Krol v. Colvin
Judge George A. OToole, Jr: OPINION AND ORDER entered denying 11 Motion for Order Reversing Decision of Commissioner; granting 14 Motion for Order Affirming Decision of Commissioner (Lyness, Paul)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-13533-GAO
NANCY A. BERRYHILL,1
OPINION AND ORDER
March 29, 2017
The plaintiff, Karen Krol, appeals the denial of her application for Social Security
Disability Benefits (“DIB”) and Supplemental Security Income (“SSI”) by the Commissioner of
Social Security (“Commissioner”). Before the Court are Krol’s Motion for Order Reversing the
Commissioner’s Decision (dkt. no. 11) and the Commissioner’s Motion to Affirm the
Commissioner’s Decision (dkt. no. 14). After consideration of the administrative record and the
parties’ memoranda, the Court now affirms the Commissioner’s decision because there is
substantial evidence in the administrative record to support the decision and no error of law was
Krol applied for DIB on June 14, 2012 and applied for SSI on July 31, 2012. Both
applications alleged disability beginning January 13, 2012. (Administrative Tr. at 120–26, 159,
Nancy A. Berryhill is now the acting commissioner of the Social Security Administration.
Therefore, pursuant to Federal Rule of Civil Procedure 25(d), Berryhill is automatically substituted
as the defendant in this action.
750–60 [hereinafter R.]).2 Her application for DIB was denied initially on December 21, 2012 (id.
at 64–66), and again upon reconsideration on August 7, 2013, (id. at 68–70). Krol’s application
for SSI was denied on August 15, 2012, (id. at 761–69), and was then “escalated to the hearing
level” and associated with the application for DIB, (id. at 119A). Krol requested a hearing, (id. at
71–72), which was held before Administrative Law Judge Stephen C. Fulton on May 1, 2014, (id.
at 789–829). The ALJ subsequently issued an unfavorable decision, finding that Krol could
perform her past relevant work as a medical records clerk based on her residual function capacity
(“RFC”). (Id. at 15–33.) Accordingly, the ALJ found that Krol was “not disabled” pursuant to the
Social Security Act. (Id. at 33.) On August 11, 2015, the Appeals Council denied Krol’s request
for review. (Id. at 9–11.) This denial rendered the ALJ’s decision the final decision of the
Commissioner, and made the case suitable for review by this Court pursuant to 42 U.S.C. § 405(g).
This Court’s review of a denial of social security disability benefits is limited to an
evaluation as to whether the “ALJ used the proper legal standards and found facts upon the proper
quantum of evidence.” Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The
Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. §
405(g); accord Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996).
The evidence is considered substantial when it is “more than a mere scintilla,” Richardson v.
Perales, 402 U.S. 389, 401 (1971), and an ALJ’s determination supported by substantial evidence
must be upheld “even if the record arguably could justify a different conclusion,” Rodriguez Pagan
v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987). Further, deciding issues of
The administrative record is in its original paper form, with the page numbers in the upper righthand corner of each page.
credibility is the “prime responsibility” of the ALJ. Rodriguez v. Celebrezze, 349 F.2d 494, 496
(1st Cir. 1965).
On appeal, Krol argues that the ALJ’s decision should be overturned both for legal error
and for lack of substantial evidence in the record to support the decision. Specifically, Krol argues
that the ALJ erred by: (1) inadequately considering the opinions of certain of Krol’s therapists and
nurse practitioners; (2) finding that none of Krol’s mental impairments were severe;3 (3) failing to
consider Krol’s testimony regarding pain; (4) inaccurately citing the record regarding Krol’s
activities of daily living (“ADLs”); (5) citing evidence in a biased manner; and (6) finding that
Krol could do light work.
There is no reason to outline the details of Krol’s medical history or of the DIB and SSI
application process here except as is necessary to discuss the specific objections made to the
The ALJ’s Decision Properly Weighed the Evidence of Krol’s Treating Therapist
Krol first contends that the ALJ failed to properly weigh the medical evidence when he
gave “less weight” to the opinions of Krol’s treating therapist, Helen Ekmekchi, a licensed social
worker, and nurse practitioners Kathryn Kieran and Michele Adam. (R. at 23.)
Under the relevant regulations, therapists and nurse practitioners are not among the
recognized “acceptable medical sources.” 20 C.F.R. §§ 404.1513(a), 416.913(a). Their opinions
therefore are not afforded “controlling weight” under the treating physician’s rule. See id. §
404.1513(c). The ALJ must nevertheless evaluate every medical opinion received. Id. §
404.1527(c). When a treating source is not given “controlling weight,” the weight attributed to the
Krol argues that the ALJ made an error of law and that the finding was not supported by
opinions is to be determined by the ALJ based on the application of the following factors: (1) the
examining and/or treatment history between the treating source and the claimant; (2) the length
and frequency of that relationship; (3) the nature and extent of the relationship; (4) the strength
and sufficiency of the evidence forming the basis for the opinion; (5) the consistency of the opinion
with the record as a whole; (6) the specialty, if any, of the source; and (7) any other factors the
claimant brings to the ALJ’s attention. See id., § 416.927(c). Ultimately, in determining how much
weight to give a therapist’s opinion, “an ALJ is only constrained by the duty to reach a conclusion
supported by substantial evidence in the record.” Gagnon v. Astrue, Civil Action No. 11-CV10381-PBS, 2012 WL 1065837, at *5 (D. Mass. Mar. 27, 2012) (citation omitted).
Here, the ALJ considered therapist Ekmekchi’s opinion as required by § 404.1527(c), and
the ALJ’s treatment of that opinion is supported by substantial evidence. In her March 31, 2014,
opinion, Ms. Ekmekchi concluded that Krol exhibited symptoms of anxiety, difficulty being
around people, moderate difficulty in maintaining social functioning, and a marked deficiency of
concentration. (R. at 681–87.) The ALJ gave the opinion “less weight” because it was inconsistent
with the overall weight of the record, including the claimant’s treatment history, her daily
activities, and her own statements. (Id. at 23.)
The claimant’s treatment history demonstrates that many of her mental impairments have
been treated effectively with medication. For example, the claimant herself stated in the hearing
before the ALJ that the medication she takes to combat her Attention Deficit Hyperactivity
Disorder (“ADHD”), which impacts her ability to concentrate, is “a miracle thing” that helps
reduce her symptoms. (Id. at 812–13.) She also noted in her function report that with medications
she can pay attention “pretty well” and “usually” finishes what she starts. (Id. at 188.) The
claimant’s medical records also contains evidence that Krol’s anxiety was reduced with
medication. (See, e.g., id. at 612, 629.) Furthermore, the record indicates that the claimant is able
to carry out daily tasks such as making quick meals, doing laundry, and shopping for groceries
with assistance from her brother. (Id. at 185–86.) The ALJ therefore did not err in his decision to
give Ms. Ekmekchi’s opinion “less weight” in light of the inconsistencies in the opinion with other
information and assessments in the record as a whole.
Similarly, the ALJ’s consideration of the treatment records of nurse practitioners Kieran
and Adams satisfied the requirement that the ALJ reach a conclusion supported by substantial
evidence in the record. See Gagnon, 2012 WL 1065837, at *5. These nurse practitioners’ findings
include that Krol suffered from anxiety, trouble concentrating, insomnia, and depression. As
discussed, the record provides ample evidence that the claimant’s symptoms were controlled and
improved with medication. (See, e.g., R. at 401, 603, 612, 659.) Furthermore, ALJs are permitted
“to piece together the relevant medical facts from the findings and opinions of multiple
physicians.” Evangelista v. Sec’y of Health & Human Servs., 826 F.2d 136, 144 (1st Cir. 1987).
It is an ALJ’s responsibility, and was therefore within his discretion, to consider the evidence as a
whole, including evidence that points in different directions, and make rational judgments based
on the information available. In doing that, an ALJ may discuss certain opinions in brief while
relying more heavily on others in reaching and explaining his decision.
There was no error in the ALJ’s consideration and treatment of the opinions of treating
therapist Ekmekchi and nurse practitioners Kieran and Adam.
The ALJ Did Not Err by Finding that Krol’s Mental Impairments Were Not Severe
Because that Finding Was Supported by Substantial Evidence
Krol argues that the ALJ erred at law when he found that none of the claimant’s mental
impairments were severe. See 20 C.F.R. § 404.1520(c). She further argues that this finding was
not supported by substantial evidence in the record.
The ALJ found Krol’s posttraumatic stress disorder (“PTSD”), anxiety, and ADHD “to be
non-severe because they do not cause more than minimal limitation in the claimant’s ability to
perform basic mental work activities.” (R. at 22.) He noted in particular that these impairments
date back several years before her alleged disability onset date, during which time Krol was
employed. (Id.) He also noted that treatment and medication seemed to improve her condition
overall, despite increased symptoms “at times.”4 (Id.)
Krol’s primary objection to the ALJ’s analysis is that the ALJ committed legal error by
conflating her mental impairments in his discussion thereof. Krol also argues that the ALJ erred
by failing to address the claimant’s PTSD diagnosis.
To the contrary, the ALJ noted each of Krol’s diagnoses, (id.), and the analysis met the
requirement under 20 C.F.R. § 404.1520a(c)(3) that the ALJ consider each of the four areas of
functional limitation: difficulty in maintaining social functioning; activities of daily living;
maintaining concentration, persistence, or pace; and episodes of decompensation. With respect to
the first three areas of functional limitation, the ALJ concluded that the evidence was consistent
with no more than a mild limitation. (R. at 22.) With respect to the fourth functional area, the ALJ
found that the claimant had experienced no episodes of decompensation. (Id. at 23.)
The record also supports the ALJ’s conclusion that Krol’s history of mental impairments
dates back to before the alleged onset of her disability. The medical records indicate that Krol was
being treated for anxiety as early as 2008, (id. at 316), and attention-deficit disorder as early as
2011, (id. at 434).
The record indicates that these upticks in Krol’s symptoms were due to external stressors such
as her housing situation, her daughter’s health and stability, and the anniversary of her exhusband’s death. (R. at 632, 635, 643, 659, 664.)
While the ALJ conducted a relatively limited analysis of Krol’s PTSD, this too is consistent
with the record, which does not reflect an escalation in Krol’s PTSD symptoms. Rather, Krol’s
treatment history indicates that her PTSD was regarded as an anxiety disorder, (see, e.g., id. at 401,
420, 461), and Krol self-reported that her anxiety medication helped treat her PTSD symptoms,
(id. at 213, 226).
Even if the ALJ erred by failing to devote individualized attention to the claimant’s PTSD
diagnosis, any such oversight was harmless because there is ample evidence in the record that
Krol’s mental impairments did not meaningfully limit her ability to do basic work activities during
the time period in which she alleges disability as required to determine that an impairment is
“severe.” See 20 C.F.R. §§ 404.1520, 404.1521(a). First, Doctors McKenna and Murphy, who are
advising psychologists to the Disability Determination Service, both found that the medical
evidence of record did not establish the presence of a severe mental impairment. (R. at 41, 55–56.)
Second, the claimant’s own function report only mentions the mental limitations of “terrible
problems with memory,” (id. at 185), and a “very short temper,” (id. at 188), but goes on to note
that with medication she is able to pay attention “pretty well,” (id.), usually finish what she starts,
(id.), and follow written and spoken instructions, (id.). She reported no problem getting along with
authority figures, (id. at 189), and no change in social activities since the alleged onset of her
impairments, (id. at 188). Third, the mental status examinations in the record generally reflect
Krol’s anxious mood, but find her to be coherent and cooperative, and do not find her to suffer
from delusions or homicidal or suicidal thoughts. (See, e.g., id. at 401, 406, 408, 572.) Fourth,
though the claimant testified about her PTSD, stating that she has nightmares, does not like to be
around loud noises, and does not like to be near men, the ALJ was within his role as trier of fact
in discounting the aspects of her testimony that went beyond the objective medical evidence.
“[T]he resolution of conflicts in the evidence is for the Secretary, not the courts,” Ortiz v. Sec’y of
Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citing Rodriguez v. Sec’y
of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).
“[W]here the facts permit diverse inferences, [a court] will affirm the Secretary so long as
the inferences drawn are supported by the evidence.” Baez Velez v. Sec’y of Health & Human
Servs., 993 F.2d 1530, at *7 (1st Cir. 1993) (per curiam) (unpublished table decision) (citing
Rodriguez Pagan, 819 F.2d at 3). Here, the ALJ clearly and carefully considered the evidence,
both testimony and medical records, proffered by the claimant. Just as in Torres v. Barnhart, “[t]he
clear implication of the ALJ’s decision is that the plaintiff’s conditions can be controlled if she
complies with her medication regime.” 249 F. Supp. 2d 83, 97 (D. Mass. 2003).
The ALJ Properly Considered Krol’s Allegations of Pain
Krol argues that the ALJ did not consider her allegations of pain as reflected in the record
and in her testimony. While an administrative law judge must consider a claimant’s subjective
allegations of pain, he is not required to accept those allegations, and may reject them where they
are unsupported by corroborating medical evidence, treatment history, and activities of daily
living. See Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 194–95 (1st Cir. 1987)
(per curiam); Avery v. Sec’y of Health & Human Servs., 797 F.2d 19, 22–23 (1st Cir. 1986); 20
C.F.R. § 416.929.
Here, the ALJ’s decision notes the numerous references in the claimant’s medical records
to her degree of pain, indicating that he did in fact consider the claimant’s pain in reaching his
decision. (R. at 24–30.) The ALJ also had the opportunity to observe Krol in person, and he
concluded that to the extent the claimant testified to limitations greater than what he found, her
statements were not consistent with the overall weight of the evidence. (Id. at 31.) As noted
previously, credibility assessments are the “prime responsibility” of the ALJ. Rodriguez v.
Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965). “The credibility determination by the ALJ, who
observed the claimant, evaluated [her] demeanor, and considered how that testimony fit in with
the rest of the evidence, is entitled to deference, especially when supported by specific findings.”
Frustaglia, 829 F.2d at 195 (citation omitted). It is within the ALJ’s discretion to make an
unfavorable credibility determination so long as he has considered the claimant’s subjective
complaints and sufficiently explained his reasons for rejecting them. Id.
The specific findings set out in the ALJ’s decision—which are supported by the evidence
in the case record—provide ample support for his credibility determination, and the record makes
clear that the claimant’s allegations of pain were considered, if ultimately given less weight.
The ALJ’s Decision Accurately Cites the Record Regarding Krol’s Activities of
The claimant next argues that the ALJ’s statement that Krol is “able to perform several
activities that require a significant ability to sustain attention and concentration, such as reading,
watching television, doing chores, cooking, shopping, and attend[ing] appointments,” (R. at 22),
is inaccurate. Both Krol’s function report and testimony before the ALJ provide support for this
assessment, however. In her function report, Krol stated that her hobbies include watching
television and reading. (Id. at 187.) She further stated that she was able to “make very quick
meals,” (id. at 185), do laundry, with her brother’s assistance in taking the laundry to the dryer,
(id.), go shopping for food, cosmetics, and toiletries with her brother’s help, and to pay bills, count
change, handle a savings account, and use a checkbook, (id. at 186). She was also, as the record
makes clear, able to attend her myriad medical appointments. In her testimony before the ALJ, the
claimant reiterated that her brother takes her shopping and that her typical day includes time spent
watching television and reading. (Id. at 807, 820, 821.) Therefore, the ALJ did not err in his
discussion of the evidence regarding Krol’s ADLs.
The ALJ’s Analysis Is Fair
Krol next argues that the ALJ’s decision paints a one-sided picture of her daily life and
omits evidence that does not support his ultimate conclusion that Krol is not disabled. In assessing
a charge of bias, the Court begins with the presumption that the ALJ is unbiased, but this
“presumption can be rebutted by a showing of conflict of interest or some other specific reason for
disqualification.” Johnson v. Colvin, Civil Action No. 13-40003-TSH, 2016 WL 4639134, at *12
(D. Mass. Sept. 6, 2016) (quoting Schweiker v. McClure, 456 U.S. 188, 195 (1982)). The claimant
has not rebutted that presumption here.
First, Krol argues that the ALJ omitted details from her testimony that reflect the severity
of her impairments, particularly with respect to her daily routine. In particular, she argues that the
ALJ erred by giving less weight to the opinion contained in Exhibit 18F in part because it is
illegible. “[T]he development of an adequate record requires the ALJ to make a reasonable effort
to ascertain the identity of a medical source who prepares a medical source statement which
provides opinions regarding a claimant’s physical and/or mental limitations.” Murphy v. Astrue,
Civil Action No. 11-10634-JLT, 2012 WL 1866288, at *11 (D. Mass. Apr. 10, 2012) (quoting
Tracy v. Astrue, 518 F. Supp. 2d 1291, 1300–01 (D. Kan. 2007)). However, “reversal of the ALJ’s
decision for failure to request additional information is warranted only where the ALJ’s failure is
unfair or prejudicial to the claimant’s case.” Id. (quoting Gaeta v. Barnhart, Civil Action No. 0610500, 2009 WL 2487862, at *6, n. 4 (D. Mass. Aug. 13, 2009)).
Here, the ALJ considered the portion of the document he was able to decipher, which
indicated a sedentary range of work activities, and determined that it was inconsistent with Krol’s
treatment history and ADLs. Krol asserts that the ALJ did not consider her testimony in reaching
this conclusion. However, the ALJ’s decision includes a lengthy paragraph summarizing that
testimony, which notes the “severe pain” her back spasms cause her “on an unpredictable basis,”
causing “her to have difficulty with prolonged sitting and standing for one week to ten days.” (R.
at 30.) This discerning analysis of the record does little to rebut the presumption that the ALJ is
Next, Krol argues that the ALJ failed to explain the meaning of a low global assessment
of functioning (“GAF”) score. “GAF scores alone are not determinative factors in a disability
finding.” Dearborn v. Colvin, Civil Action No. 14-30019-MGM, 2015 WL 1321476, at *7 (D.
Mass. Mar. 24, 2015) (citing Stanley v. Colvin, Civil Action No. 11-10027-DJC, 2014 WL
1281451, at *15 (D. Mass. Mar. 28, 2014)). Therefore, although treating therapist Ekmekchi
cited a GAF score of forty in her evaluation, (R. at 681), that single assessment is not controlling.
See Querido v. Barnhart, 344 F. Supp. 2d 236, 246 (D. Mass. 2004). In the treatment records,
Ms. Ekmekchi gave Krol a GAF assessment of fifty. (R. at 572.) Other assessments in the record
by other assessors were higher. The ALJ adequately explained why he afforded Ms. Ekmekchi’s
opinion less weight, and thus the fact of the ALJ’s failure to elaborate on the GAF score noted in
that opinion is insufficient to overcome the presumption that the ALJ is unbiased.
Krol also points to the ALJ’s use of the word “venting” as evidence of his partiality.
However, as the Commissioner rightly notes, this word twice appeared in Ms. Ekmekchi’s
report, where she noted that the claimant “was venting her feelings” during her appointments.
(Id. at 635, 643.)
Finally, Krol argues that the ALJ only cursorily mentioned and then conflated certain
portions of her history, including her history of abuse, epilepsy, and PTSD. However, in the
treatment notes in evidence, discussion of these alleged impairments was limited compared to
discussion of the claimant’s ADHD, anxiety, or back pain, which the ALJ analyzes in more
depth. The ALJ is entitled to draw inferences from the record evidence, which he properly did
here in his consideration of Krol’s medical history and in reaching the conclusion that her mental
impairments were not severe. See Johnson ex rel. M.C.J. v. Astrue, Civil Action No. 11-11243JLT, 2012 WL 1605984, at *7 (D. Mass. Apr. 12, 2012), adopted by, 2012 WL 1605982 (D.
Mass. May 7, 2012).
The ALJ Did Not Err in Concluding that Krol Had the Residual Function Capacity
for Light Work
Krol disputes the ALJ’s finding that she had the RFC to perform light work subject to
several limitations, arguing that he should instead have found that she was only capable of
sedentary work. As the preceding analysis demonstrates, surveying the record as a whole, there
is substantial evidence to support the ALJ’s decision. In assessing Krol’s RFC, the ALJ relied
upon the notes, findings, and opinions of physicians and other treating sources, as well as the
claimant’s function report, testimony, and actual prior work history. Accordingly, the ALJ’s
finding regarding Krol’s residual functional capacity was supported by substantial evidence, and
that finding is affirmed.
In light of the foregoing, Krol’s Motion for Order Reverse the Commissioner’s Decision
(dkt. no. 11) is DENIED, and the Commissioner’s Motion to Affirm the Commissioner’s Decision
(dkt. no. 14) is GRANTED.
The decision of the Commissioner is AFFIRMED.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge
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