of the PRTF (Tr. 282) and the ALJ cited and
relied upon these detailed findings (Tr. 19, 22).
After finding a disability at step three with alcohol
abuse, the ALJ determined that there was medical evidence of a
substance abuse disorder, i.e., alcoholism.11
Accordingly, he
considered whether the “substance use disorder [was] a
contributing factor material to the determination of
disability.”
(Tr. 12).
Initially, the ALJ revisited the
11
The record provides substantial evidence for the finding.
(Tr. 265-266, 572, 576-583). In fact, Dr. Lender repeatedly
diagnosed plaintiff as having alcohol dependence under code
303.90 in the Diagnostic and Statistical Manual of Mental
Disorders, commonly referred to as the DSM-IV. See Darst v.
Interstate Brands Corp., 512 F.3d 903, 906 & n.5 (7th Cir. 2008);
Warren v. Barnhart, 2005 WL 1491012, at *9 & n.27 (E.D.Pa. June
22, 2005) (discussing in depth the definition of a substance use
disorder under the DSM-IV).
44
determination of severity albeit this time determining whether
plaintiff’s physical and mental impairments were “severe” if she
stopped abusing alcohol.
As to physical impairments, the ALJ
found that, if plaintiff stopped using alcohol, she would still
have the severe physical impairments of mild left knee
degenerative joint disease and obesity and the nonsevere
physical impairments of hypertension, ovarian cysts and a spinal
disorder.
(Tr. 17-18).
The ALJ next looked at the four paragraph B functional
areas to determine “the extent to which the claimant’s mental
limitations would remain if her alcohol abuse was stopped.”
(Tr. 18).
Examining and discussing the record, he concluded
that plaintiff would have only mild limitation in activities of
daily living, mild limitation in social functioning and mild
limitation in concentration, persistence or pace, while
experiencing no episodes of decompensation.
(Tr. 18-20).
The
ALJ therefore changed his finding of marked limitations in the
areas of social functioning and concentration, persistence or
pace when plaintiff was using alcohol to mild limitations when
plaintiff stopped using alcohol.12
12
In arriving at these
Plaintiff argues that the ALJ, based on his lay
interpretation of the evidence, concluded that plaintiff’s
mental impairments were nonsevere in the absence of alcohol
abuse even though he determined that the depression with alcohol
abuse met listings 12.04 (affective disorder) and 12.09
45
determinations, the ALJ considered Dr. Gould’s opinion that
plaintiff had an anxiety disorder because the ALJ recited the
finding at the outset of the discussion.
(Tr. 17) (“Dr. Gould
found the claimant has . . . an anxiety disorder”).13
In the area of social functioning, the ALJ relied on
opinions and findings by Dr. Hurd, Dr. Gould, Dr. Senger and Dr.
Lender.
Such a wide range of physicians evidences that the ALJ
combed through and carefully considered the entire record.
Dr.
Hurd, who examined plaintiff at a time two weeks after plaintiff
last used alcohol, noted that plaintiff “loses jobs when she
calls in sick too often,” “work becomes boring for her,” “the
novelty wears off” and she lacks motivation to go to work.
265).
(Tr.
The ALJ cited all of these findings in determining
plaintiff’s social functioning was mild.
He additionally relied
on the detailed notes and reasoning in the PRTF by Dr. Gould,
who likewise recited and relied in part on the findings of Dr.
Hurd.
Dr. Gould classified plaintiff as having a mild
(substance addiction disorder). In other words, it is illogical
to find that plaintiff had a depressive disorder that met
listing 12.04 with alcohol abuse and then simultaneously
conclude that the depression impairment was not even severe
without alcohol abuse, according to plaintiff. A close
comparison of the differences in the ALJ’s findings is therefore
warranted.
13
Previously, when including her alcohol abuse, the ALJ
determined that plaintiff had a “severe” anxiety disorder at
step two.
46
limitation in the area of social functioning.
(Tr. 280).
As
discussed by the ALJ, Dr. Gould recognized that plaintiff has no
difficulty “attending meetings and appointments” and her
function report reflected that “she was depressed because she
could not find work.”
(Tr. 19, 282).
Dr. Senger, as noted by
the ALJ, found that “plaintiff sees friends occasionally and her
mother frequently.”
(Tr. 19, 362).
In fact, “she goes shopping
and out to dinner with her mother three times a week” and takes
the bus without difficulty, as stated by Dr. Senger and recited
by the ALJ in his decision vis-à-vis plaintiff’s social
functioning without alcohol.
The ALJ also pointed out, as
supported in the record, that plaintiff “spends most of her time
helping” care “for her father, who has cancer.”
(Tr. 19, 571).
The ALJ further noted Dr. Senger’s positive description of
plaintiff as relating very well during the examination.14
The
ALJ found additional support for only a mild limitation from Dr.
Lender’s notes.
These notes, cited and by and large quoted by
the ALJ, depict plaintiff’s depression in 2012 as “improving”
14
Dr. Senger described plaintiff as “personable, pleasant,
engaging” and relating “easily and well here” with “good eye
contact.” (Tr. 363). Dr. Hurd described plaintiff during his
December 2010 examination as “alert and cooperative” and as
maintaining eye contact and having an appropriate affect. (Tr.
266). Dr. Lender, plaintiff’s treating psychiatrist, likewise
noted plaintiff’s “good eye contact” throughout her treatment
notes.
47
and plaintiff as being “more active,” “more motivated,” “fairly
groomed,” “reliable,” “compliant” and “relatively stable.”
(Tr.
19, 572, 576).
In the area of concentration, persistence or pace, which
the ALJ also changed from a marked limitation when plaintiff was
abusing alcohol to a mild limitation if plaintiff stopped her
alcohol abuse, the ALJ relied on a wealth of evidence in the
record, including opinions and findings by Dr. Gould, Dr.
Senger, Dr. Hurd, Dr. Lender and Sheridan.
Dr. Gould classified
plaintiff as having a mild limitation in the area of
concentration, persistence or pace.
In lieu of simply checking
a box, however, he addressed and supported the finding in
section IV of the PRTF.15
In arriving at the mild limitation,
the ALJ relied and recited Dr. Gould’s findings that plaintiff
“has no difficulty driving an automobile, attending her meetings
and appointments, maintaining her home and performing household
chores,” a level of activity and functioning that suggested “she
has the concentration, attention, focus and persistence needed
for work-related activities,” as stated by the ALJ in repeating
Dr. Gould’s findings.16
(Tr. 19, 282).
15
Dr. Senger likewise
As previously noted, regulations afford greater weight to an
opinion that provides an explanation. See 20 C.F.R. §
404.1527(c)(3), (e); 20 C.F.R. § 416.927(c)(3), (e).
16
The ALJ included various work related findings in discussing
the nonsevere mental limitations relative to the paragraph B
48
reported “full self care,” shopping and chores, as noted by the
ALJ.
(Tr. 19, 363).
Like Dr. Hurd, who scored plaintiff as 30
out of 30 on mini-mental status examination at a time when she
had not used alcohol for the last two weeks (Tr. 265-266), Dr.
Senger scored plaintiff as a perfect 30 on the same examination,
as noted by the ALJ (Tr. 20, 363).
Dr. Senger found that
plaintiff had the ability to “comprehend, remember, and carry
out instructions,” a finding relied upon the ALJ.
The ALJ
additionally recognized that plaintiff had a college degree and
“was working fairly regularly” and, for support, cited this
finding by Dr. Senger.
In the same sentence, Dr. Senger added
the caveat that plaintiff had worked “fairly regularly, except
for getting fired for alcoholism three times over the years.”
(Tr. 19, 363).
In addition, the ALJ again relied on Dr.
Lender’s notes that describe plaintiff’s depression as
“improving” and plaintiff as “more active,” “motivated,
compliant, and relatively stable.”
(Tr. 19, 572, 576).
In light of these opinions and findings, the ALJ determined
that plaintiff’s mental limitations were nonsevere if plaintiff
stopped abusing alcohol.
Thereafter, he incorporated all of the
foregoing paragraph B findings and analysis made if plaintiff
criteria. Thereafter, he incorporated the paragraph B mental
limitations and findings without alcohol abuse into an RFC
assessment if plaintiff stopped the alcohol abuse. (Tr. 18-20).
49
stopped her alcohol abuse into the residual functional capacity
(“RFC”) plaintiff would have if she stopped the alcohol abuse.
(Tr. 20).
Before outlining the RFC, the ALJ determined that
plaintiff would have no impairment or combination of impairments
that met or medically equaled any listing in Appendix 1, Subpart
P, Part 404 of the Code of Federal Regulations if she stopped
her alcohol use.
(Tr. 20).
The ALJ then proceeded to determine plaintiff’s RFC if she
“stopped her alcohol abuse.”
(Tr. 20).
He found plaintiff had
the RFC “to perform sedentary work as defined in 20 CFR
404.1567(a) and 416.957(a) except for the following limitations
and restrictions:
she can occasionally climb, balance, stoop,
kneel, crouch or crawl; she can occasionally push foot controls
with her left lower extremity; and she should avoid hazards,
such as machinery and heights.”
(Tr. 20).
Sedentary work is
defined as involving:
lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers,
and small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.
20 C.F.R. §§ 404.1567(a) & 416.967(a).
In arriving at the above RFC, the ALJ considered the mental
impairment of depression because he stated that the RFC
“reflects the degree of limitation I have found in the
50
‘paragraph B’ mental function analysis.”
(Tr. 20).
As noted
above, the significant changes from the step three paragraph B
findings with alcohol abuse and the RFC findings without alcohol
abuse were the rating changes from “marked” to “mild” for social
functioning and concentration, persistence or pace.
As framed,
the above RFC if plaintiff stopped abusing alcohol does not
include any nonexertional, mental limitations.
The ALJ wrote that in arriving at the RFC decision, he gave
“great weight” to the “treating source” opinion of Dr. Zarins
“to show that the claimant is capable of performing a range of
sedentary level work, with limitations.”17
(Tr. 21).
He also
gave the findings of Dr. Kriston “great weight” to show the
same.
The ALJ explained that he gave the findings of the state
welfare agency “little weight, as the standards applied by the
state agency are not the same used by Social Security.”18
(Tr.
21).
He also addressed the major depressive disorder found by
Dr. Lender.
(Tr. 22).
The ALJ gave the October 2012 opinion of
Dr. Lender, a treating psychiatrist, that plaintiff had “several
17
As previously noted, Dr. Zarins opined that plaintiff is
capable of “performing a range of sedentary level work, with
limitations.” (Tr. 21).
18
The determination was appropriate. See generally McDonough
v. U.S. Social Security Administration, Acting Commissioner,
2014 WL 2815782, at *13 (D.N.H. June 23, 2014) (“‘state
determination is not, in and of itself, evidence of
disability’”).
51
markedly limited work-related functional limitations, little
weight.”
(Tr. 22, 569-570).
He rejected the opinion because
Dr. Lender’s treating notes were “inconsistent with such
disabling limitations.”19
(Tr. 22).
The ALJ also afforded “little weight” to the opinions of
Pransky, who treated plaintiff sporadically between 1993 and
2000, and Dr. Gardos, who last treated plaintiff in 1999, given
the “lack of time relevance.”
(Tr. 13).
Pransky and Dr. Gardos
each diagnosed plaintiff as having a dysthymic disorder and
PTSD.
The ALJ explained that Dr. Gardos last saw plaintiff
almost a decade before the August 2009 onset date.
Similarly,
the ALJ pointed out that Pransky saw plaintiff only once in the
past ten years.
Although both Dr. Gardos and Pransky are former
treating sources, neither medical source had a longitudinal
picture of plaintiff’s recent and disabling impairments.
See 20
C.F.R. §§ 416.927(c) & 404.1527(c) (“the longer a treating
source has treated you and the more times you have been seen by
19
Plaintiff submits that the ALJ erred by rejecting the
treating source opinion of Dr. Lender in concluding that
plaintiff’s alcohol abuse was a material contributing factor and
that, absent alcohol abuse, plaintiff’s depressive disorder was
not disabling. Plaintiff asserts that substantial evidence is
lacking because no medical evidence supports the ALJ’s
conclusion that plaintiff’s mental impairments without alcohol
abuse were nonsevere. In particular, Dr. Lender’s diagnosis of
a major depressive disorder and marked limitations in work
related functions (Tr. 569-570) directly contradicted the ALJ’s
RFC that plaintiff had no mental impairments in the absence of
alcohol, according to plaintiff.
52
a treating source, the more weight we will give to the source’s
medical opinion”).
Dr. Lender, plaintiff’s current treating
psychiatrist, did not diagnose plaintiff as having PTSD or any
other type of anxiety disorder.
In light of the above, the
ALJ’s decision to discount the PTSD diagnoses by Dr. Gardos and
Pransky was appropriate.
See 20 C.F.R. §§ 416.927(c)(4) &
404.1527(c)(4).
The ALJ found plaintiff “less than fully credible.”
22-23).
(Tr.
He found her “statements concerning the intensity,
persistence and limiting effects of her symptoms are not fully
credible to the extent they are inconsistent with the residual
functional capacity assessment.”20
(Tr. 23).
Applying the RFC, the ALJ determined at step four that if
plaintiff “stopped her alcohol abuse, she would be able to
perform her past relevant work as a secretary,” which was “a
skilled, sedentary job.”
(Tr. 23).
The ALJ found that, “This
work does not require the performance of work-related activities
precluded by her residual functional capacity that she would
have if she stopped her alcohol abuse.”
A.
(Tr. 23-24).
Materiality and RFC
20
Wisely, plaintiff does not challenge the ALJ’s thorough and
well supported discussion and determination as to her
credibility. (Tr. 22-23).
53
Plaintiff maintains that the ALJ’s determination that
plaintiff’s alcohol abuse was material to the finding of
disability was not supported by substantial evidence.
Entry ## 16, 24).
(Docket
Plaintiff submits that the record does not
contain “any medical opinion that expressed the conclusion that
Plaintiff would have no mental limitation in the absence of
“alcohol abuse.”
(Docket Entry # 16, p. 4).
Instead, all of
the opinions addressed plaintiff’s limitations with alcohol
abuse.
Plaintiff further contends that the ALJ ignored the
finding that plaintiff’s anxiety was a severe impairment at step
two and the depressive disorder with alcohol abuse at step three
when he determined that the depression, without alcohol abuse,
was only a nonsevere mental impairment.
Plaintiff asserts that
none of the medical opinions in the record addressed what mental
limitations would remain from the severe anxiety and the
depressive disorder (listing 12.04) if plaintiff stopped the
alcohol abuse.
Plaintiff further argues that the ALJ’s RFC finding that
plaintiff had no mental limitations related to her anxiety or
depression if she stopped using alcohol lacked substantial
evidence.
Plaintiff notes, correctly, that Dr. Gould, Dr. Hurd
and Dr. Senger’s opinions were all based on plaintiff’s mental
impairments and limitations with alcohol use.
According to
plaintiff, there was no medical evidence or opinion assessing
54
her RFC functional limitations without alcohol use.
Plaintiff
also points out that Dr. Lender’s medical source statement
outlining the markedly limited work related qualities “did not
even mention” alcohol abuse.
(Docket Entry # 16).
The ALJ’s
erroneous determination that the depression was nonsevere
without alcohol use (previously determined to meet listing 12.04
with alcohol abuse) and the failure to consider her anxiety
(previously determined “severe” with alcohol use) led to the
flawed RFC assessment without alcohol use and a lay
interpretation of the medical evidence, according to plaintiff.
(Docket Entry ## 16, 24).
In addition, plaintiff cites to Social Security Ruling 132p, 2013 WL 621536 (Feb. 20, 2013) (“SSR 13-2p”), for the
premise that alcohol abuse is not material when “there is no
medical evidence that establishes that the alcohol abuse results
in marked limitations.”
# 15, p. 5).
(Docket Entry # 24, p. 2) (Docket Entry
The express language of SSR 13-2p does not contain
this requirement.
Plaintiff additionally points out, correctly,
that SSR 13-2p requires evidence to establish “‘that a claimant
with a co-occurring mental disorder(s) would not be disabled in
the absence of DAA.’” (Docket Entry # 16) (quoting SSR 13-2p,
2013 WL 621536, at *9).
Defendant argues that the ruling does
not apply because it took effect on March 22, 2013, several
months after the ALJ’s November 2012 decision.
55
Defendant also
submits that the ALJ’s decision is not inconsistent with SSR 132p.
Defendant maintains that substantial evidence supports the
ALJ’s determination that plaintiff’s mental impairments would
not be “severe” in the absence of alcohol abuse.
# 22, p. 11).
(Docket Entry
To that end, defendant cites the medical
evaluations by Dr. Gould, Dr. Davidson[NL1], Dr. Hurd, and Dr.
Senger to show that plaintiff had only mild limitations in the
paragraph B categories of mental functioning.
The opinions of
Dr. Gould, Dr. Hurd, Dr. Senger and Dr. Davidson are also
consistent with the ultimate conclusion that plaintiff is not
disabled, according to defendant.
(Docket Entry # 22[NL2]).
In 1996, Congress amended the Social Security Act to deny
disability benefits to an individual if it is found that his or
her “alcoholism or drug addiction” is a “material contributing
factor to the disability determination.”
423(d)(2)(C).21
42 U.S.C. §
Under the statute, if a claimant is determined
to be disabled and there is medical evidence of drug or alcohol
21
The statute provides:
An individual shall not be considered to be disabled
for purposes of this subchapter if alcoholism or drug
addiction would (but for this subparagraph) be a
contributing factor material to the Commissioner’s
determination that the individual is disabled.
42 U.S.C. § 423(d)(2)(C).
56
abuse, then the ALJ “must go one step further” and make a
finding regarding the materiality of the drug or alcohol abuse
to the finding of disability.
35 (D.R.I. 1999).
Brown v. Apfel, 71 F.Supp.2d 28,
In determining whether or not an individual’s
substance abuse is material to the determination of disability,
the “key factor” is if an individual would still be found to be
disabled if she “stopped using drugs or alcohol.”
20 C.F.R. §§
404.1535(b)(1) & 416.935(b)(1); Brown v. Apfel, 71 F.Supp.2d at
35.
In adjudicating the materiality of a claimant’s alcohol or
substance abuse, the applicable regulations require the ALJ to
determine “which of [the claimant’s] current physical and mental
limitations . . . would remain if [the claimant] stopped using
drugs or alcohol.”
20 C.F.R. §§ 404.1535(b)(2) & 416.935(b)(2).
Next, the ALJ must “then determine whether any or all of
[claimant’s] remaining limitations would be disabling.”
C.F.R. §§ 404.1535(b)(2) & 416.935(b)(2).
20
Overall, if in the
absence of drug or alcohol abuse the claimant would be
determined not to be disabled, then claimant’s alcohol or drug
abuse is material; however, if claimant would still be
considered disabled even if he or she stopped using drugs or
alcohol, then the substance use will be deemed not material.
20
C.F.R. §§ 404.1535(b)(2) & 416.935(b)(2); see Cage v. Comm’r of
Social Security, 692 F.3d 118, 123 (2nd Cir. 2012); Brueggemann
57
v. Barnhart, 348 F.3d 689, 693 (8th Cir. 2003); Frazier v.
Astrue, 2010 WL 5866215, at *6 (D.Mass. Feb. 22, 2010).
“The question of materiality of drug addiction or
alcoholism is reserved to the Commissioner.”
Velazquez v.
Astrue, 2013 WL 1415657, *11 (D.R.I. Feb. 22, 2013); accord SSR
13-2p, 2013 WL 621536, at *16 (“[t]he finding about materiality
is an opinion on an issue reserved to the Commissioner”).
The
claimant bears the burden of proving his or her alcohol abuse is
not a material factor contributing to the determination of
disability.
See Cage v. Comm’r of Social Security, 692 F.3d at
123; Brueggemann v. Barnhart, 348 F.3d at 693; Frazier v.
Astrue, 2010 WL 5866215, at *6 (“[t]he burden of proving
alcoholism was not a contributing factor to the disability falls
on [plaintiff]”); see also SSR 13-2p, 2013 WL 621536, at *4
(plaintiff “continues to have the burden of proving disability
throughout the drug addiction or alcoholism materiality
analysis”).
Substantial evidence must support all of the ALJ’s findings
through all stages of the disability determination.
See Manso-
Pizarro v. Sec’y of Health and Human Services, 76 F.3d at 16;
Evangelista v. Sec’y of Health and Human Services, 826 F.2d 136,
144 (1st Cir. 1987).
Considering this consistent requirement, it
would be illogical for the determination of drug or alcohol
abuse (“DAA”) materiality and plaintiff’s projected RFC in the
58
absence of drug or alcohol abuse not to be subject to the same
standard.
See Brueggemann v. Barnhart, 348 F.3d at 695 (“[e]ven
though the task is difficult, the ALJ must develop a full and
fair record and support his conclusion with substantial evidence
on this point just as he would on any other”); see also Cage v.
Comm’r of Social Security, 692 F.3d at 126-127 (finding
“substantial evidence” to support “ALJ’s determination that Cage
would not be disabled were she to discontinue her drug and
alcohol abuse”).
Medical evidence to support a finding that claimant would
not be disabled absent drug or alcohol abuse can be gathered
from a period or periods of abstinence through observations and
medical findings about what “impairment-related limitations
remained after the acute effects of drug and alcohol use
abated.”
SSR 13-2p, 2013 WL 621536, at *12; see Velazquez v.
Astrue, 2013 WL 1415657, at *11; Evans v. Astrue, 2012 WL
4482354, at *1-2 (D.R.I. Sept. 26, 2012).
Where “the claimant
never achieves sobriety, the materiality determination will
necessarily be hypothetical and therefore more difficult, but
the claimant cannot avoid a finding of no disability simply by
continuing substance abuse.”
Velazquez v. Astrue, 2013 WL
1415657, at *11; see Brueggemann v. Barnhart, 348 F.3d at 695
(“when the claimant is actively abusing alcohol or drugs, this
determination will necessarily be hypothetical and therefore
59
more difficult than the same task when the claimant has
stopped”); Evans v. Astrue, 2012 WL 4482354, at *2.
In the case at bar, plaintiff does not argue that there
must be a period of abstinence to find materiality thereby
waiving any such contention.
Inc., 620 F.3d at 44.
See Coons v. Industrial Knife Co.,
Rather, plaintiff insists that there is
no evidence, including no medical opinion, that assesses and
determines plaintiff’s remaining mental limitations and
impairments without alcohol abuse.
The ALJ’s reliance on the
opinions assessing both her depression and her alcohol abuse
fails to address this issue and therefore does not provide
substantial evidence for the ALJ’s materiality finding,
according to plaintiff.
In addition, where, as here, there is a
co-occurring mental disorder, namely, an affective disorder of
depression, plaintiff insists there must be evidence that she
would not be disabled in the absence of DAA.
(Docket Entry #
16, p. 8) (quoting SSR 13-2p, 2013 WL 621536, at *9).
Substantial evidence to support the materiality finding is
required.
See Cage v. Comm’r of Social Security, 692 F.3d at
126-127; Brueggemann v. Barnhart, 348 F.3d at 695.
The Second
Circuit in Cage rejected an argument strikingly similar to
plaintiff’s argument that there can be no materiality finding
unless there is a medical opinion that separates and addresses
what limitations remain without alcohol use.
60
See Cage v. Comm’r
of Social Security, 692 F.3d at 126.
The facts in Cage are also
strikingly similar to those in the case at bar.22
Cage initially
argued that “‘an ALJ cannot find that drug or alcohol use is a
contributing factor where there is no medical opinion addressing
the issue.’”
Id.
The Second Circuit rejected the argument
because “such a rule, found nowhere in the U.S.Code or C.F.R.,
is unsound.”
Id.
The court reasoned that any such rule “would
unnecessarily hamper ALJs and impede the efficient disposition
of applications in circumstances that demonstrate DAA
22
Cage suffered from a variety of mental conditions including
drug and alcohol abuse. Id. at 120, 127. The ALJ in Cage:
made the following pertinent findings: At step three, he
determined that Cage was per se disabled under Listings
12.04 (affective disorder), 12.08 (personality disorder)
and 12.09 (substance addiction disorder). See 20 C.F.R.
pt. 404, subpt. P, app. 1 (setting forth the Listings).
Each of those Listings required findings that Cage suffered
from two of the four so-called “Paragraph B” symptoms. The
ALJ made such findings, concluding that Cage suffered
marked difficulties in social functioning and with regard
to concentration, persistence or pace. The ALJ then found
that, in the absence of DAA, Cage would only suffer
moderate difficulties in those respects. With this
improvement, Cage would no longer qualify as per se
disabled under the Listings, so the ALJ proceeded to steps
four and five. Based on the testimony of a vocational
expert, the ALJ found that Cage’s impairments in the
absence of DAA would allow her to work.
Id. at 126. The court in Cage identified the determinative
issue as “the ALJ’s findings that Cage’s difficulties with
social functioning, and with concentration, persistence and
pace, would improve from ‘marked’ to ‘moderate’ in the absence
of DAA.” Id. Undertaking pleanary review of the administrative
record, the court “conclude[d] that those findings were
supported by substantial evidence.” Id.
61
materiality in the absence of predictive opinions.”
Id.
(collecting case law).
Here too, requiring a predictive opinion to determine
materiality or a medical opinion that separates the alcohol use
from the remaining limitations deprives the ALJ of the
flexibility needed to address DAA materiality.
It is also not
required by the regulations or even the subsequently issued SSR
13-2p.
Moreover, disability determinations are made on the
whole record as opposed to a record that must contain a
particular predictive opinion.
See Stanley v. Colvin, 2014 WL
1281451, at *13 (D.Mass. March 28, 2014) (noting that “an ALJ’s
decision must be based upon a consideration of the entire
record” although he “‘can consider all the evidence without
directly addressing in his written decision every piece of
evidence submitted by a party’”).
The dispositive inquiry is whether substantial evidence
supports the materiality finding and, in particular, the ALJ’s
critical findings changing from marked to mild the social
functioning and the concentration, persistence or pace function
when plaintiff no longer abused alcohol.
See Cage v. Comm’r of
Social Security, 692 F.3d at 126-127; see also Seavey v.
Barnhart, 276 F.3d at 9 (review entails “whether the final
decision is supported by substantial evidence and whether the
correct legal standard was used”).
62
In other words, as
appropriately framed by the Second Circuit in Cage under
analogous circumstances, “Was the ALJ’s finding of DAA
materiality supported by substantial evidence, notwithstanding
the lack of a consultive opinion predicting [plaintiff’s]
impairments in the absence of . . . alcohol abuse?”
Comm’r of Social Security, 692 F.3d at 126.
Cage v.
The same question
inures here regarding whether the ALJ’s finding of DAA
materiality is supported by substantial evidence,
notwithstanding the lack of a medical opinion that separates the
alcohol abuse from the remaining limitations and renders a
finding.
Although there was no extended period of sobriety, Dr. Hurd
examined plaintiff at a time when she had not used alcohol in
the prior two weeks, a fact noted by the ALJ.
See SSR 13-2p,
2013 WL 621536, at *16 n.27 (recognizing that there is no set
time period for abstinence although “claimant should be
abstinent long enough to allow the acute effects of drug or
alcohol use to abate”); Cage v. Comm’r of Social Security, 692
F.3d at 127 (although “record does not reveal any extended
periods of sobriety . . . it does include, inter alia, positive
evaluations of Cage conducted during inpatient admissions when
Cage did not have access to drugs or alcohol”).
Plaintiff
scored a 30 out of 30 on the mental status exam during this time
period, made good eye contact and had an appropriate mood and
63
affect.
(Tr. 266).
Dr. Senger made the same findings nine
months later in September 2011.
He also noted that plaintiff
had the ability to comprehend, remember and carry out
instructions.
alcoholic.
(Tr. 363-364).
Plaintiff admitted to being an
Dr. Gould found plaintiff could attend meetings and
appointments and possessed a level of functioning that suggested
she had the “concentration, attention, focus and persistence for
work-related activities.”
(Tr. 282).
He rated plaintiff’s
activities of daily living, social functioning and
concentration, persistence or pace as mild.
Dr. Lender’s
treatment notes over a seven month period in 2012 reflect
plaintiff’s improving depression, good eye contact, a more
active and more motivated condition and a clear and organized
thought process.
Whereas at times Dr. Lender described
plaintiff as sad, Dr. Lender also described her as “reliable,
motivated and compliant.”
(Tr. 572, 576-581).
The ALJ cited
and relied upon all of these as well as other findings to
determine that the paragraph B criteria rendered plaintiff’s
mental limitations without alcohol abuse “mild.”
Accordingly, the ALJ did not ignore the depressive disorder
with the alcohol abuse use that he found at step three.
Rather,
he considered the symptoms of plaintiff’s depression and arrived
at a finding that is supported by substantial evidence.
Further, the step three depressive disorder with alcohol abuse
64
heavily relied on plaintiff’s symptoms of alcohol use.
(Tr. 15-
17).
Incorporating the paragraph B analysis into the RFC
determination (Tr. 20), the ALJ relied on the same evidence and
findings and added additional findings, also supported in the
record.
Substantial evidence therefore exists for the ALJ’s
materiality finding.
Indeed, the court in Cage found similar and, indeed, not as
strong, evidence sufficient to amount to substantial evidence to
uphold the DAA materiality finding.
See id. at 127.
The court
also rejected plaintiff’s argument that “a predictive medical
opinion is necessary in cases, including hers, in which ‘“it is
not possible for an ALJ to separate the limitations imposed by
substance abuse [and] by other non-DAA impairments.”’”
Id. at
126.
Plaintiff’s reliance on SSR 13-2p that evidence
establishing “that a claimant with a co-occurring mental
disorder(s) would not be disabled in the absence of DAA,” SSR
13-2p, 2013 WL 621536, at *9, does not advance her case.
The
foregoing evidence and the other additional evidence relied upon
by the ALJ provides substantial evidence that plaintiff would
not be disabled absent DAA.
In the same section of SSR 13-2p,
2013 WL 621536, at *9, the ruling instructs that, “DAA is not
material to the determination of disability . . . if the record
65
is fully developed and the evidence does not establish that the
claimant’s co-occurring mental disorder(s) would improve to the
point of nondisability in the absence of DAA.”
added).
Id.
(emphasis
In the case at bar, the ALJ repeatedly noted and
emphasized that plaintiff’s depression was “improving” even with
a diagnosed alcohol dependence as set out in the treatment notes
of Dr. Lender, plaintiff’s treating psychiatrist.
Plaintiff next submits that the RFC lacked substantial
evidence.
Plaintiff also relies on Dr. Lender’s findings of
marked limitations in the medical source statement and points
out that Dr. Lender made the findings without mentioning
plaintiff’s alcohol dependence or abuse.
An RFC determination must be based on “all the relevant
medical and other evidence” in the case record and it reflects
the most a claimant can do despite his or her limitations. 20
C.F.R. §§ 404.1545(a)(1) & 416.945(a)(1).
The ALJ, as a lay
person, is “not qualified to interpret raw medical data in
functional terms.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.
1999); see Berrios Lopez v. Secretary of Health & Human
Services, 951 F.2d 427, 430 (1st Cir. 1991) (“ALJ is not
qualified to assess claimant’s residual functional capacity
based on the bare medical record”).
Rather, “‘an expert’s RFC
evaluation is ordinarily essential unless the extent of
functional loss, and its effect on job performance, would be
66
apparent even to a lay person.’”
Manso-Pizarro, 76 F.3d at 17
(quoting Santiago v. Secretary of Health and Human Services, 944
F.2d 1, 7 (1st Cir. 1991)).
As explained above, however, the ALJ relied on the
functional limitations found by Dr. Gould as well as the
opinions and findings by Dr. Senger, Dr. Hurd and Dr. Lender’s
treatment notes.
The ALJ justifiably rejected Dr. Lender’s
medical source statement regarding the marked limitations in
work related qualities.
As to the latter, it is well settled
that the medical opinion of a treating source is entitled to
controlling weight when it “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
case record.”
20 C.F.R. § 416.927(c)(2); Gordils v. Secretary
of Health and Human Servs., 921 F.2d 327, 328-329 (1st Cir. 1990)
“If the opinion is inconsistent, however, either internally or
with other evidence, the [ALJ] is free to ‘downplay’ the
physician’s assessment.”
Rodriguez v. Astrue, 694 F.Supp.2d 36,
42 (D.Mass. 2011) (quoting Arruda v. Barnhart, 314 F.Supp.2d 52,
72 (D.Mass. 2004)).
Further, if the ALJ decides to discount the
opinion of a treating source, he also “must consider the length,
nature, and extent of the treatment relationship.”
Astrue, 899 F.Supp.2d 83, 87 (D.Mass. 2012).
Taylor v.
“Regardless of
whether or not the [ALJ] decides to discount the treating
67
physician’s opinion, the decision ‘must contain specific reasons
for the weight given to the treating source’s medical opinion,
supported by the evidence in the case record.’”
Id. (quoting
Social Security Ruling 96-2p, 1996 WL 374188, at *5 (July 2,
1996)).
Here, the ALJ gave Dr. Lender’s findings in the medical
source statement “little weight.”
(Tr. 22).
He rejected the
opinion because “the treating notes of Dr. Lender are
inconsistent with such mentally disabling limitations.”
22).
(Tr.
As noted above, the ALJ fully discussed the
inconsistencies between Dr. Lender’s medical source statement
and her treatment notes.
Having given Dr. Lender’s medical source statement little
weight, the ALJ relied on Dr. Lender’s treatment notes and the
findings and opinions by Dr. Gould, Dr. Senger and Dr. Hurd.
As
noted, Dr. Gould’s PRTF findings were explicit and he provided a
detailed explanation.
Dr. Senger, an examining medical source,
also made certain findings regarding plaintiff’s ability to
perform work related functions.
An RFC prepared by a non-examining, non-testifying
physician “is entitled to some evidentiary weight, which ‘will
vary with the circumstances, including the nature of the illness
and the information provided the expert.’”
Berrios Lopez v.
Secretary of Health & Human Services, 951 F.2d at 431 (quoting
68
Rodriguez v. Secretary of Health and Human Services, 647 F.2d at
223); accord Gordils v. Secretary of Health and Human Services,
921 F.2d at 328.
Hence, the findings of a non-examining
physician may constitute substantial evidence when the report
includes more than “brief conclusory statements or the mere
checking of boxes denoting levels of residual functional
capacity” and indicates “some care” in reviewing the medical
file.
Berrios Lopez v. Secretary of Health & Human Services,
951 F.2d at 431.
As explained in the relevant regulations, “The
better an explanation a source provides for an opinion, the more
weight we will give that opinion.”
20 C.F.R. § 404.1527(c)(3),
(e); 20 C.F.R. § 416.927(c)(3), (e).
Here, the ALJ relied on inter alia the findings and
opinions by Dr. Gould, Dr. Senger, Dr. Hurd and the treatment
notes of Dr. Lender.
In light of Dr. Gould’s relatively
detailed PRTF, Dr. Senger’s detailed report and testing, Dr.
Hurd’s consistent findings and Dr. Lender’s treatment notes,
substantial evidence supported the ALJ’s RFC.
Plaintiff fails
in her burden to establish DAA materiality.23
23
To the extent that particular findings of plaintiff’s
functional limitations by Dr. Hurd, Dr. Senger and Dr. Gould
relied upon by the ALJ included assessments of plaintiff’s
depression and mental impairments with alcohol use, such
findings necessarily encompass findings that plaintiff would
have no more than the same limitations if she did not abuse
alcohol.
69
Indeed, the First Circuit’s opinion in Silva-Valentin v.
Commissioner of Social Security, 2003 WL 22114475 (Sept. 11,
2003) (unpublished), upheld an ALJ who relied on somewhat
similar evidence to reject a treating psychiatrist’s opinion of
a disabling condition as inconsistent with other substantial
evidence.24
The other substantial evidence consisted primarily
of an “examination of claimant by Dr. Tejeda and [an] RFC
assessment completed by [a] non-examining physician.”
*1-2.
Id. at
Those reports:
indicated that, at most, claimant had moderate difficulties
in concentrating, but that, at a minimum, her thought
processes were intact, and she retained the ability to
engage in simple work. Combined with [the treating
psychiatrist’s] own observation that claimant’s
intellectual functioning was fair, it would be difficult to
say that the ALJ erred in not giving controlling weight to
the opinion of [the treating psychiatrist] that claimant
was disabled.
Id. at *2.
The above noted similar findings regarding
plaintiff’s mild functional limitations, improving depression,
normal test results and Dr. Lender’s treatment notes similarly
provide substantial evidence for the ALJ’s RFC.
Given this
substantial evidence, the absence of an RFC assessment of
24
As an unpublished opinion, this court considers the
opinion for its persuasive value but not as precedent. See LR.
32.1.0, United States Court of Appeals for the First Circuit.
70
plaintiff that separates her alcohol use and does not consider
it fails to yield a finding of non-materiality.
Plaintiff additionally maintains that the ALJ’s RFC
determination without alcohol abuse ignored the severe anxiety
impairment the ALJ found at step two when including the alcohol
abuse.
Plaintiff submits that after finding a severe anxiety
impairment at step two, the ALJ did not address or consider the
anxiety impairment at any subsequent point in the decision.
Plaintiff also contends that the ALJ erred at step three because
he “ignored Plaintiff’s anxiety disorder, which he already found
was severe” at step two.25
(Docket Entry # 16, p. 2).
First, plaintiff misconstrues the record because the ALJ
summarized Dr. Gould’s diagnosis of the anxiety disorder when he
found that the anxiety impairment was severe at step two with
alcohol use and again when he found that plaintiff’s remaining
mental impairments without alcohol abuse were not severe.
25
(Tr.
Plaintiff’s supporting memorandum makes a brief statement
that, “[T]he ALJ did not consider Plaintiff’s other medically
diagnosed impairments,” namely, her ADD and her personality
disorder. (Docket Entry # 16, p. 2). Plaintiff does not refer
to the failure elsewhere in the supporting memorandum or
anywhere in the reply brief. Plaintiff also does not cite to
any law to support the purported error. The argument is
therefore waived. See Coons v. Industrial Knife Co., Inc., 620
F.3d 38, 44 (1st Cir. 2010) (“district court was ‘free to
disregard’ the state law argument that was not developed in
Coons’s brief”).
71
13, 17).
He then incorporated those findings into the RFC.
(Tr. 13, 17, 20).
Second, “The determination at step two as to whether an
impairment is severe is a de minimis test, designed to ‘screen
out groundless claims.’”
Hines v. Astrue, 2012 WL 2752192, at
*9 (D.N.H. July 9, 2012) (quoting McDonald v. Secretary of
Health & Human Services, 795 F.2d 1118, 1123 (1st Cir. 1986)).
Consequently, “An ALJ’s finding that an impairment is severe
does not necessarily translate into functional restrictions in
the RFC.”
Id.; accord Griffeth v. Commissioner of Social
Security, 2007 WL 444808, at *3 (6th Cir. Feb. 9, 2007) (ALJ’s
finding at step two that limitation was more than minimal “was
not inherently inconsistent with his finding that the limitation
has ‘little effect’ on the claimant’s ability to perform basic
work related activities”) (unpublished); Lacroix v. Barnhart,
465 F.3d 881, 888 n.3 (8th Cir. 2006) (summarily rejecting
claimant’s argument that ALJ failed to include step two
limitations of severe mental impairment in RFC); Sykes v. Apfel,
228 F.3d 259, 268 n.12 (3rd Cir. 2000) (“finding under step two
of the regulations that a claimant has a ‘severe’ nonexertional
limitation is not the same as a finding that the nonexertional
limitation affects residual functional capacity”).
The ALJ considered the anxiety disorder diagnosed by Dr.
Gould but found, also based on Dr. Gould’s findings, that
72
plaintiff could engage in various activities, including driving,
attending appointments, maintaining her home and performing
household chores.
(Tr. 17).
Thus, recognizing and citing the
anxiety disorder diagnosed by Dr. Gould, in the same paragraph
the ALJ discussed the functioning capabilities noted by Dr.
Gould, including his finding that plaintiff “has the
concentration, attention, focus and persistence needed for workrelated activities.”
(Tr. 17, 282).
With respect to the paragraph B findings, the ALJ cited and
relied on these same functioning capabilities found by Dr. Gould
when the ALJ determined that plaintiff had only mild limitations
in social functioning and concentration, persistence or pace.
(Tr. 19).
The ALJ then carried over the limitations he “found
in the ‘paragraph B’ mental function analysis” in his assessment
of plaintiff’s RFC.
(Tr. 20) (“the following [RFC] reflects the
degree of limitation I have found in the ‘paragraph B’ mental
function analysis”).
Accordingly, the ALJ considered the
functional capabilities of plaintiff in light of her anxiety
disorder in crafting the RFC.
There was no error let alone an
error that was not harmless.26
26
Any failure to consider the anxiety disorder at step three
was harmless because the ALJ found that the depression,
including the alcohol abuse, was disabling on the basis and
accordingly proceeded to consider the materiality of the DAA.
Thus, if the ALJ had considered the anxiety impairment at step
73
B.
Step Four
Plaintiff next challenges the ALJ’s findings at step four.
In addition to the above deficiencies of the RFC which led to a
“seriously flawed Step 4 finding,” plaintiff submits that the
ALJ did not comply with SSR 82-62.
(Docket Entry # 16).
Specifically, the ALJ failed to develop and explain the physical
and mental demands of plaintiff’s past relevant work as a
secretary.
Plaintiff further points out that the step four
finding was not “supported by testimony from a vocational
expert.”
(Docket Entry # 16).
Defendant contends that substantial evidence supports the
ALJ’s step four determination.
Defendant submits that because
the ALJ determined that plaintiff had no severe mental
impairments, it logically follows that the ALJ did not have to
include mental limitations in the RFC assessment.
The ALJ then
justifiably concluded that plaintiff had the RFC to perform her
past work as a secretary.
Defendant also asserts that a
vocational expert (“VE”) is not required.
(Docket Entry # 22).
Plaintiff maintains that the ALJ made no findings vis-à-vis
the second component and cursory findings as to the first and
three, the result would lead to the same conclusion of a
disability at step three and a resulting consideration of DAA
materiality. In considering DAA materiality, the ALJ considered
Dr. Gould’s diagnosis of an anxiety disorder and the
accompanying symptoms.
74
third components.
Rather, the ALJ simply and summarily stated
that plaintiff “would be able to perform her past relevant work
as a secretary, as this work is actually and generally
performed.”
(Tr. 24) (Docket Entry # 24, p. 10) (Docket Entry #
16, p. 9).
SSR 82-62 provides that the ALJ must develop and fully
explain whether the claimant has the RFC to perform her past
relevant work.
SSR 82-62, 1982 WL 31386, at *3 (“[t]he decision
as to whether the claimant retains the functional capacity to
perform past work . . . must be developed and explained fully in
the disability decision”).
findings regarding:
The ruling requires the ALJ to make
(1) the claimant’s RFC; (2) “the physical
and mental demands of the past” relevant job or occupation; and
(3) whether the claimant’s “RFC would permit a return to his or
her past job or occupation.”
SSR 82-62, 1982 WL 31386, at *4.
With respect to the second component of the analysis, “the ALJ’s
‘determination or decision must contain among the findings’ a
specific finding of fact ‘as to the physical and mental demands
of the past job/occupation.’”
Waters v. Colvin, 2014 WL 898639,
at *3 (D.N.H. March 7, 2014) (quoting SSR 82-62, 1982 WL 31386,
at *3-4).
Under this component, the ALJ must make findings
regarding whether the claimant “retains the RFC to perform ‘the
actual functional demands and job duties of a particular past
relevant job.’”
Santiago v. Secretary of Health and Human
75
Services, 944 F.2d 1, 5 (1st Cir. 1991).
If the claimant cannot
perform the demands of the particular job performed in the past,
a finding of non-disability may still follow “if the claimant
has the capacity to meet the functional demands of that
occupation as customarily required in the national economy.”
Id. at 5 n.1.
In the case at bar, the ALJ did not develop or explain, let
alone fully explain, the demands of the particular job of a
secretary that plaintiff performed in the past.
He also failed
to explain the demands of the occupation in the national
economy.
Although the ALJ classified plaintiff’s past work as a
secretary as “a sedentary, skilled job” and cited support for
the finding (Tr. 23, 143, 234), he did not analyze the demands
of that job and then compare it to plaintiff’s current
functional capabilities.
See Manso- Pizarro v. Secretary of
Health and Human Services, 76 F.3d 15, 17 (1st Cir. 1996) (at
step four, “ALJ must compare the physical and mental demands of
that past work with current functional capability”).
Rather, he
made the following, conclusory statement:
In comparing the residual functional capacity that the
claimant would have if she stopped her alcohol abuse, with
the physical and mental demands of her past relevant work
as a secretary (Ex. 3E & 22E). [sic] Therefore, I find that
the claimant would be able to perform her past relevant
work as a secretary, as it [sic] this work is actually and
generally performed.
76
(Tr. 24) (punctuation and italics in original).
Accordingly,
the ALJ did not develop or provide a full explanation or
specific findings about the physical and mental demands of
plaintiff’s past job as a secretary or, alternatively, the
demands of the occupation as performed in the national economy
and then compare those demands with her functional capabilities
in the RFC.
The error was not harmless.
See, e.g., Gerhard v.
Colvin, 2015 WL 431636, at *5 (W.D.Okla. Jan. 29, 2015) (step
four violation of SSR 82-62 was not harmless).
The ALJ’s
decision at step four in determining that plaintiff would be
able to perform her past work as a secretary (Tr. 23, ¶ 8) was
both a legal error because it did not comply with SSR 82-62 and
this court cannot ascertain whether the ALJ had substantial
evidence to support it.
Although plaintiff summarily requests “a new administrative
hearing,” such a hearing is not required in the case at bar.
See Keating v. Secretary of Health and Human Services, 848 F.2d
271, 274 (1st Cir. 1988) (upholding ALJ’s decision on remand not
to hold another hearing).
Whether to conduct such a hearing is
left to the discretion of the Commissioner.
See generally
Seavey v. Barnhart, 276 F.3d at 13 (discussing sentence four
remand and “leav[ing] the question of additional evidence to the
discretion of the ALJ”).
77
A sentence four remand is appropriate in the event the
ALJ’s decision is not supported by substantial evidence or he
committed an error of law.
See Seavey v. Barnhart, 276 F.3d at
10 (citing 42 U.S.C. § 405(g) and Ward, 211 F.3d at 655); see
also Freeman v. Barnhart, 274 F.3d 606, 609 (1st Cir. 2001).
In
the case at bar, the ALJ did not adequately discuss the relevant
evidence regarding plaintiff’s functional ability to perform her
past job.
The Commissioner’s decision at step four (Tr. 24, ¶
8) is therefore vacated and a remand is required.
Barnhart, 276 F.3d at 12.
See Seavey v.
For reasons discussed in the previous
section, the Commissioner’s decision at steps two and three and
the RFC determination is affirmed.
See generally Tavarez v.
Commissioner of Social Security, 2005 WL 1530841, at *3 (1st Cir.
June 30, 2005) (affirming in part and vacating in part lower
court’s opinion “with instructions to remand to the Commissioner
for further proceedings consistent with this opinion”); Douglas
v. Commissioner of Social Security, 832 F.Supp.2d 813, 817
(S.D.Ohio 2011) (affirming in part and vacating in part
Commissioner’s decision remanding action); Connolly v. Astrue,
2011 WL 6888645, at *9 (D.Mass. Dec. 30, 2011) (allowing in part
and denying in part motion to reverse and motion to affirm and
entering order remanding case “for further proceedings
consistent with this opinion”); O’Neal v. Commissioner of Social
Security, 2010 WL 5758964, at *1 (W.D.Mich. Feb. 9, 2010).
78
To complete the record, this court turns to plaintiff’s
remaining argument that the ALJ erred by not obtaining the
testimony of a VE at step four.
“‘The claimant is the primary
source for vocational documentation, and statements by the
claimant regarding past work are generally sufficient for
determining the skill level, exertional demands and nonexertional demands of such work.’”
Santiago v. Secretary of
Health and Human Services, 944 F.2d at 5 (quoting SSR 82-62,
1982 WL 31386, at *3).
The ALJ is therefore “entitled to rely
upon claimant’s own description of the duties involved,” id.,
and a VE is not necessarily required.
As explained in an
unpublished First Circuit opinion regarding the “claimant’s
complaint that the ALJ failed to elicit vocational expert
testimony concerning the impact of her non-exertional
limitations on her ability to perform past work, the short
answer is that at step four of the sequential analysis the
claimant is the primary source for vocational documentation.”
Cushman v. Apfel, 2000 WL 227935, at *1 (1st Cir. Feb 18, 2000).
Accordingly, the ALJ was not required to retain a VE to support
his findings at step four.
CONCLUSION
In accordance with the foregoing discussion, the motion to
reverse and remand the decision of the Commissioner (Docket
79
Entry # 16) and the motion to affirm the decision of the
Commissioner (Docket Entry # 21) are ALLOWED in part and DENIED
in part.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge
80
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