McNelley v. Colvin

Filing 15

Judge Richard G. Stearns: MEMORANDUM AND ORDER ON Appellant's Motion for Judgment on the Pleadings to Reverse the Decision of the Commissioner, ENTERED.denying 11 Motion for Judgment on the Pleadings (Flaherty, Elaine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-14342-RGS
WILLIAM PATRICK MCNELLEY
v.
CAROLYN W. COLVIN
ACTING COMMISSIONER OF SOCIAL SECURITY
MEMORANDUM AND ORDER ON APPELLANT’S MOTION FOR
JUDGMENT ON THE PLEADINGS TO REVERSE THE DECISION OF
THE COMMISSIONER
May 29, 2015
STEARNS, D.J.
William Patrick McNelley seeks review of a final decision of the
Commissioner of the Social Security Administration (SSA) adopting an
Administrative Law Judge’s (ALJ) determination that McNelley is not
disabled as defined by the implementing regulations of the Social Security
Act (SSA). See 20 C.F.R. § 404.1520(f). The Commissioner determined that
while McNelley is unable to work at any of his prior occupations, he is able
to perform less physically demanding work. In seeking to overturn the
Commissioner’s decision, McNelley contends that the ALJ failed to properly
weigh the medical evidence and unfairly evaluated McNelley’s credibility.
McNelley’s petition to the district court is brought as a matter right pursuant
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to 42 U.S.C. § 405(g), after his application, motion for reconsideration, and
request for review by the Appeals Council were successively denied.
BACKGROUND
On April 30, 2012, McNelley applied for Disability Insurance Benefits
(DIB), claiming an inability to work because of recurring anxiety with panic
attacks and agoraphobia since January 1, 2009. 1 The application was denied
initially and after reconsideration. On October 18, 2013, ALJ Paul W.
Goodale heard testimony from McNelley and from James Cohen, a courtappointed vocational expert (VE). The ALJ issued his decision, unfavorable
to McNelley, on December 27, 2013. After the Appeals Council denied
McNelley’s request for review on October 14, 2014, by operation of law the
ALJ’s decision became the final decision of the Commissioner.
McNelley was born on February 19, 1965. He is a high school graduate,
has a certificate in computer proficiency, and is able to communicate in
English. McNelley had previously worked as a machinery operator, machine
feeder, roofer, utility worker, forklift operator, and motel/hotel desk
manager.

At the October 18, 2013 hearing, McNelley amended his alleged
disability onset date from January 1, 2009, to February 15, 2010.
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For the most part, McNelley lives a solitary life at home. He watches
television, prepares his meals, keeps doctor’s appointments, and does his
own shopping. McNelley testified that, because of his anxiety, he often
“freezes” and is unable to leave his house, avoids crowds, has difficulty
sleeping, and is unable to work. Transcript (Tr.) at 107.
Medical Evidence
McNelley alleges that he became disabled on February 15, 2010, but
did not seek treatment until April 4, 2012, when he presented to the
emergency room at Whidden Hospital. At Whidden, he was prescribed
Xanax, a benzodiazepine derivative used to alleviate feelings of anxiety. After
this initial hospital visit, McNelley treated with a number of mental health
professionals. On April 7, 2012, McNelley was seen by Dr. Jeffrey Phillips, a
family practitioner, who prescribed Zoloft, another anti-anxiety drug. On
April 18, 2012, McNelley returned to Whidden’s emergency room asking for
more medication. Dr. Phillips followed up with McNelley on April 20, 2012,
diagnosing him with social anxiety disorder and prescribing yet another antianxiety drug, Celexa.

On April 24, 2012, after an examination, Peter

McEntee, a licensed clinical social worker, diagnosed McNelley with panic
disorder with agoraphobia.

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On July 9, 2012, Dr. Ronit Dedesma, a treating psychiatrist at
Cambridge Health Alliance, also diagnosed McNelley with panic disorder
with agoraphobia. McNelley testified that he experiences panic attacks five
to six days a week and that they are especially severe an average of three
times a week. Id. at 118. Dr. Dedesma opined that McNelley’s disability
“markedly” limits his ability to perform scheduled activities, keep regular job
attendance, sustain ordinary daily routine without supervision, and
complete a normal workweek.

Id. at 609-610.

She later opined that

McNelley’s panic disorder with agoraphobia had “progressed to a somewhat
paralyzing point.” Id. at 617.
Over time, McNelley has been prescribed a number of anti-anxiety
medications, including Xanax, Celexa, Clonazepam, Remeron, Effexor, and
Atarax. Between April of 2012 and September of 2013, McNelley’s Global
Assessment of Functioning (GAF) scores ranged from 50 to 55. 2 McNelley’s

“A GAF score between 41 and 50 represents ‘[s]erious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any
serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).’” Amaral v. Comm’r of Soc. Sec., 797 F. Supp.
2d 154, 158 n.1 (D. Mass. 2010) (emphasis in original), citing Am. Psychiatric
Ass’n, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) 34
(4th ed., text rev. 2000). “GAF scores in the 51-60 range indicate ‘[m]oderate
symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers).’” Warren v. Astrue,
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reported symptoms include worry, fidgeting, racing thoughts, decreased
concentration, shakiness, feelings of apprehension, pressure in his chest,
shortness of breath, dry mouth, anger, and nausea. McNelley’s primary
symptoms are panic attacks, avoidance, and general worry.
THE ALJ’S DECISION
The ALJ made the following written findings of fact and conclusions of
law:
1. The claimant meets the insured status requirements of the SSA through
March 31, 2015.
2. The claimant has not engaged in substantial gainful activity since
February 15, 2010, the amended alleged onset date.
3. The claimant has the following severe impairment: anxiety with panic
attacks and agoraphobia.
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
5. After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform a full range
of work at all exertional levels but with the following nonexertional
limitations: the claimant is limited to only occasionally climbing ladders,
ropes, and scaffolds.; and he must avoid even moderate exposure to
extreme noise and vibrations, to closed areas, and to workplace hazards
such as dangerous moving machinery or unprotected heights. He is
limited to the performance of low-stress work with only occasional
decision-making and occasional changes in the work setting. He will be
off-task for less than 10% of the workday, and cannot [sic] perform
2011 WL 31292, at *1, n.1 (D. Mass. Jan. 4, 2011) (emphasis in original),
citing DSM-IV 34.
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production rate or pace work. He can have only occasional contact with
the general public.
6. The claimant is unable to perform any past relevant work.
7. The claimant was born on February 19, 1965 and was 43 years old, which
is defined as a younger individual age 18-49, on the alleged disability
onset date.
8. The claimant has at least a high school education and is able to
communicate in English.
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills.
10. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.
11. The claimant has not been under a disability, as defined in the Social
Security Act, from February 15, 2010, through the date of this decision.
DISCUSSION
Judicial review is limited to determining whether the findings of the
Commissioner are supported by substantial evidence. See 42 U.S.C. § 405(g);
Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir.
1996). The findings of the Commissioner will be upheld “if a reasonable
mind, reviewing the evidence in the record as a whole, could accept it as
adequate to support his conclusion.” Rodriguez v. Sec’y of Health & Human
Servs., 647 F.2d 218, 222 (1st Cir. 1981). However, the Commissioner’s
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findings “are not conclusive when derived by ignoring evidence, misapplying
the law, or judging matters entrusted to experts.” Nguyen v. Chater, 172
F.3d 31, 35 (1st Cir. 1999).
Disability determinations follow the “five-step sequential evaluation
process” mandated by 20 C.F.R. § 404.1520. The analysis requires that the
ALJ first determine whether or not a claimant was gainfully employed prior
to the onset of the disabling condition. At the second step, the ALJ must
determine whether a claimant suffers from a severe impairment limiting his
ability to work. If the impairment is the same as, or equal in its effect to, an
impairment (or combination of impairments) listed in Appendix 1 of the
regulations, the claimant is presumptively deemed disabled.

If the

impairment is not covered by Appendix 1, the fourth step of the analysis
requires that the claimant prove that his disability is sufficiently serious to
preclude a return to his former occupation. If he meets that burden, the
Commissioner at the fifth step is obligated to prove that there are other jobs
in the national economy that the claimant is able to perform. See Gonzalez
Perez v. Sec’y of HEW, 572 F.2d 886, 888 (1st Cir. 1978) (“[A] claimant must
establish that he can no longer perform his prior vocation before the
government is obligated to prove that alternative employment is available for
a person in claimant’s condition.”).
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The ALJ found at Step 1 that McNelley has not engaged in substantial
gainful employment since February 15, 2010. The ALJ also concluded that
McNelley had the following severe impairments: anxiety with panic attacks
and agoraphobia. At Step 3, however, he determined that these impairments
did not meet or medically equal one of the Appendix 1 impairments. He
therefore proceeded to Step 4.
Steps 4 and 5 of the analysis require an assessment of a claimant’s
residual functional capacity (RFC). See 20 C.F.R. § 404.1545(a)(5). To
evaluate the RFC, the ALJ must follow a two-step process to: (1) determine
whether the claimant has an underlying medically determinable physical or
mental impairment that could reasonably be expected to produce the
complained of pain or other symptoms; and (2) if such an impairment exists,
to determine the extent to which it limits his ability to do basic work activities.
This latter determination requires an evaluation of the intensity, persistence,
and limiting effects of the claimant’s symptoms. See id. § 404.1545(a)(2)-(3).
At Step 4, the ALJ determined that the impairments suffered by
McNelley could reasonably explain his alleged symptoms, but that
McNelley’s complaints about the intensity, persistence, and limiting effects
of these symptoms were “not entirely credible.” The ALJ then proceeded to
Step 5: the determination of whether — in light of McNelley’s RFC, age,
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education, and work experience — he retains the capacity to perform
appropriate and available work in the national economy.

The ALJ

determined that McNelley could perform the requirements of sedentary
occupations, such as a mailroom clerk, a ticket taker, and an office helper.
On appeal, McNelley maintains that the ALJ’s opinion was not
supported by substantial evidence in two respects: (1) the ALJ failed to weigh
the medical evidence properly; and (2) he failed to properly evaluate
McNelley’s credibility.
The ALJ’s Evaluation of the Medical Evidence
McNelley first contends that the ALJ failed to accord proper weight to
the opinion of his treating psychiatrist, Dr. Dedesma.

An ALJ must

ordinarily “give more weight to the opinions from [the claimant’s] treating
physicians, since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of [the claimant’s]
medical impairments.” 20 C.F.R. § 416.927(c)(2). A treating physician’s
opinion, however, is only controlling if it “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence.”

Id.

If the treating

physician’s opinion is inconsistent with other evidence in the record, the
conflict is for the ALJ, not the court, to resolve. Rodriguez, 647 F.2d at 222.
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The ALJ’s decision must nevertheless “contain specific reasons for the weight
given to the treating source’s medical opinion, supported by the evidence in
the case record . . . .” Social Security Ruling 96–2p, 1996 WL 374188, at *5
(July 2, 1996).
Dr. Dedesma, on whose opinion McNelley principally relies, wrote on
December 10, 2012, that his anxiety and panic disorders rendered him
“unable to work for at least the near future.” Tr. at 554. On September 23,
2013, Dr. Dedesma opined that McNelley’s disability “markedly” limited his
ability to meet everyday workplace expectations.

Id. at 609-610.

Dr.

Dedesma’s psychological assessment also stated that McNelley’s panic
disorder with agoraphobia had “progressed to a somewhat paralyzing point.”
Id. at 617.
The ALJ, however, chose to give Dr. Dedesma’s opinion “little weight”
for three articulated reasons. First, the ALJ noted that “Dr. Dedesma’s
opinion [was] inconsistent with the conservative treatment rendered to . . .
[McNelley], consisting solely of medication management.”

Second, Dr.

Dedesma’s opinion was “inconsistent with . . . [McNelley’s] positive response
to that treatment.” Third, Dr. Dedesma’s opinion was inconsistent with her
“own assessment of . . . [McNelley’s] GAF scores, which repeatedly indicate
that . . . [he] has only mild-to-moderate symptoms.” Id. at 49-50.
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In support of his findings, the ALJ points out that McNelley, against
Dr. Dedesma’s advice, discontinued an exposure therapy treatment of his
symptoms.

Id. at 110.

Moreover, the medical evidence indicated that

McNelley had responded positively to his medication regime. Id. at 463.
McNelley himself reported on April 18, 2012 that Xanax had “helped
immensely.” Id. at 437. He testified that he talks with his mother and sisters
daily and occasionally takes bike rides. Id. at 95, 123. McNelley’s GAF scores
ranged from 50 to 55, placing him on the upper border between moderate
and serious symptoms. Finally, the ALJ relied on the VE’s testimony in
concluding, in contrast to Dr. Dedesma, that there are jobs in the national
economy McNelley can perform.

Although the VE did not personally

evaluate McNelley, he did thoroughly review McNelley’s file as is apparent
from his testimony at the October 18, 2013 hearing. Ultimately, the ALJ was
within his discretion in giving small weight to Dr. Dedesma’s opinion in light
of other medical evidence in the record supporting a finding of lesser
impairment. Rodriguez, 647 F.2d at 222 (“[T]he resolution of conflicts in
the evidence . . . is for [the ALJ], not for the doctors or for the courts.”).
The ALJ’s Evaluation of McNelley’s Credibility
McNelley next claims that the ALJ failed to properly evaluate his
subjective complaints under Avery v. Sec’y of Health & Human Servs., 797
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F.2d 19 (1st Cir. 1986). Avery requires a two-step evaluation of credibility:
first, the ALJ must find that there exists a “clinically determinable medical
impairment that can reasonably be expected to produce the pain alleged.” Id.
at 21; 20 C.F.R. § 404.1529(b). If such an impairment is found, the ALJ must
then determine the severity of the alleged symptoms and the extent to which
these symptoms functionally impair the claimant. Avery, 797 F.2d at 22-23;
20 C.F.R. § 404.1529(c).
If a claimant’s allegations of pain are not wholly substantiated by
objective medical evidence, an ALJ should consider the following: (1) the
claimant’s daily activities; (2) the location, duration, frequency, and intensity
of the pain; (3) precipitating and aggravating factors; (4) the type, dosage,
effectiveness and side effects of any medication taken to alleviate the pain or
other symptoms; and (5) any other factors relating to claimant's functional
limitations and restrictions attributable to pain. Avery, 797 F.2d at 22; 20
C.F.R. §§ 404.1529 and 416.929(c)(3)(i-vii).

If the ALJ questions a

claimant’s credibility, he must give his reasons for so concluding. DaRosa v.
Sec’y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir. 1986).
The ALJ’s opinion followed this two-step process. At the first step, the
ALJ found that McNelley suffers from a clinically determinable medical
impairment that could reasonably be expected to cause his symptoms. At the
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second step, however, the ALJ found McNelley’s subjective complaints
regarding the intensity, persistence, and limiting effects of his symptoms to
be “not entirely credible” given McNelley’s testimony, the medical evidence,
and the findings of the VE.
McNelley argues that the ALJ substituted his own medical judgment
for that of Dr. Dedesma, whose objective psychiatric diagnosis is consistent
with his subjective symptoms. McNelley points to Nguyen, which faulted an
ALJ for substituting his medical judgement for the “uncontroverted” medical
opinion of the claimant’s treating neurologist. Nguyen, 172 F.3d 31 at 35.
Nguyen however bears little resemblance to this case where the ALJ did not
dismiss or ignore Dr. Dedesma’s opinion, but found it inflated in light of the
medical record as a whole. See Pires v. Astrue, 553 F. Supp. 2d 15, 21 (D.
Mass. 2008) (“[R]esolution of conflicts in the evidence or questions of
credibility is outside the court’s purview, and thus where the record supports
more than one outcome, the ALJ’s view prevails as long as it is supported by
substantial evidence.”).
McNelley further contends that the ALJ not only erred in assuming
McNelley’s delay in seeking treatment indicated that his symptoms were not
severe, but that he also mischaracterized McNelley’s involvement in outdoor
activities like biking. The ALJ, however, articulated the reasons for his
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finding that McNelley’s “symptoms do not limit his activities to the extent
alleged.” Tr. at 49. The ALJ first focused on McNelley’s description of his
daily activities, including preparing meals, attending doctor’s appointments,
and doing personal shopping. He noted that while McNelley’s symptoms
have persisted, they have improved with medication. The ALJ also noted
McNelley’s treatment as “routine and conservative” and his moderate GAF
scores. Id. See Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192,
195 (1st Cir. 1987) (“[T]he credibility determination of the ALJ . . . is entitled
to deference, especially when supported by specific findings.”).
ORDER
Because the ALJ’s decision that McNelley is not disabled within the
meaning of the SSA is supported by substantial evidence, McNelley’s motion
for judgment on the pleadings is DENIED. The Clerk will enter judgment for
the Commissioner and close the case.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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