LaPlante v. Colvin

Filing 27

Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER Regarding Plaintiff's Motion for Judgment and Defendant's Motion to Affirm the Decision of the Commissioner; for the reasons stated, Plaintiff's 15 motion for summary judgment is DENIED, and the Commissioner's 19 motion for an order affirming the decision is GRANTED. See attached memorandum and order for complete details. (Calderon, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FRANKLIN THOMAS LAPLANTE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security Administration,
Defendant.

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Case No. 3:14-cv-30126-KAR

MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR JUDGMENT
AND DEFENDANT’S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
(Dkt. Nos. 15 & 19)
August 10, 2015
ROBERTSON, U.S.M.J.
I.

Introduction

This action seeks review of a final decision of the Acting Commissioner of Social
Security (“Commissioner”) denying the application of plaintiff Franklin Thomas Laplante
(“Plaintiff”) for Supplemental Security Income (“SSI”). Plaintiff applied for SSI on November
9, 2010, alleging an October 1, 2007 onset of disability, due to problems stemming from bipolar
disorder and a nervous condition (A.R. at 69-70).1 The application was denied initially and on
reconsideration (id. at 80, 92). A hearing was held on October 18, 2012, at which Plaintiff
alleged disability due to bipolar disorder and a nervous condition. The Administrative Law
Judge (“ALJ”) found that Plaintiff was not disabled and denied Plaintiff’s claim (id. at 21-29).
The Appeals Council denied review (id. at 5-8), and, thus, the ALJ’s decision became the final
decision of the Commissioner. This appeal followed.
1

A copy of the Administrative Record (referred to herein as “A.R.”) has been provided to the
court under seal (Dkt. No. 14).

Plaintiff moves for summary judgment against the Commissioner pursuant to Fed. R.
Civ. P. 56 on the grounds that the ALJ’s determination is not supported by “substantial
evidence” under 42 U.S.C. § 1383(c)(3). Pending before this court are Plaintiff’s motion for
summary judgment requesting that the Commissioner’s decision be vacated or remanded for
further proceedings (Dkt. No. 15) and the Commissioner’s motion for an order affirming the
decision (Dkt. No. 19). The parties have consented to this court’s jurisdiction. See 28 U.S.C. §
636(c); Fed. R. Civ. P. 73. For the following reasons, the court will allow the Commissioner’s
motion to affirm and deny Plaintiff’s motion for summary judgment.
II.

Facts

Plaintiff was fifty-four (54) at the time of the hearing (A.R. at 49). He attended high
school through the eleventh grade, but did not earn a high school diploma (id. at 48-49). His last
previous employment was as a welder (id. at 51, 65).
Plaintiff saw Dr. Lawrence Bernstein at Chicopee Medical Center in October of 2008 (id.
at 376). At that visit, the doctor appears to have noted he was bipolar, but indicated that he was
psychologically within normal limits (id. at 376). Plaintiff began seeing Dr. Stanley Glasser in
October of 2009 after leaving Dr. Bernstein because of a “difference in opinion” (id. at 267). He
was treated for high cholesterol by Dr. Glasser who noted that Plaintiff “needs to have a psych
eval” (id. 227). Dr. Glasser referred Plaintiff to psychopharmacologist Geraldine A. Kasulinous,
APRN, PC, FNP-C for treatment (id. at 202).
The most significant notes of treatment in the Administrative Record were prepared by
Ms. Kasulinous, with whom Plaintiff began treatment on November 20, 2009 (id. at 202). She
saw him regularly over the span of almost three years for the purpose of prescribing medication
(id. at 232-249, 280-291, and 336-341). During Plaintiff’s initial evaluation, Ms. Kasulinous

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diagnosed him with bipolar disorder, major depressive disorder (“MDD”), general anxiety
disorder (“GAD”), and a history of alcohol abuse (id. at 203). Ms. Kasulinous prepared a
standard treatment note at each appointment. These notes provide a general picture of
psychological stability.2 In December of 2010, Ms. Kasulinous completed a “Mental Capacity
Exam” in which Plaintiff was generally noted to have marked and extreme limitations (id. at
205-207). In February of 2012, Ms. Kasulinous completed an identical form and Plaintiff’s
impairments improved to moderate and marked (id. at 276-278).3 On August 31, 2011, Ms.
Kasulinous prepared a “Psychiatric Disorder” form, assigning Plaintiff a GAF of 75-80, which
indicates “no more than slight impairment in social, occupational or social functioning” (id. at
271-273). 4

2

With regards to mood/affect Plaintiff was found to be within normal limits for 25 of the 36
visits, being depressed or slightly depressed on 7 visits (id. at 235, 244, 238, 237, 283, 288, 289),
anxious on 4 visits (id. at 234, 288, 285, 283), angry on 2 (id. at 232, 285), irritable on 6 (id. at
234, 232, 289, 288, 285, 283), and labile once (id. at 288). Plaintiff was within normal limits on
the cognition assessment at every visit with the exception of August 15, 2011, when he
reportedly was grandiose (id. at 288). Other than on two occasions, his behavior was within
normal limits. On February 17, 2011, he was slightly hostile and August 15, 2011 he was
reportedly guarded (id. at 232 and 288). His sleep and appetite were consistently reported as
fair, fair to good, or good for each visit (id. at 232 – 249, 280-291, 336-341).
3

The record indicates that Ms. Kasulinous completed a third “Mental Evaluation Exam” on June
26, 2012, but parts of this form are missing from the record (id. at 320-321). From what is
available in the record, it appears that the results of the June 2012 examination largely mirror the
results of the February 2012 examination.
4

A GAF score between 71 and 80 indicates that “[i]f symptoms are present, they are transient
and expectable reactions to psychosocial stressors (e.g., difficulty concentration after family
argument); no more than slight impairment in social, occupational or social functioning (e.g.,
temporarily falling behind in school).” Diagnostic and Statistical Manual of Mental Disorders 34
(American Psych. Assoc., 4th ed., 2000) (“DSM-IV”).

3

On June 14, 2011, Plaintiff was examined by Dr. Robert Sampson, M.D. who was
authorized or contracted by the Massachusetts Disability Determination Services to examine
Plaintiff (id.at 250-256). This was the only occasion on which Dr. Sampson saw Plaintiff. He
based his evaluation on his interview with Plaintiff and progress notes from Ms. Kasulinous (id.
at 250). The interview was “solely for Social Security evaluation” and no therapy was offered or
recommended (id. at 250). Dr. Sampson opined that Plaintiff appeared to be able to understand,
follow, and remember simple instructions (id.). He stated that Plaintiff likely would have
moderate to severe impairments in his interaction with supervisors and co-workers and moderate
to severe impairments in his response to routine work pressures in a competitive work
environment (id.). Dr. Sampson assessed a GAF score of 50-55 (id. at 255). 5
III.

Hearing Testimony

Plaintiff testified to his educational background, employment history, and living situation
(id. at 48, 50-51). He said he did not go anywhere besides the doctor’s office (id. at 55). He
claimed to be uncomfortable in crowds and said his “good days” were days he stayed away from
people (id. at 62, 64). In terms of daily activities, Plaintiff testified that he cooked and did his
own laundry unless his mother did so, and bathed, groomed, and dressed himself (id. at 56). He
walked to the variety store to purchase cigarettes (id. at 60).
When asked why he did not work, Plaintiff stated that nobody wanted to hire him and he
did not like people (id. at 59-60). He also testified that he had been fired from jobs in the past
for drinking on the job and conflicts he had with bosses (id. at 60). Plaintiff stated that he was
5

A GAF score between 41 and 50 reflects “[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).” A GAF score between 51 and 60
reflects “[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).” DSM-IV at 34.
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distracted on the job, made mistakes, and was more distractible when on his medications (id.at
61).
An impartial vocational expert (“VE”) also testified at the hearing. The ALJ posed a
hypothetical question to the VE asking her to identify jobs that would be available for an
individual with the residual functional capacity of no exertional limitations, except the position
should require no more than frequent grasping, pinching, or twisting within a dominant lefthanded arm (id. at 66). Work should be limited to simple and unskilled tasks, entail no more
than incidental public contact, and no more than occasional co-worker contact (id.). The VE
identified three jobs for such an individual; namely a cleaner, a warehouse worker, and a laundry
worker (id. at 66-67).
IV.

Discussion
A. Standard of Review

The District Court may enter a judgment affirming, modifying, or reversing the final
decision of the Commissioner, with or without remanding for rehearing. 42 U.S.C. § 1383(c)(3).
Judicial review “is limited to determining 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 court reviews questions of law de novo, but must defer to the ALJ’s
findings of fact if they are supported by substantial evidence. Id. (citing Nguyen v. Chater, 172
F.3d 31, 35 (1st Cir.1999) (per curiam)). Substantial evidence exists “‘if a reasonable mind,
reviewing the evidence in the record as a whole, could accept it as adequate to support [the]
conclusion.’” Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.
1991) (quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir.
1981)). In applying the substantial evidence standard, the court must be mindful that it is the

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province of the ALJ, and not the courts, to determine issues of credibility, resolve conflicts in the
evidence, and draw conclusions from such evidence. Id. So long as the substantial evidence
standard is met, the ALJ’s factual findings are conclusive even if the record “arguably could
support a different conclusion.” Id. at 770. That said, the Commissioner may not ignore
evidence, misapply the law, or judge matters entrusted to experts. Nguyen, 172 F.3d at 35.
B. Standard for Entitlement to Supplemental Social Security Income
In order to qualify for SSI, a claimant must demonstrate that he or she is disabled within
the meaning of the Social Security Act. A claimant is disabled for purposes of SSI if he “is
unable 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 twelve months.” 42 U.S.C. §
1382c (a)(3)(A). A claimant is unable to engage in any substantial gainful activity when he “is
not only unable to do his previous work, but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be hired if he applied for
work.” 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner evaluates a claimant’s impairment under a five-step sequential
evaluation process set forth in the regulations promulgated under the statute. See 20 C.F.R. §
416.920. The hearing officer must determine: (1) whether the claimant is engaged in substantial
gainful activity; (2) whether the claimant suffers from a severe impairment; (3) whether the
impairment meets or equals a listed impairment contained in Appendix 1 to the regulations; (4)
whether the impairment prevents the claimant from performing previous relevant work; and (5)

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whether the impairment prevents the claimant from doing any work considering the claimant’s
age, education, and work experience. See 20 C.F.R. § 416.920(a)(4). See also Goodermote v.
Sec’y of Health & Human Servs, 690 F.2d 5, 6-7 (1st Cir. 1982) (describing the five-step
process). If the hearing officer determines at any step of the evaluation that the claimant is or is
not disabled, the analysis does not continue to the next step. See 20 C.F.R. § 416.920(a)(4).
Before proceeding to steps four and five, the Commissioner must make an assessment of
the claimant’s “residual functional capacity” (“RFC”), which the Commissioner uses at step four
to determine whether the claimant can do past relevant work and at step five to determine if the
claimant can adjust to other work. See 20 C.F.R. § 416.920(e). “RFC is an administrative
assessment of the extent to which an individual's medically determinable impairment(s),
including any related symptoms, such as pain, may cause physical or mental limitations or
restrictions that may affect his or her capacity to do work-related physical and mental activities.”
Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2 (July 2, 1996). “Work-related
mental activities generally … include the abilities to: understand, carry out, and remember
instructions; use judgment in making work-related decisions; respond appropriately to
supervision, co-workers and work situations; and deal with changes in a routine work setting.”
Id. at *6.
The claimant has the burden of proof through step four of the analysis. At step five, the
Commissioner has the burden of showing the existence of other jobs in the national economy
that the claimant can nonetheless perform. Goodermote, 690 F.2d at 7.
C. The ALJ’s Decision
To determine whether Plaintiff was disabled, the ALJ conducted the five-step analysis
required by regulations. At the first step, the ALJ found that Plaintiff had not been engaged in

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substantial gainful activity since November 9, 2010, the application date (A.R. at 23). At the
second step, the ALJ found that Plaintiff had a severe impairment, bipolar disorder, and certain
non-severe impairments, those being alcohol and substance abuse (id.). At step three, the ALJ
found that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in Appendix 1 (id. at 24). The
ALJ found that Plaintiff did not meet the criteria because Plaintiff had only mild restrictions of
daily living, moderate difficulties in social interactions, moderate difficulties with regards to
concentration, persistence, or pace, and had no periods of decompensation which lasted for an
extended duration (id. at 24). See 10 C.F.R. § Pt. 404, Subpt. P, App. 1.
Before proceeding to step 4, the ALJ found that Plaintiff had the RFC to perform simple
and unskilled tasks that required no more than frequent grasping, pinching or twisting with his
dominant left hand, with no more than incidental public contact, and no more than occasional coworker contact (A.R. at 25). At step four, the ALJ found that the claimant was unable to perform
any past relevant work (id.at 27). Finally, at step five, relying on the testimony of the VE, the
ALJ determined that Plaintiff could perform jobs found in significant numbers in the national
economy taking into account Plaintiff’s age, education, work experience, and RFC, and,
therefore, Plaintiff was not disabled (id. at 27-28).
D. Analysis
Plaintiff advances three arguments challenging the ALJ’s decision. First, Plaintiff argues
that the RFC determination is not supported by substantial evidence. Second, Plaintiff claims the
ALJ erred when he failed to properly analyze Plaintiff’s credibility. Third, Plaintiff claims that,
as a result of these failures, the ALJ’s step five finding is not supported by substantial evidence.
i. The ALJ’s RFC is Supported by Substantial Evidence

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In arguing that the RFC determination was not supported by substantial evidence,
Plaintiff faults the ALJ for failing to assign any weight to Dr. Robert Sampson’s “Consultative
Examination Report” and failing to explain why this assessment was not reflected in the RFC.6
First, because Dr. Sampson was not a treating source, his opinion was not entitled to
controlling weight.7 He saw Plaintiff on one occasion for purposes of an evaluation at the
request of the Massachusetts Disability Determination Services (id. at 250). Second, Plaintiff
substantially overstates the extent of the limitations as to which Dr. Sampson offered an opinion
based on this single encounter. Dr. Sampson opined that Plaintiff would have moderate to
severe limitations in his interactions with supervisors and coworkers as well as moderate to
severe impairments in his response to routine work pressures in a competitive work environment
(id. at 254). There is a notable difference between “moderate to severe” and “severe.” That Dr.
Sampson did not conclude that Plaintiff fell on the severe end of the scale is confirmed by his
assignment of a GAF of 50-55 (id. at 255).
The ALJ also was entitled to consider that, to the extent Dr. Sampson’s evaluation
supported “severe” restrictions on Plaintiff’s part, that evaluation was inconsistent with Dr.
Sampson’s record indicating that Plaintiff carried on a relationship with a significant other,
enjoyed siting on the porch, did yardwork, and was able to do his own laundry (id. a 252-253),
and with the notes of Ms. Kasulinous, who treated plaintiff over an extended period of time, and
6

Plaintiff relies, in part, on 20 C.F.R. § 416.927(e)(2)(ii), which states that unless a treating
source’s opinion is given controlling weight, the ALJ must explain in his decision what weight
he gives to medical opinions from State agency consultants and program physicians, as well as
the opinions of all treating, examining, or non-examining sources.
7

An acceptable medical source who evaluates a patient on one occasion fails to qualify as a
“treating source.” Mims v. Colvin, No. 14–30078–MGM, 2015 WL 3874890 at *3 (D. Mass.
June 23, 2015); see 20 C.F.R. § 416.902 (defining “treating source”); see also 20 C.F.R. §
416.913 (defining “acceptable medical sources”).
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whose records do not support a finding of severe restrictions or an inability to work (A.R. at 27).8
The ALJ’s opinion explicitly resolved the conflict between Dr. Sampson’s opinion and other
portions of the record against Dr. Sampson (id. at 27). On Plaintiff’s first visit to Ms.
Kasulinous, he reported that he “[did] odd jobs” (id. at 203), and he generally presented as
psychologically within normal limits. See supra note 2. It was up to the ALJ to resolve such
conflicts in the evidence. See Irlanda Ortiz, 955 F.2d at 769.
The ALJ’s question to the VE provided that Plaintiff would be limited to no more than
occasional contact with co-workers. The ALJ was not required to include in his hypothetical
question to the V.E. Dr. Sampson’s view that Plaintiff would be restricted to some degree in
interacting with supervisors. “Plaintiff’s limitations pertain to [his] ability to interact socially
and control [his] anger, so the distinctions between supervisors and the public and coworkers is
minor.” Brown v. Colvin, No. 13-cv-370-bbc, 2014 WL 2050269, at *1 (W.D. Wis. May 16,
2014). The ALJ also could consider that both state agency psychologists noted in their
assessments that Plaintiff was only “moderately limited” in his “ability to accept instruction and
respond appropriately to criticism from supervisors” (id. at 77, 90). In their conclusions, both
indicated that Plaintiff was capable of “limited social interactions” (id. at 80, 93). There was
substantial evidence to support the ALJ’s determination. He was not required to assign
8

The ALJ also discounted certain opinions in Ms. Kasulinous’s records that did not appear
consistent with her notes (A.R. at 27). In a December 2012 Mental Capacity Exam, Ms.
Kasulinous indicated that Plaintiff had severe impairments, but her notes, particularly her
assessment on August 31, 2011, did not support this conclusion (id.). Additionally, the Mental
Capacity Examination was in checkbox form. Such assessments may be discounted since they
fail to provide an explanation as to how the opinion was formed. See Greene v. Astrue, No.
CIV.A. 11-30084-KPN, 2012 WL 1248977, at *3 (D. Mass. Apr. 12, 2012); DiBenedetto v.
Barnhart, 2004 WL 1385845, at *8 (D.Mass. June 16, 2004) (concluding that social security
regulations “direct that medical opinions unsupported by relevant evidence or explanations not
be given substantial weight.”) (citing 20 C.F.R. § 404.1527); Cox v. Astrue, 2010 WL 3120593,
at *7 (W.D.Wash. July 9, 2010) (“A treating physician's opinion may be discounted if it contains
checkbox assessments without sufficient narrative to explain the basis for the opinion.”).
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controlling weight to Dr. Sampson’s opinions, and his opinion appropriately reflects that he
found the observations of Ms. Kasulinous more persuasive. See Mims, 2015 WL 3874890 at *3.
ii. The ALJ’s Credibility Assessment is Supported by Sufficient Evidence
Plaintiff’s contention that the ALJ erred in assessing his credibility is based on the ALJ’s
reliance on records from 2008 and an allegedly incomplete analysis. The ALJ properly reviewed
all available evidence to analyze the intensity and persistence of Plaintiff’s symptoms and
determine the extent to which those symptoms limited his capacity for work. See 20 C.F.R. §
416.929(c)(1). The 2008 treatment at The Chicopee Medical Center was part of Plaintiff’s
medical history and as such was part of the evidence properly reviewed by the ALJ to assess
symptoms and credibility (A.R. at 26).
The ALJ’s assessment of the intensity and persistence of symptoms required the ALJ to
make a finding about the credibility of Plaintiff’s statements about the symptoms and their
functional effects. See SSR 96-7p, 1996 WL 374186, at *1 (July 2, 1996). The ALJ did so by
considering the content of Ms. Kasulinous’s notes and Dr. Sampson’s evaluation, which did not
support the extent of the limitations to which Plaintiff testified at the hearing. Plaintiff testified
that he did not go anywhere other than the doctor’s office (A.R. at 55); that he had trouble
sleeping (id. at 61); that he had issues with anxiety a couple times a day (id.); and that his “good
days” were days he stayed away from people (id. at 64). Records from Ms. Kasulinous and Dr.
Sampson indicated that Plaintiff carried on a relationship with a significant other, enjoyed sitting
on the porch, did yardwork, and took care of his daily needs (id. at 252 – 253). Ms. Kasulinous’s
records reflected that Plaintiff’s mood, cognition, general appearance, verbal skills, and behavior
were all within normal limits on almost all occasions. See supra note 2. Plaintiff also told Ms.

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Kasulinous that he “[did] odd jobs” (id. at 202) and on many occasions discussed his relationship
with his significant other (id. at 233, 246, 250, 252-54, 282, 286, 291).
The contrast between Plaintiff’s testimony and the records adequately supports the ALJ’s
credibility analysis and his assertion that “[c]laimaint’s range of daily, social, and household
tasks is . . . inconsistent with claimant[’]s alleged subjective limitations” (id. 27). See Irlanda
Ortiz, 955 F.2d at 769 (“It is the responsibility of the [ALJ] to determine issues of credibility and
to draw inferences from the record evidence.”) (citing Rodriguez, 647 F.2d at 222); see also
Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987) (citing DaRosa
v. Sec’y of Health and Human Servs., 803 F.2d 24, 26 (1st Cir.1986)).
Further, while the ALJ’s decision did not discuss the type, dosage, effectiveness, and side
effects of any medication taken to alleviate symptoms, this aspect of the record does not
undermine the ALJ’s credibility analysis. The ALJ noted and was aware that Plaintiff was
prescribed several medications for his condition (id. at 26). Ms. Kasulinous was responsible for
prescribing those medications, and her records indicate that Plaintiff was stable on the
medications and made improvements over the course of treatment.
iii. Sufficient Evidence Supports the Step Five Decision
Relying on his complaints about the ALJ’s treatment of Dr. Sampson’s opinion and the
credibility assessment, Plaintiff argues that the hypothetical posed to the VE was flawed, and, as
a result, the ALJ’s step five conclusion was not supported by substantial evidence. A
hypothetical question to a VE is appropriate if it accurately reflects medical findings in the
record. Patterson v. Colvin, No. CIV.A. 13-13198-WGY, 2015 WL 1376298, at *13 (D. Mass.
Mar. 26, 2015) (citing Arocho, 670 F.2d at 375). See Pollock v. Astrue, 670 F. Supp. 2d 484,
515 (N.D.W. Va. 2009) (ALJ need only pose those hypothetical questions that are based on

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substantial evidence and accurately reflect the claimant's limitations) (citing Copeland v. Bowen,
861 F.2d 536, 540–41 (9th Cir. 1988)). Because, for the reasons set forth above, the hypothetical
question accurately reflected Plaintiff’s limitations, it follows that the ALJ’s step five analysis
was fully supported by the record.
II.

Conclusion

For the reasons stated above, Plaintiff’s motion for summary judgement (Dkt. No. 15) IS
DENIED, and the Commissioner’s motion for an order affirming the decision (Dkt. No. 19) IS
GRANTED.
It is so ordered.
/s/ Katherine A. Robertson____
KATHERINE A. ROBERTSON
United States Magistrate Judge

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