Patoski v. Berryhill
Filing
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Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER.In accordance with the foregoing, plaintiff's motion for judgment on the pleadings for a reversal or remand of the Comissioner's decision (Docket No. 11 ) is DENIED and defendant's motion for an order affirming the decision of the Commissioner (Docket No. 21 ) is ALLOWED.So ordered. (Franklin, Yvonne)
United States District Court
District of Massachusetts
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Susan W. Patoski,
Plaintiff,
v.
Nancy A. Berryhill,
Defendant.
Civil Action No.
17-10799-NMG
MEMORANDUM & ORDER
GORTON, J.
Plaintiff Susan W. Patoski (“Patoski” or “plaintiff”) seeks
judicial review of the denial of her application for disability
insurance benefits by defendant, Nancy A. Berryhill (“the
Commissioner” or “defendant”), in her official capacity as
Commissioner of the Social Security Administration (“SSA”).
Pending before the Court are plaintiff’s motion to reverse or
remand the Commissioner’s decision and defendant’s motion to
affirm the same.
For the reasons that follow, plaintiff’s
motion will be denied and the Commissioner’s motion will be
allowed.
I.
Background
A.
Employment History and Alleged Disability
Patoski was born in 1950.
She resides in Marblehead,
Massachusetts, is married and has one child.
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She finished
college and graduate school and worked as a financial services
analyst from 1985 to 1997.
From the beginning of her
employment, Patoski had accommodations to account for her
psychiatric and physical disorders.
Beginning in 1985,
Patoski’s health declined and, by 1997, she was unable to work
as a financial analyst.
Patoski tried unsuccessfully to go back
to school in 2000 and has not maintained full time employment
since 1997.
She filed an application for social security
disability (“SSD”) under Title II of the Social Security Act
(“the Act”), 42 U.S.C. §§ 216(i) and 223(d), in November, 2013.
For purposes of her application for disability insurance
benefits, her alleged onset date (“AOD”) is May 1, 2001, the
date on which she started her treatment for breast cancer.
B.
Procedural Background
Patoski’s initial application for disability benefits was
filed on November 8, 2013.
Her disability claim was predicated
on her obsessive compulsive disorder (“OCD”), depression,
cervical disc damage, headaches, breast cancer and severe
anxiety stemming from those conditions.
Her application was
denied in October, 2014, and, upon reconsideration, further
denied in June, 2015.
She filed a request for a hearing and
review of the SSA’s decision.
That hearing was held on August
16, 2016, before Administrative Law Judge Sujata Rodgers (“the
ALJ”).
In September, 2016, the ALJ issued a partially favorable
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decision finding that Patoski was disabled from May 1, 2001,
through May 1, 2002.
The ALJ also found, however, that
Patoski’s symptoms after May 2, 2002, were not disabling.
Patoski appealed the ALJ’s decision to the Social Security
Administration Appeals Council (“the Appeals Council”).
In
March, 2017, the Appeals Council issued a ruling adopting the
ALJ’s decision and clarifying that Patoski is not entitled to
any disability benefits.
C.
The ALJ’s Decision
The ALJ found that Patoski was disabled while undergoing
treatment for breast cancer from May 1, 2001, through May 1,
2002 (“the treatment period”).
Having so found, the ALJ applied
an eight-step analysis to determine whether Patoski’s disability
continued through December 31, 2002, which is her date last
insured (“DLI”).
The ALJ then found that Patoski was not
disabled beginning on May 2, 2002, through December 31, 2002
(“the post-treatment period”), and continuing through the date
of the decision.
The ALJ relied upon testimony presented at the
disability hearing as well as medical reports from doctors and
health professionals.
At step one of the analysis, the ALJ determined that
Patoski was not engaged in substantial gainful activity.
At
step two, the ALJ determined that Patoski did not have an
impairment or combination of impairments that met or medically
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equaled the severity of the listed impairments in 20 C.F.R. §§
404.1520(d), 404.1525 and 404.1526.
At step three, the ALJ
concluded that medical improvement had occurred as of May 2,
2002.
At step four, the ALJ found that this medical improvement
was related to Patoski’s ability to work and that Patoski’s
functional capacity for basic work activities increased after
her breast cancer treatment concluded on May 1, 2002.
Because
step five applies only if medical improvement is not related to
the ability to work, the ALJ declined to make a step-five
finding.
At step six, the ALJ determined that Patoski had the
following severe impairments: cervical radiculopathy, breast
cancer, OCD, anxiety and depression.
Before reaching step seven, the ALJ found that, after the
treatment period, Patoski was no longer permitted to be absent
from work at least two days per month for treatment of her
medical impairments.
Patoski’s residual functional capacity
(“RFC”) was otherwise unchanged between the treatment period and
the post-treatment period.
At step seven, the ALJ concluded
Patoski was unable to perform her past relevant work.
At step
eight, the ALJ determined that, considering Patoski’s background
and the post-treatment RFC finding, Patoski was able to perform
a significant number of jobs in the national economy that
existed during the post-treatment period and after her DLI.
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Furthermore, the ALJ determined that Patoski remained
insured through December 31, 2002, which is her DLI.
Patoski
was therefore required to establish disability on or before the
DLI in order to be entitled to a period of disability and
disability insurance benefits. See 42 U.S.C. §§ 423 (a)(A) &
(c)(1).
D.
The Appeals Council’s Decision
Patoski timely appealed the ALJ’s decision and review was
granted by the Social Security Administration Appeals Council
(“the Appeals Council”).
In March, 2017, the Appeals Council
adopted the ALJ’s decision regarding all issues in this case and
modified the decision to clarify that Patoski was not entitled
to a period of disability or benefits from May 1, 2001, to May
1, 2002, because she applied too long after her disability
ceased. See 20 C.F.R. §§ 404.621(d) and 404.320(b)(3).
Patoski filed her complaint in this action on May 5, 2017,
alleging that the ALJ failed to consider pertinent evidence and
did not properly conduct the analysis under 20 C.F.R.
§§ 404.1520(a), 404.1527(d), 404.1529(c) and 404.1594.
Patoski
also alleged that the Appeals Council did not 1) consider her
arguments or 2) provide notice that it was limiting the issues
for review to those mentioned in its notice of proposed action
sent to Patoski on November 7, 2016.
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II.
Pending Motions
A. Legal Standard
The Act gives United States District Courts (“District
Courts”) the power to affirm, modify or reverse an ALJ’s
decision or to remand the case for a rehearing. 42 U.S.C.
§ 405(g).
A District Court’s review of an ALJ decision is not,
however, de novo. See Lizotte v. Sec’y of Health & Human Servs.,
654 F.2d 127, 128 (1st Cir. 1981).
The Act provides that the
findings of the Commissioner are conclusive if they are
“supported by substantial evidence” and the Commissioner has
applied the correct legal standard. See 42 U.S.C. § 405(g);
Seavey v. Barhart, 276 F.3d 1, 9 (1st Cir. 2001).
If those
criteria are satisfied, the Court must uphold the Commissioner’s
decision even if the record could justify a different
conclusion. Evangelista v. Sec’y of Health & Human Servs., 826
F.2d 136, 144 (1st Cir. 1987).
Substantial evidence means
evidence “reasonably sufficient” to support the ALJ’s
conclusion. Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181,
184 (1st Cir. 1998).
B.
Application
Patoski claims that the ALJ erred in finding her capable of
light work and not disabled during and after the post-treatment
period by 1) failing to rely on substantial medical evidence in
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the record to support the mental RFC finding, 2) failing to rely
on expert evidence to support the physical RFC finding and
3) affording undue weight to the opinions of certain doctors in
supporting both the physical and mental RFC finding.
Patoski
further contends that the Appeals Council erred in its decision
because it failed to consider her arguments or provide notice of
the issues it would consider on appeal.
1. Medical Evidence in the Record
Patoski contends the ALJ’s conclusion is not based on
substantial medical evidence in the record but rather on a
layman’s view of the importance of isolated events.
The
Commissioner denies those allegations and responds that the
ALJ’s conclusions were supported by substantial evidence in the
record, including Dr. Joan Kellerman’s opinion, Patoski’s
testimony and her Global Assessment of Functioning (“GAF”)
scores.
Moreover, the Commissioner submits that even if the ALJ
erred, Patoski cannot establish reversible error because she
cannot establish that any error caused her prejudice.
To determine whether an individual is disabled, the ALJ
must support his/her decision with substantial evidence in the
record. See 42 U.S.C. § 405(g).
The United States Supreme Court
has held that substantial evidence in this context is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion [and must constitute] more
than a mere scintilla.
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Richardson v. Perales, 402 U.S. 389, 401 (1971).
Dr. Kellerman, a state agency psychologist, reviewed
evidence in the record and found Patoski did not have any mental
limitations beyond those described in the post-treatment RFC
finding.
Because Dr. Kellerman is a state agency psychologist,
it was appropriate for the ALJ to adopt Dr. Kellerman’s opinion.
See 20 C.F.R. § 404.1527(c)(6).
Moreover, Patoski testified that she was capable of
performing many daily activities during and after the posttreatment period, including driving, shopping, handling finances
and attending dinner with family and friends.
Adjudicators are
entitled to rely on evidence of daily activities to determine an
individual’s degree of impairment. See 20 C.F.R.
§ 404.1529(c)(3)(i).
Finally, Patoski’s GAF score was 60 during and after the
post-treatment period, which the ALJ determined indicates only a
moderate impairment in overall functioning.
Although GAF scores
are not determinative, it is appropriate for the ALJ to consider
an individual’s GAF score when assessing functional ability. See
Dietz v. Astrue, No. 08-30123, 2009 WL 1532348, at *6 n.4 (D.
Mass. May 29, 2009) (holding that although GAF scores are not
determinative, they may help the ALJ assess an individual’s
functional ability).
The ALJ considered Patoski’s GAF score and
found it consistent with the evidence in the record as a whole
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showing Patoski was not disabled during and after the posttreatment period.
Accordingly, the ALJ’s decision was appropriately based on
substantial evidence in the record because Dr. Kellerman’s
opinion, Patoski’s description of her daily activities and her
GAF score collectively constitute more than a scintilla of
evidence. See Richardson, 402 U.S. at 401 (holding that
substantial evidence is more than a mere scintilla).
2.
The Weight of Expert Opinions in the Record
Patoski also avers that the ALJ erred in weighing the
medical opinions in the record because she gave little weight to
opinion evidence from 1) Dr. Maria Lynn Buttolph, a
Massachusetts General Hospital (“MGH”) psychiatrist who treated
Patoski during and after the post-treatment period, 2) Dr. Linda
Shafer, an MGH psychiatrist who treated Patoski after the posttreatment period, 3) Dr. Anne Chosak, an MGH psychologist who
treated Patoski during the post-treatment period, 4) Dr. Feng
Ge, Patoski’s primary care physician since July, 2008, and
5) Dr. Karen Krag, Patoski’s primary oncologist from 2001 to
2014.
The Commissioner denies those characterizations and
maintains that the ALJ appropriately weighed all the evidence in
the record.
Moreover, the Commissioner submits that even if the
ALJ erred, Patoski cannot establish reversible error because she
cannot establish that any error caused her prejudice.
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To determine whether an individual is disabled, the ALJ
must weigh several potentially conflicting medical opinions.
Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222
(1st Cir. 1981).
In assessing opinions, the ALJ may consider
whether they are consistent with the “record as a whole”. 20
C.F.R. § 416.927(c)(4).
Where the opinion of a treating source
is not treated as controlling, the ALJ determines how much
weight to afford it. See Genereux v. Berryhill, No. 15-13227,
2017 WL 1202645, at *2 (D. Mass. Mar. 31, 2017).
This inquiry
involves multiple factors including: the length and nature of
the treatment relationship, whether the source provided evidence
in support of the opinion, whether the opinion is consistent
with the record as a whole and whether the source is a
specialist. 20 C.F.R. § 416.927(c).
The ALJ must give “good
reasons” for the weight assigned to each opinion. Id.
a. Expert Opinions Consistent with the Record as a
Whole
Patoski claims the opinions of Dr. Buttolph, Dr. Shafer,
Dr. Chosak, Dr. Ge and Dr. Krag are consistent with the record
as a whole and should be given more weight because Dr.
Kellerman’s contradictory opinion did not consider all the
evidence in the record and Patoski’s activities of daily living
should not outweigh medical evidence in the record.
Patoski
also contends that the ALJ’s partial dismissal of the opinion of
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Dr. Krag was based on a layman’s view of isolated events rather
than on substantial medical evidence in the record.
The
Commissioner denies those allegations and maintains that the ALJ
gave appropriate weight to Dr. Kellerman’s opinion and to
Patoski’s daily activities and appropriately discounted the
opinions of Dr. Buttolph, Dr. Shafer, Dr. Chosak, Dr. Ge and Dr.
Krag because they are inconsistent with substantial evidence in
the record.
The ALJ may discount an opinion if it is inconsistent with
the opinion of the record as a whole.
See Purdy v. Berryhill,
887 F.3d 7, 13 (1st Cir. 2018)(holding that a treating
physician's opinion is not controlling if it is inconsistent
with other substantial evidence in the record).
Moreover, to be
eligible for benefits, a claimant must demonstrate that her
impairments reached a disabling level of severity by the DLI.
See Tsouvalas v. Berryhill, 265 F. Supp. 3d 124, 129 (D. Mass.
2017).
The ALJ may consider medical evidence after the DLI
for what light (if any) it sheds on the question whether
claimant's impairment(s) reached disabling severity before
claimant’s insured status expired.
Rivera v. Sec’y of Health & Human Servs., 19 F.3d 1427 (1st Cir.
1994) (unpublished table opinion) (modifications in original).
If medical evidence after the DLI differs, it is the ALJ’s duty
to draw inferences from the record and resolve conflicts of
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evidence. See Ortiz v. Sec’y of Health & Human Servs., 955 F.2d
765, 769 (1st Cir. 1991).
It was appropriate for the ALJ to discount the opinions of
Dr. Buttolph, Dr. Shafer and Dr. Chosak because they were not
fully consistent with the substantial evidence in the case
record, including Dr. Kellerman’s opinion, Patoski’s description
of her daily activities and GAF scores and evidence showing
Patoski improved with medication. See 20 C.F.R. § 416.927(c)(4);
see also Coren v. Colvin, 253 F. Supp. 3d 356, 359 (D. Mass.
2017) (holding that daily activities, when consistent with other
factors in the record, can be used to support an ALJ’s
determination that other medical evidence is inconsistent with
the record as a whole).
Moreover, it was appropriate for the
ALJ to determine that Dr. Kellerman’s opinion was consistent
with the record but Dr. Buttolph’s opinion was not because it is
the province of the ALJ to resolve conflicts of evidence. See
Ortiz, 955 F.2d at 769.
Likewise, it was appropriate for the ALJ to discount the
portion of Dr. Krag’s opinion referencing Patoski’s fatigue
during and after the post-treatment period because the record
does not document significant fatigue during the post-treatment
period.
Patoski proffers three documents referring to her
fatigue during the post-treatment period: 1) Dr. Krag’s opinion,
2) Dr. Buttolph’s opinion and 3) Patoski’s own handwritten note
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complaining of fatigue.
None of those documents reference
severe fatigue during or after the post-treatment period and the
ALJ concluded that Patoski did not suffer from severe fatigue
during that period.
Accordingly, the conclusion of the ALJ was
appropriately based on the fact that no medical evidence in the
record documented Patoski having severe fatigue during or after
the post-treatment period. See 20 C.F.R. § 416.927(c)(4).
Moreover, it was appropriate for the ALJ to withhold
deference to the portion of the opinions of Drs. Krag, Buttolph,
Shafer and Ge maintaining that Patoski was unable to work fulltime during the post-treatment period because inability to work
is not a medical opinion. Morales–Alejandra v. Med. Card Sys.,
Inc., 486 F.3d 693, 700 n.7 (1st Cir. 2007).
The opinion of a
treating source on the question of severity of impairment will
be given controlling weight if it is well-supported by medical
evidence and not inconsistent with other substantial evidence in
the record. Ormon v. Astrue, 497 Fed. Appx. 81, 87 (1st Cir.
2012).
The ALJ is, however, responsible for drawing inferences
from the record, Ortiz 955 F.2d at 769, and making the ultimate
determination of whether or not an individual is disabled and
unable to work, 20 C.F.R. § 416.927(d).
This Court concludes that there is substantial evidence in
the record to support the decision of the ALJ.
She
appropriately discounted the opinions of Drs. Buttolph, Shafer,
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Chosak, Ge and Krag because those opinions were inconsistent
with substantial evidence in the record.
b. Medical Opinions Based on a Limited Treatment
Relationship
In addition, Patoski claims that the opinions of her four
doctors should not be discounted because they maintained
significant treatment relationships with Patoski either prior to
or after the post-treatment period.
The Commissioner maintains
that because those doctors had a limited treatment relationship
with Patoski during the post-treatment period, their opinions
regarding the post-treatment period should be discounted.
The
Commissioner also minimizes the relevancy of those treatment
relationships after the post-treatment period in assessing
Patoski’s disability during the post-treatment period.
The ALJ is allowed to consider the length of treatment
relationship when determining how much weight to afford to a
physician’s opinion. See Nelson v. Colvin, No. 14-10254 2015 WL
1387864, at *7 (D. Mass. Mar. 25, 2015) (holding that a medical
opinion should be assessed giving consideration to the length of
the treatment relationship and the frequency of examination).
The ALJ is also allowed to consider the underlying evidence
supporting a medical opinion when determining how much weight to
grant to that medical opinion. See 20 C.F.R. § 404.1527(c)(3).
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The ALJ found that Drs. Buttolph, Shafer and Ge each had a
limited treatment relationship with Patoski before and during
the post-treatment period.
Dr. Buttolph, for example, had one
encounter with Patoski before the post-treatment period and two
encounters with Patoski during the post-treatment period.
The
ALJ can discount a medical opinion based on frequency of
examination and length and nature of the treatment relationship.
See 20 C.F.R. §§ 416.927(c)(2)(i) and (ii).
Accordingly, it was
appropriate for the ALJ to grant minimal weight to the opinions
of Drs. Buttolph, Shafer and Ge regarding the post-treatment
period.
Moreover, it was suitable for the ALJ to discount the
opinions of Drs. Buttolph, Shafer and Ge regarding the time
after the post-treatment period.
The ALJ may assess medical
evidence after the DLI to determine if the claimant was disabled
prior to the DLI, Rivera 19 F.3d at 1427, but it is also her
responsibility to draw inferences from the record, Ortiz 955
F.2d at 769.
Accordingly, it was fitting for the ALJ to find
that the opinions of Drs. Buttolph and Ge rendered after the
post-treatment period did not demonstrate that Patoski was
disabled during the post-treatment period.
Because the opinion
of Dr. Shafer was largely based on the opinion of Dr. Buttolph,
it was properly discounted as well.
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The ALJ found that Dr. Chosak did not have treatment notes
supporting her opinion of Patoski and that Dr. Buttolph provided
only summaries of her visits with Patoski.
The ALJ can discount
a medical opinion when it is not corroborated by adequate
supporting explanations or laboratory findings. See 20 C.F.R.
§ 404.1527(c)(3); see also Dupras v. Colvin, No. 14-13967 2016
WL 845259, at *7 (D. Mass. Mar. 4, 2016) (“The ALJ was justified
in discounting the summary assessment, especially in light of
the lack of support in the actual treatment notes and
inconsistency with the rest of the record.”).
Accordingly, it
was within the ALJ’s discretion to discount the opinion of Dr.
Chosak regarding the post-treatment period.
The ALJ’s conclusions must be accepted so long as there is
“substantial evidence” in the record to support them. Rodriguez
Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 2 (1st Cir.
1987).
Accordingly, the decision will be affirmed.
2. Decision of Appeals Council
Patoski asserts that the Appeals Council failed to consider
her arguments and did not provide adequate notice that it was
limiting its consideration to the issues included in the notice
of proposed action.
The Commissioner denies those allegations
and maintains that the Appeals Council considered the evidence
in the record and provided adequate notice to Patoski regarding
the issues it would review on appeal.
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The Appeals Council held that the decision of the ALJ was
supported by substantial evidence in the record and adopted her
decision in full.
The Appeals Council went on to clarify that
Patoski was not entitled to disability or benefits from May 1,
2001, to May 2, 2002, because her claim was untimely.
Because
the Appeals Council reviewed the evidence in the record, it was
entitled to adopt in full or modify the decision and findings of
the ALJ’s decision. See 20 C.F.R. § 404.979.
Patoski’s contention that the notice was inadequate is
unavailing.
The Appeals Council provided notice that it would
limit the issues it considers to evidence in the record and the
timeliness of Patoski’s claim.
The Appeals Council sent its
notice of proposed action to Patoski on November 7, 2016 (“the
notice”).
The Appeals Council proposed to issue a decision
adopting the decision of the ALJ in full and finding Patoski
time-barred from receiving disability insurance benefits
pursuant to 20 C.F.R. §§ 404.621(a) and 404.320(b)(3).
The Appeals Council notified Patoski that it would consider
any comments or new and material evidence submitted within 30
days from the date of the notice.
In its decision, the Appeals
Council noted it had received no comments or additional evidence
from Patoski.
Because the Appeals Council limited its decision
to issues it mentioned in the notice, the Appeals Council
provided adequate notice to Patoski regarding what issues it
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would consider. See 20 C.F.R. § 404.976(a); see also Kennedy v.
Bowen, 814 F.2d 1523, 1524-25 (11th Cir. 1987) (holding that
once a claimant is given notice, she may not object to the
Appeals Council’s authority to review any aspect of the ALJ’s
decision).
Accordingly, the decision of the Appeals Council as
to Patoski’s disability will be affirmed.
ORDER
In accordance with the foregoing, plaintiff’s motion for
judgment on the pleadings for a reversal or remand of the
Commissioner’s decision (Docket No. 11) is DENIED and
defendant’s motion for an order affirming the decision of the
Commissioner (Docket No. 21) is ALLOWED.
So ordered.
/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated July 30, 2018
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