Linehan v. Berryhill
Filing
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Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered.The Court DENIES Defendant's Motion to Affirm (Docket No. 24 ), and ALLOWS IN PART Plaintiffs Motion to Reverse (Docket No. 22 ). Pursuant to 42 U.S.C. § 405(g), the Court VACATES the Commissioner's decision and REMANDS this matter. (Geraldino-Karasek, Clarilde)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_________________________________
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DAVID M. LINEHAN,
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Plaintiff,
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v.
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NANCY A. BERRYHILL,
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Commissioner of Social
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Security Administration,
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Defendant.
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______________________________
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Civil Action
No. 17-cv-10433-PBS
MEMORANDUM AND ORDER
January 27, 2018
Saris, C.J.
INTRODUCTION
Plaintiff David M. Linehan, who suffers from physical and
mental impairments, moves to reverse and remand the
Commissioner’s denial of his application for Social Security
Disability Insurance Benefits under 42 U.S.C. § 405(g). He
claims that the Administrative Law Judge (“ALJ”) committed an
error of law by ignoring evidence from his treating healthcare
providers.
For the reasons set forth below, the Court DENIES
Defendant’s Motion to Affirm (Docket No. 24) and ALLOWS, in
part, Plaintiff’s Motion to Reverse (Docket No. 22).
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FACTUAL BACKGROUND
The following facts are derived from the administrative
record. Plaintiff is a 50-year-old male with a high school
education, residing with his girlfriend and their two young
children in Quincy, Massachusetts. R. 62, 179-80.
The impairments that support the disability claim stem from
a series of incidents in 2012 and 2013. R. 280. First, Plaintiff
hit his head while moving a futon in September 2012, resulting
in severe neck pain. R. 280. Then, on November 6, 2012, he was
involved in a low-speed motor vehicle accident, briefly losing
consciousness. R. 402. His dizziness, fatigue, and cognitive
difficulties have since been treated as post-concussion
symptoms. R. 280-81.
In February 2013, after forcefully shaking a bottle of
infant formula, he sought medical treatment for severe pain in
his neck and arm. Id. On May 2, 2013, he was involved in a
second motor vehicle accident, which he described as a “minor
fender bender.” Id. His Alleged Onset Date of disability is May
5, 2013. R. 53.
A. Work History
Plaintiff last worked a full-time job in 2007. R. 145-46.
After a period of unemployment, Plaintiff began to work part-
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time as a driver for Enterprise Rental Car in 2010. R. 145.
Plaintiff stopped working some time after the November 2012 car
accident. He then attempted to return to work on an incremental
basis, beginning with a two hour shift in May 2013. R. 402. Due
to fatigue, dizziness, and the inability to concentrate, he felt
that he was unable to perform his duties as a driver and left
Enterprise later that year. Id.
Beginning in March 2014 and continuing through the time of
the hearing before the ALJ on November 3, 2015, Plaintiff was
working on a per diem basis as a courier for White House
Insurance, two to three half days per week on average. R. 35-36.
Due to his symptoms, Plaintiff has refused offers of additional
work. R. 45.
B. Medical Records
Plaintiff initially reported “dizziness and fatigue” to a
doctor on the day after the automobile accident in November
2012. R. 440. During his visit to Massachusetts General Hospital
on the day of the February 16, 2013 bottle shaking incident, the
attending physician noted that his “neurological exam show[ed]
no focal defects” and that his motor function was “intact.” R.
324. Later that month, Dr. Leonid Shinchuk treated him for neck
and arm pain but noted that “[h]e is independent with activities
of daily living . . . [and] [h]e demonstrates good attention and
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concentration . . . .” R. 318. Also in February 2013, Dr. Seth
Herman, M.D., a traumatic brain injury and neurological
rehabilitation specialist, began to see Plaintiff regularly. R.
606.
On May 2, 2013, after the second automobile accident,
Plaintiff again showed no neurological defects on examination.
R. 300. One week later, Plaintiff reported some lingering
absentmindedness to his physical therapist, Marie Figueroa, but
stated that his dizziness had abated. R. 293. Later that month,
Dr. Herman noted that Plaintiff was recovering well from a “mild
concussion,” despite lingering memory problems. R. 400.
In August 2013, Dr. Herman noted Plaintiff’s persistent
dizziness and suggested that he find a different job, as driving
appeared to aggravate his dizzy spells. R. 398. In November, Dr.
Herman wrote a letter expressing his opinion that “[a]t this
point [Plaintiff] is not able to return to his job of driving
given the dizziness.” R. 606.
During a December 5, 2013 visit with Dr. Herman, Plaintiff
complained not only of dizziness, but also of memory loss,
fatigue, irritability and other cognitive difficulties. R. 396.
However, Plaintiff scored 5/5 on immediate and delayed memory
tests at this visit. Id. Dr. Herman prescribed a medication
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intended to address these cognitive issues, though by June 2014
Plaintiff had shown “no benefit.” R. 549.
In June 2014, Dr. Shannon Murray, Psy.D. conducted a
psychological evaluation of Plaintiff. R. 539-45. He scored well
on visual search speed, processing speed, attention,
concentration, cognitive flexibility, and long term memory. R.
541-44. He scored below average on short term memory. R. 544. In
July, Plaintiff scored “mildly to moderately impaired” on a
memory test at Braintree Rehabilitation Hospital. R. 554-55.
Also in June 2014, a non-examining State agency psychologist
found that Plaintiff’s impairments were not severe, having only
a mild impact on his daily activities. R. 57-59.
That same month, Dr. Herman prescribed Plaintiff with
Celexa, to treat symptoms of depression. R. 549. Due to
undesirable side effects, Plaintiff was switched to Wellbutrin
in September and taken off anti-depressants altogether by
December 2014. R. 598, 600.
In June 2015, Dr. Herman referred Plaintiff to Dr. Sarah
Gray, Psy.D. for cognitive behavioral therapy (CBT). R. 594. Dr.
Gray diagnosed Plaintiff with “major depressive disorder.” R.
595. She noted his self-reported stress, fatigue, and cognitive
difficulties, and recommended CBT techniques, which he
repeatedly failed to complete. R. 564-96. Plaintiff had ten
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sessions with Dr. Gray from June through September 2015. Id. In
July, he also met with Dr. James Mojica for a sleep study. R.
580. Dr. Mojica noted that he suffered from chronic insomnia and
recommended that he continue taking melatonin, as prescribed by
Dr. Herman. Id.
Also in July 2015, Plaintiff had a session with speech
pathologist Robert Sanders, MS, in which he scored very well on
information processing speed and attention tests. R. 577.
Plaintiff reported to Mr. Sanders that he had been exercising at
the gym, going for walks, and shopping. R. 586.
By contrast, in October of that year, Dr. Herman noted that
Plaintiff was “not able to work full-time due to” ongoing issues
with attention and fatigue. R. 559. He assessed Plaintiff as
“markedly limited” in a wide range of activities, including his
ability to understand short, simple instructions and his ability
to use public transportation. R. 603-04. He was, however,
working three days a week in the courier position for White
House Insurance at this time, both driving and taking public
transportation to do so. R. 559.
On the same day that Dr. Herman assessed that Plaintiff was
unable to work due to marked cognitive limitations, Plaintiff
had a session with Mr. Sanders. R. 561. He arrived “in good
spirits [and] [u]naccompanied” and scored perfectly on three
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puzzles designed to test his attention, deductive reasoning, and
ability to follow instructions. Id.
PROCEDURAL BACKGROUND
Plaintiff first filed his application for Social Security
Disability Insurance Benefits on January 15, 2014, claiming
disability beginning May 5, 2013. R. 13. The claim was denied on
June 19, 2014, and again upon reconsideration on September 11,
2014. R. 81, 85. A hearing was then held on November 3, 2015,
with ALJ Constance D. Carter presiding. R. 12-13.
On December 1, 2015, the ALJ issued her decision, which
again denied Plaintiff’s disability claim. R. 23. At step one of
the five step disability evaluation process, the ALJ found that
Plaintiff’s per diem work as a courier at the time of the
hearing did not qualify as substantial gainful activity. R. 15.
At step two, she found that both Plaintiff’s degenerative disc
disease and his post-concussion symptoms constituted severe
impairments. R. 15-20. At step three, she found that none of
Plaintiff’s impairments, alone or in combination, met or equaled
a listed impairment under 20 C.F.R. Part 404, Subpart P,
Appendix 1. R. 20.
Therefore, the ALJ proceeded to determine Plaintiff’s RFC.
R. 20-22. First, she found that Plaintiff’s “impairments could
reasonably be expected to cause the alleged symptoms.” R. 21.
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However, the ALJ found Plaintiff’s characterization of the
intensity, persistence, and limiting effects of his symptoms to
be overstated. R. 21-22. The ALJ found the following RFC for
Plaintiff:
[T]he claimant has the [RFC] to perform light work as
defined in 20 CFR 404.1567(b) except he could occasionally
climb ramps or stairs but never climb ladders, ropes or
scaffolds, he could occasionally balance, stoop, kneel,
crouch or crawl, he could occasionally bilaterally reach
overhead, he could perform work limited to simple routine
and repetitive tasks with only occasional decision making
and changes in the work setting. R. 20.
At step four, the ALJ determined that Plaintiff was unable
to perform any past relevant work. R. 22. At step five, the ALJ
found that Plaintiff’s age, education, work experience, and RFC
made him capable of performing jobs that exist in significant
numbers in the national economy. R. 22-23. Plaintiff was found
to be not disabled, and his claim was denied. R. 23.
Plaintiff made a timely request for review of the ALJ’s
decision to the Appeals Council of the Social Security
Administration. R. 9. The request was denied on January 10,
2017, making the ALJ’s decision the final decision of the
Commissioner as to Plaintiff’s claim. R. 1.
The entire case is now ripe for review under 42 U.S.C. §§
405(g) and 1383(c)(3).
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STANDARD
A. Statutory and Regulatory Framework
Under the Social Security Act, 42 U.S.C. § 405(g), a
claimant seeking benefits must prove that he is unable “to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment . . . for a
continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). The claimant “must have a severe impairment(s)
that makes [him] unable to do [his] past relevant work . . . or
any other substantial gainful work that exists in the national
economy.” 20 C.F.R. § 416.905(a).
The Commissioner uses a five-step sequential evaluation
process to assess a claim for disability benefits. See 20 C.F.R.
§ 404.1520(a)(4)(i)-(v). See also Goodermote v. Sec’y of Health
& Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). The evaluation
will end at any step in the process if it is determined that the
claimant is or is not disabled. 20 C.F.R. § 404.1520(a)(4). The
steps are as follows:
1) if the applicant is engaged in substantial gainful work
activity, the application is denied; 2) if the claimant does
not have, or has not had within the relevant time period, a
severe impairment or combination of impairments, the
application is denied; 3) if the impairment meets the
conditions for one of the ‘listed’ impairments in the Social
Security regulations, then the application is granted; 4) if
the applicant’s residual functional capacity [“RFC”] is such
that he or she can still perform past relevant work, the
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application is denied; and 5) if the applicant, given his or
her [RFC], education, work experience, and age, is unable to
do any other work, the application is granted.”
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). A
claimant’s RFC is “the most [he] can still do despite [his]
limitations.” 20 C.F.R. § 404.1545(a)(1). His “impairment(s) . .
. may cause physical and mental limitations that affect what
[he] can do in a work setting.” Id. He can adjust to other work
if he can do any job that “exist[s] in significant numbers in
the national economy.” 20 C.F.R. § 404.1560(c)(1).
The claimant bears the burden of proof for steps one through
four. However, the government bears the burden of proof at step
five to present evidence of specific jobs that the applicant can
still perform. Arocho v. Sec’y of Health & Human Servs., 670
F.2d 374, 375 (1st Cir. 1982).
B. Standard of Review
The Commissioner’s final decision may only be set aside by
the District Court if it resulted from legal error or if the
factual findings were not supported by substantial evidence.
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). In reviewing
for legal error, “[f]ailure of the [ALJ] to apply the correct
legal standards as promulgated by the regulations or failure to
provide the reviewing court with the sufficient basis to
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determine that the [ALJ] applied the correct legal standards are
grounds for reversal.” Weiler v. Shalala, 922 F. Supp. 689, 694
(D. Mass. 1996) (citing Wiggins v. Schweiker, 679 F.2d 1387,
1389 (11th Cir. 1982)). Where application of the correct legal
standard could lead to a different conclusion, the agency’s
decision must be remanded. Ward v. Comm’r of Soc. Sec., 211 F.3d
652, 656 (1st Cir. 2000). However, remand is not necessary if it
“will amount to no more than an empty exercise.” Id. (quoting
Dantran, Inc. v. U.S. Dep’t of Labor, 171 F.3d 58, 73 (1st Cir.
1999)).
DISCUSSION
Plaintiff’s primary contention is that the ALJ committed an
error of law by failing to review the evidence regarding his
treatment by Dr. Sarah Gray and Dr. James Mojica. Docket No. 23
at 4. The ALJ’s December 1, 2015 decision omits any reference to
Gray and Mojica. R. 13-25.
The applicable regulations require the ALJ to address the
opinion of any treating medical source. 20 C.F.R. §
404.1527(c)(2). An ALJ must “always give good reasons in [the]
notice of determination or decision for the weight [given to the
claimant’s] treating source’s medical opinion.” Id. A treating
source is a claimant’s “own acceptable medical source who
provides . . . medical treatment or evaluation and who has, or
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has had, an ongoing treatment relationship with [the claimant].”
Id. at § 404.1527(a)(2). An ongoing treatment relationship
exists where a claimant visits the treating source “with a
frequency consistent with accepted medical practice for the type
of treatment and/or evaluation required for [the claimant’s]
medical condition.” Id.
Dr. Gray is a treating source who saw Plaintiff ten times
from June through August 2015. R. 564-96. These visits occurred
almost every week. Id. Weekly visits are of “a frequency
consistent with accepted medical practice” for the treatment of
depression. 20 C.F.R. § 404.1527(a)(2). The ALJ committed an
error of law when she failed to provide any discussion of the
weight that she assigned to Dr. Gray’s opinion as to the nature
and limiting effects of Plaintiff’s depression and other
cognitive impairments. Id. at § 404.1527(c)(2). The Court need
not address whether Dr. Mojica also qualifies as a treating
source, as the failure to weigh Dr. Gray’s opinion warrants
remand.
Defendant argues that the ALJ’s failure to evaluate Dr.
Gray’s records was harmless for several reasons. First, it
contends that Dr. Gray’s opinion is based on Plaintiff’s selfreported symptoms, unsubstantiated by any objective findings.
J.B. v. Astrue, 738 F. Supp. 2d 260, 264-65 (D. Mass. 2010)
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(citing Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.
2008) for the proposition that “[an] ALJ may reject [a] treating
source’s opinion if it is based exclusively on claimant’s
subjective complaints that have been properly discounted”).
Second, Dr. Gray expressed no opinion on Plaintiff’s ability to
work, and in the government’s view, her findings are largely
consistent with the RFC determined by the ALJ. Third, Dr. Gray’s
account of Plaintiff’s failure to follow through with prescribed
CBT exercises would actually militate against his claim for
benefits.
While these arguments may have merit, the Commissioner, not
the Court, has the obligation to weigh conflicting medical
evidence in the record. DaSilva-Santos v. Astrue, 596 F. Supp.
2d 181, 185 (D. Mass. 2009) (“Drawing factual inferences, making
credibility determinations, and resolving conflicts in the
evidence are responsibilities of the Commissioner.”). It is also
conceivable that Dr. Gray’s diagnosis of “major depressive
disorder,” in conjunction with the opinion of the other treating
physician Dr. Herman could lead to a finding of disability. On
remand, the ALJ must provide good reasons for the weight
assigned to the opinion of all treatment providers.
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ORDER
The Court DENIES Defendant’s Motion to Affirm (Docket No.
24), and ALLOWS IN PART Plaintiff’s Motion to Reverse (Docket
No. 22). Pursuant to 42 U.S.C. § 405(g), the Court VACATES the
Commissioner’s decision and REMANDS this matter.
/s/ PATTI B. SARIS
Hon. Patti B. Saris
Chief U.S. District Judge
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