Thiveerge v. Astrue
Filing
18
Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered denying 13 Motion for Judgment on the Pleadings; granting 16 Motion for Order Affirming Decision of Commissioner (Woodlock, Douglas)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MICHAEL JAMES THIVIERGE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
Defendant.
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CIVIL ACTION NO.
12-30144-DPW
MEMORANDUM AND ORDER
June 10, 2013
Michael James Thivierge seeks judicial review of the denial
of his application for Supplemental Security Income, 42 U.S.C.
§ 1381 et seq., as provided by 42 U.S.C. § 405(g).
I. BACKGROUND
Thivierge originally applied for benefits in November 2009
based on a variety of disabilities, and claimed that he was
disabled as of January 1, 1992.
The Social Security
Administration denied the application first in May 2010 and again
upon reconsideration in January 2011.
Thivierge requested a
hearing before an ALJ in March 2011, and a hearing was scheduled
for January 18, 2012.
In the interim, Thivierge obtained non-
attorney representation.
At the January 18 hearing, ALJ Penny
Loucas allowed Thivierge extra time to develop the record, and
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held an additional hearing on April 4, 2012.
At that hearing,
Thivierge amended his alleged disability onset date to June 24,
2010, the day after he fell twenty-five feet from a ladder while
working as a roofer.
AR 208.
On April 10, 2012, the ALJ determined Thivierge was not
disabled.
The ALJ followed the five steps for evaluating
disability prescribed by 20 C.F.R. §§ 416.920(a)(4)(i)-(v),
416.960(c)(1).
First, she found that Thivierge had not engaged
in substantial gainful activity since his disability onset date.
AR 67-68.
Second, she concluded that several of Thivierge’s
physical impairments from the fall (fractures to several
transverse processes of his vertebrae, his left posterial lateral
11th rib and left scapula, disc herniation, and bilateral
shoulder tendonitis) were severe.
AR 68.
However, she concluded
that other physical impairments (chronic obstructive pulmonary
disorder, renal cysts/nephrolithiasis, and gout) and mental
impairments (depression, anxiety disorder, and a history of
substance abuse) were not severe, either singly or in
combination.
AR 70-73.
Third, she determined that Thivierge had
the Residual Functional Capacity for medium work, subject to
certain limitations:
(1) no climbing; (2) only occasional
bilateral overhead lifting and never more than 20 pounds; (3)
only balancing, bending, kneeling, crouching, and crawling; and
(4) no concentrated exposure to hazards such as dangerous
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machinery.
AR 74-78.
Fourth, she found that Thivierge could not
perform his past relevant work as a construction laborer.
AR 78.
And fifth, relying on a vocational expert’s testimony, she
determined that Thivierge could perform jobs existing in
significant numbers in the national economy, such as laundry
worker, grocery bagger, and food service worker.
AR 78-79.
As a
result, the ALJ concluded that Thivierge failed to establish an
“inability 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 which 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).
On June 25, 2012, the Social Security Appeals Council denied
administrative review and adopted the ALJ’s decision as the final
decision of the Commissioner.
Thivierge filed for judicial
review in this court on August 10, 2012.
He has moved for
judgment on the pleadings, seeking to overturn the Commissioner’s
denial of his application and requesting remand to a new ALJ.
The government, for its part, has moved to affirm the decision of
the Commissioner.
My task is to insure that the ALJ applied the proper legal
standards--a point as to which there is no real dispute--and to
determine whether the factual findings grounding the denial of
Thivierge’s application are supported by substantial evidence in
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the record.
42 U.S.C. § 405(g); Manso-Pizarro v. Sec'y of Health
& Human Servs., 76 F.3d 15, 16 (1st Cir. 1996).
I must uphold
the ALJ’s findings “if a reasonable mind, reviewing the evidence
in the record as a whole, could accept it as adequate to support
[her] conclusion,”
Rodriguez v. Sec'y of Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981).
The ALJ is primarily
responsible for weighing the evidence and making credibility
determinations.
Id.
Thivierge does not now challenge the ALJ’s findings as to
his physical impairments.
Those finding were, in any event,
supported by substantial evidence.
Rather, he argues the ALJ
erred in finding that he lacked severe mental impairments-namely, depression and anxiety--and that the ALJ exhibited bias
by unduly dwelling on his history of substance abuse.
II. MEDICAL HISTORY
At the time of the ALJ’s determination, Thivierge was 56
years old.
He was separated from his wife, and lived with this
80 year-old mother and developmentally disabled brother.
He had a history of alcohol and drug abuse.
AR440.
AR 439.
In 2009,
Thivierge had attempted to commit suicide by drug overdose.
439.
AR
At that time, he was hospitalized for one week, his first
and only psychiatric hospitalization.
AR 440.
On May 6, 2010, psychologist Leon Hutt interviewed
Thivierge.
Thivierge reported that he had in the past abused
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alcohol, opiates, and benzodiazepines.
He told Dr. Hutt about
his suicide attempt and said he had been seeing a psychiatrist
for about three years.
AR 439-40.
2006 installing doors and windows.
Thivierge had last worked in
AR 439.
He reported being
depressed because his health issues prevented him from working as
a roofer and he “[didn’t] know what to do anymore.”
AR 440.
He
spent some time taking care of his mother, but also described
going for walks and bike rides, and said he had friends and saw
people on a regular basis.
AR 440.
Dr. Hutt observed that
Thivierge’s speech was generally “relevant and coherent.”
AR 440.
He had fair attentional capacity, “appropriate” affect,
normal mood, no indication of an impaired memory, no oddities of
thinking or speech, and no indications of psychosis.
AR 440-41.
Accordingly, Dr. Hutt diagnosed Thivierge as suffering from
adjustment disorder with depressed mood.
AR 441.
Dr. Hutt
assigned Thivierge a Global Assessment of Functioning (“GAF”)
score of 75, AR 441, indicating that his symptoms were “transient
and expectable reactions to psychological stressors” with “no
more than slight impairment in social, occupational, or school
functioning.”
See DIAGNOSTIC
AND
STATISTICAL MANUAL
DSM-IV-TR, at 34 (4th ed. 2000).
OF
MENTAL DISORDERS:
Dr. Hutt concluded that
Thivierge could understand, follow, and remember work-related
instructions, and “psychologically tolerate stressors associated
with employment.”
AR 441.
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On May 11, 2010, state agency psychologist Ruth Aisenberg
concluded that, based on his medical records, Thivierge was not
severely impaired.
AR 443.
After his accident on July 23, 2010, Thivierge was treated
with Percocet.
However, he was advised by a treating physician
shortly after the accident to taper off due to a history of
opiate dependence.
AR 711.
When Thivierge went to the hospital
for gout-related knee pain in July 2010, he reported that he had
been buying Percocet off the street to treat his pain and had
used coacaine and heroin two days earlier.
AR 559-60.
began treatment at a methadone clinic that summer.
Thivierge
AR 727.
On January 1, 2011, state agency consultant Liese FranklinZitskat also conducted a psychological examination of Thivierge.
Thivierge told Dr. Franklin-Zitskat that he had been
“intermittently depressed” for the last few years, citing his
marital separation, his difficulty finding a job, and his
mother’s and his brother’s mental problems.
AR725-26.
Nevertheless, Thivierge said he was “currently looking for work”
and “believe[d] that he could possibly perform a desk job.”
726.
AR
He said he dealt with stress by “staying on his
medications” and trying to “walk away” from stressful situations.
AR 726.
Thivierge also reported he could carry out and remember
written instructions and complete tasks in a timely fashion; he
reported no difficulty with traveling, personal care, or
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activities of daily living.
ideation.
AR 726.
He denied any suicidal
AR 728.
Dr. Franklin-Zitskat described Thivierge as polite,
cooperative, alert and well-oriented, with “normal” speech,
“appropriate” affect, and “good” insight and judgment.
AR 728.
Thivierge was “stable,” Franklin-Zitskat said, but she noted that
on other days he had been “irritable and depressed.”
AR 728.
She also noted that his concentration seemed “mildly impaired”;
his thought process was “generally goal directed,” but “became
tangential at times.”
AR 728.
Dr. Franklin-Zitskat diagnosed
Thivierge as suffering from an adjustment disorder with mixed
anxiety and depressed mood, and alcohol and opioid dependence in
early full remission.
Ar 728.
Like Dr. Hutt, Dr.
Franklin-Zitskat assessed a GAF score of 75.
She found that
Thivierge was “generally functioning well psychologically, with
some mild depressive and anxiety symptoms related to life
stressors.”
His mental health prognosis was “good, provided he
remains clean and sober,” she concluded.
AR 728.
On September 26, 2011, Thivierge began treatment with
Valerie Sharpe, a psychiatrist.
Thivierge reported that he had
been “under a lot of stress” due to family problems and
unemployment.
He also said that, because his prior psychiatrist
had retired recently, he had been unable to renew his alprazolam
prescription.
Thivierge admitted to “buying Xanax, Valium and
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Klonopin off the streets out of desperation.” AR 813.
Although
he “constantly worrie[d]” about his mother and felt depressed and
anxious at home, Thivierge was “able to enjoy himself” when he
got out of the house and painted houses with a friend.
He denied problems with panic attacks.
AR 813.
He also participated in
anger management therapy, as a result of which he felt “able to
cope with his anger better.”
AR 813.
Dr. Sharpe described
Thivierge as “cooperative” and “agitated at times but . . .
generally calm,” with an “appropriate” affect. AR 813.
She noted
that his thought process was “often circumstantial and
tangential,” but that he was “alert and oriented in all spheres,”
and “not delusional or paranoid.”
AR 814.
She noted several
times that he was “mainly focused” on starting back on
benzodiazepines.
AR 814.
Dr. Sharpe expressed concern about the
possibility of further drug abuse, but temporarily prescribed
Klonopin, in part because Thivierge “seem[ed] to be motivated to
see a psychiatrist and use only prescribed medications.” AR 814.
Dr. Sharpe assigned Thivierge a GAF score of 55, AR 815, which is
characterized as showing “moderate symptoms” or “moderate
difficulty in social, occupational, or school functioning.”
DSM-
IV-TR, at 34.
On October 3, 2011, Thivierge reported to Dr. Sharpe that
the Klonopin was helping to “take the edge off,” and that he had
not bought any more drugs off the street.
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AR 939.
Thivierge had
also received a $25,000 worker’s compensation settlement.
208.
AR206-
He used the money to pay off debts and buy a motorcycle,
which put him in a better mood.
AR 939.
Dr. Sharpe agreed that
Thivierge’s mood had improved since their last meeting.
She
noted that his affect was “appropriate,” and that his cognition,
insight, judgment and impulse control were “intact.”
AR 940.
In an October 31, 2011 encounter with Dr. Sharpe, Thivierge
reported he was feeling “lousy” and appeared “moody,” which
Thivierge
dosage.
attributed in part to a decrease in his methadone
AR 936.
Still, he denied significant anxiety or
depression, and he reported eating and sleeping well.
AR 936.
Dr. Sharpe did not note any aberrations in his mental status.
936.
AR
Despite Thivierge’s complaints about his benzodiazepine
dosage, Dr. Sharpe refused to modify his regimen and continued
the prior Klonopin prescription.
AR 937.
On November 28, 2011, Thivierge reported to Dr. Sharpe that
things were “going fairly well.”
AR 933. His family still caused
stress, but he was “coping with them as well as he [could].”
AR
933.
On January 23, 2012, Thivierge told Dr. Sharpe that he had
been “very anxious and depressed” due to “various stressors,”
including his family and his difficulty obtaining disability
benefits.
AR 929.
He stated that he sometimes felt “like he
[was] about to ‘boil over’” and had thought about crashing his
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motorcycle, but “would not actually harm himself.”
AR 929.
Dr.
Sharpe noted that Thivierge was “mainly focused on his issues
with Klonopin,” which he said made him irritable, while Xanax and
Valium had not.
AR 929-30.
Although Thivierge’s mood was
depressed and anxious, his cognition and impulse control remained
“intact,” and his insight and judgment were “fair.”
AR 930.
Dr.
Sharpe discontinued Klonopin, refused to prescribe Xanax in part
due to addictive potential, and instead prescribed Valium as well
as citalopram, an antidepressant.
AR 930.
On February 13, 2012, Thivierge reported feeling “more
mellow” since the change in his medication. He still felt stress,
but was “no longer feeling angry.”
AR 925.
He also stated that
he “no longer crave[d]” prescription or illicit drugs, and that
the prospect of riding his motorcycle was a “big incentive” for
getting off methadone. AR 925.
Dr. Sharpe observed that
Thivierge’s mood was “better” with an “appropriate” affect that
was “noticeably brighter” than at their last appointment.
926.
AR
She described “significant improvement in symptoms of
anxiety, anger and depression” as a result of the medication
change, “in spite of continued stressors.”
AR 926.
III. ANALYSIS
Social Security Administration regulations prescribe
evaluation of mental impairments based on the degree of
limitation in four functional areas: (1) activities of daily
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living; (2) social functioning; (3) concentration, persistence,
or pace; and (4) episodes of decompensation.
§ 416.920a(c)(3).
20 C.F.R.
The regulations inform applicants that, based
on a finding of “mild” ratings in the first three areas and no
episodes of decompensation, “we will generally conclude that your
impairment(s) is not severe, unless the evidence otherwise
indicates that there is more than a minimal limitation in your
ability to do basic work activities.”
§ 416.920a(d)(1).
20 C.F.R.
Based on the medical history described above,
the ALJ found that Thivierge had “mild” limitations in the first
three areas, and no episodes of decompensation during the claimed
disability period.
Thus, consistent with the regulations, she
found that Thivierge did not suffer from a “severe” mental
impairment.
There is substantial evidence in the record to support the
ALJ’s determination.
The diagnoses of Dr. Hutt and Dr. Franklin
Zitskat place Thivierge’s mental impairments squarely in the
“mild” category.
I recognize that Dr. Hutt’s diagnosis may be
entitled to less weight because it pre-dated the July 23, 2010
accident.
Dr. Franklin-Zitskat, however, was able to evaluate
Thivierge after the accident and rendered a diagnosis largely
consistent with that provided by Dr. Hutt.
Their reports show
little limitation on Thivierge’s activities of daily living and,
while meeting with Dr. Franklin-Zitskat, Thivierge actually
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denied any difficulty in this area.
With regard to social
functioning, Thivierge reported to both doctors that he felt
stress at home, but that he fared better outside of that setting,
had friends, and generally got along with co-workers.
As to
concentration, persistence and pace, the doctors found Thivierge
coherent and generally attentive.
Thivierge himself again
reported to Franklin-Zitskat that he was looking for work and
considered himself able to perform a desk job.
The ALJ also
highlighted an instance in which Thivierge’s car malfunctioned,
so he got a ride from his uncle to an appointment with FranklinZitskat; the ALJ reasonably found that this “demonstrated
abilities to problem-solve and pursue solutions.”
AR 73; AR 725.
Finally, as to episodes of decompensation, the only instance in
the record is Thivierge’s 2009 suicide attempt and week-long
hospitalization, both of which pre-dated the amended June 24,
2010 disability onset date.
The ALJ also considered and explained her reasons for not
giving controlling weight to the opinions of Dr. Sharpe regarding
the severity of Thivierge’s mental impairments.
For example, the
ALJ noted that Dr. Sharpe had only been treating Thivierge for a
matter of months.
And, even within that timeframe, Dr. Sharpe’s
assessment of Thivierge significantly improved after changing his
medication.
From these facts, the ALJ reasonably concluded that
the course of treatment with Dr. Sharpe did not establish that
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Thivierge had a severe mental impairment that “lasted or [could]
be expected to last for a continuous period of not less than 12
months.”
42 U.S.C. § 423(d)(1)(A).1
Moreover, even prior to the change in medication, Dr.
Sharpe’s reports indicate few signs of impairment in daily
living.
They also reflect what can fairly be characterized as
mild to moderate concentration problems, because reports of
Thivierge’s thoughts being “circumstantial and tangential” must
be balanced against the report that he was “alert and oriented.”
Moreover, even though Dr. Sharpe’s assigned GAF level reflects an
overall “moderate” impairment in social functioning, her reports
are in other respects largely consistent with a finding of mild
social difficulty.
For example, Thivierge reported the ability
to enjoy himself when he got out of the house and saw friends.
And, entirely consistent with the prior diagnoses, Thivierge had
no episodes of decompensation while being treated with Dr.
Sharpe.
Thus, to the extent Dr. Sharpe’s diagnostic reports differ
from those of Dr. Hutt and Dr. Franklin-Zitskat, they do so only
to a slight degree.
The ALJ weighed Dr. Sharpe’s reports against
the more optimistic earlier evaluations, while giving important
1
Thivierge’s three years of prior psychiatric treatment were
properly disregarded by the ALJ because Thivierge never provided
documentation of such treatment that could meaningfully add to an
assessment of the duration and thus severity of any mental
impairment. AR 71 n.2.
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weight to the marked improvements to Thivierge’s mental health
within a short period of adjustment to his medication, and
without self-medication.
Although others might disagree about
the proper ratings of Thivierge’s functional limitations by
virtue of mental impairment, the ratings ascribed by the ALJ were
supported by substantial evidence and reflected a reasonable view
of only slightly divergent evidence.2
Finally, Thivierge has failed to demonstrate any bias by the
ALJ with respect to his history of drug abuse.
The ALJ
appropriately weighed Thivierge’s history of drug abuse and
behavior during treatment--including frequent reports that he was
2
I also note that, even ascribing more “moderate” functional
limitations to Thivierge, and even taking into account his 2009
suicide attempt and hospitalization, he likely would not have
qualified for the relevant affective disorders or anxiety
disorders included in the regulatory listing of severe
impairments. See 20 C.F.R. Part 404, Subpart P, app. 1,
§§ 12.04, 12.06. Although the criteria are varied, Thivierge
realistically could not qualify without some marked restrictions
in daily living, marked difficulties in social functioning or
concentration, or repeated episodes of decompensation--all
findings unsupported by this record. As a result, the ALJ would
have remained responsible for determining Thivierge’s residual
functional capacity. 20 C.F.R. § 416.920a(d)(3). Because ALJ
Loucas had effectively concluded that Thivierge’s mental health
placed little limitation on his functional capacity, it is
unlikely that the technical difference in labeling those
limitations as “moderate” rather than “mild” would have changed
her assessment of his residual functional capacity or ultimate
disability determination. Cf., e.g., Mills v. Apfel, No.
99-27-P-H, 1999 WL 33117114, at *1 (D. Me. Nov. 24, 1999), report
and recommendation adopted as modified, 84 F. Supp. 2d 146 (D.
Me. 2000), aff'd, 244 F.3d 1 (1st Cir. 2001) (mental impairments
imposing moderate limitations on daily life activities, social
functioning, and concentration did not preclude work as laundry
worker).
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focused on obtaining benzodiazepines--to evaluate his motivation
during treatment and to discredit certain subjective reports of
pain.
AR 76.
Moreover, far from using his history of drug abuse
simply to ignore his mental impairments, the ALJ considered
Thivierge’s history of drug abuse in an effort to bring into
sharper focus the significance of a proper drug treatment regimen
for his mental health.
AR 77.
This was not bias but rather a
legitimate medical consideration, echoed by both Dr.
Franklin-Zitskat, AR 728, and Dr. Sharpe, AR 925-26, 930.
IV. CONCLUSION
For the reasons set forth more fully above, the decision of
the Commissioner is AFFIRMED.
/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
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