Resto v. Colvin

Filing 18

Judge Mark G. Mastroianni: MEMORANDUM AND ORDER entered denying 13 Plaintiff's Motion for Judgment on the Pleadings; granting 15 Defendant's Motion for Order Affirming Decision of Commissioner. The clerk shall enter judgment for Defendant, and this case may now be closed. (See attached Memorandum and Order) (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GLADYS RESTO,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Civil Action No. 15-30012-MGM

MEMORANDUM AND ORDER REGARDING PLAINTIFF’S
MOTION FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT’S
MOTION FOR ORDER AFFIRMING COMMISSIONER
(Dkt. Nos. 13 and 15)
April 7, 2016
MASTROIANNI, U.S.D.J.
I.

INTRODUCTION

This is an action for judicial review of a final decision by Carolyn Colvin, the acting
Commissioner of the Social Security Administration (“Commissioner”), regarding an individual’s
entitlement to Supplemental Security Income (“SSI”) pursuant to 42 U.S.C. § 1383(c)(3) (referring to
42 U.S.C. § 405(g)). Gladys Resto (“Plaintiff”) asserts the Commissioner’s decision denying her such
SSI—memorialized in a November 22, 2013 decision of an administrative law judge (“ALJ”)—is in
error. The parties have filed cross-motions for judgment on the pleadings.
At issue is whether the ALJ erred by failing to adopt the findings of several mental health
medical sources when assessing Plaintiff’s residual functional capacity (“RFC”). In response, the
Commissioner contends that substantial evidence in the record supports the ALJ’s findings. For the
reasons set forth below, the court allows the Commissioner’s motion and denies Plaintiff’s motion.

The parties are familiar with the facts and lengthy procedural history 1 of this case, so the court
begins its discussion with the standard of review.
II.

STANDARD OF REVIEW

The role of a district court reviewing an administrative law judge’s decision is limited to
determining whether the conclusion was supported by substantial evidence and based on the correct
legal standard. See 42 U.S.C. §§ 405(g) and 1983(c)(3); Manso-Pizarro v. Sec’y of Health & Human Servs.,
76 F.3d 15, 16 (1st Cir. 1996). The Supreme Court has defined substantial evidence as “more than a
mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). Even if the administrative record could support multiple conclusions, a
court must uphold the Commissioner’s findings “if a reasonable mind, reviewing the evidence in the
record as a whole, could accept it as adequate to support his 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)). Additionally, it is the Commissioner’s responsibility
to weigh conflicting evidence and decide issues of credibility. Rodriguez, 647 F.2d at 222.
III.

DISABILITY STANDARD AND THE ALJ’S DECISION

Entitlement to SSI requires a showing of both disability and financial need on or after the
date of the SSI application. See 42 U.S.C. § 1381a. Plaintiff’s financial need is not challenged.
Therefore, whether Plaintiff has a disability within the meaning of Section 1614(a)(3)(A) of the

On August 14, 2009, Plaintiff’s initial request for SSI was denied. (Administrative Record (“A.R.”) at 51-53.)
Thereafter, on January 13, 2010, Plaintiff’s request for reconsideration was also denied. (Id. at 57-59.) After a
hearing on May 3, 2011 before the ALJ, Plaintiff was found not disabled. (Id. at 39-46.) Plaintiff then filed a
subsequent SSI application on July 6, 2011 that was also denied initially and on reconsideration. (Id. at 751,
767.) On September 16, 2011, the Appeals Council denied review of the ALJ’s first determination. (Id. at 1-3.)
On June 18, 2012, this court reversed the decision and remanded. (Id. at 724-30.) The Appeals Council
consolidated both of Plaintiff’s SSI claims and directed the ALJ to take testimony and issue a new decision.
(Id. at 730.) Thereafter, a second hearing before the ALJ took place on August 1, 2013. (Id. at 677-93.) That
decision was again appealed, and the Appeals Council declined review on November 25, 2014. (Id. at 666-69.)
The instant action followed.
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Social Security Act, 42 U.S.C. § 1382c(a)(3)(A) (the “Act”) to qualify for SSI is the only issue at
hand.
The Act defines disability, in part, as the 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). An individual is considered disabled under
the Act:
only if his physical or mental impairment or impairments are of such severity that 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). See generally Bowen v. Yuckert, 482 U.S. 137, 146-49 (1987).
In determining disability, the Commissioner follows the five-step protocol described by the
First Circuit as follows:
1) If the applicant is engaged in substantial gainful work activity, the application is
denied; 2) if the applicant 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” is such that he or she can still perform past relevant work, then
the application is denied; 5) if the applicant, given his or her residual functional
capacity, 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); see also 20 C.F.R. § 416.920(a)(4).
In the instant case, the ALJ found as follows with respect to these steps. First, Plaintiff has
not engaged in substantial gainful activity since April 27, 2009. (Administrative Record (“A.R.”) at
41, 685.) Second, the ALJ found Plaintiff to have severe impairments that included chronic back

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pain and major depression. 2 (Id.) Third, the ALJ determined Plaintiff’s impairments did not, singly or
in combination, meet or medically equal the severity of one of the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (Id. at 41, 686.) Fourth, the ALJ found Plaintiff had the RFC to
perform light work, as defined in 20 C.F.R. § 416.967(b), but with the following limitations:
She is limited to unskilled work which allows for only occasional contact with coworkers and the general public. She can only occasionally climb ramps and stairs, or
balance, kneel, crouch, crawl and stop. She cannot perform work involving more than
incidental exposure to extremes of temperature, vibration, respiratory irritants or
humidity. She requires a “sit-stand option” and cannot use right foot or leg controls.
She cannot lift or reach overhead. Lastly, she cannot work around heights or climb
ladders, ropes and scaffolding.
(Id. at 42, 687.) In connection with this RFC determination, the ALJ found Plaintiff had no past
relevant work to be considered under 20 C.F.R. § 416.965; therefore, transferability of job skills
under 20 C.F.R. § 416.968 was not an issue. (Id. at 44, 691.) At the fifth and final step, the ALJ
determined that Plaintiff could engage in other work, including occupations such as an assembler,
inspector, or packer, which are jobs that exist in significant numbers in the national economy. (Id. at
692.) As a result, the ALJ determined Plaintiff was not disabled. (Id. at 692-93.)
IV.

DISCUSSION

Plaintiff argues the ALJ failed to adequately consider the opinions from several mental
health medical sources when assessing her RFC. 3 The Commissioner contends that substantial
evidence in the record supports the ALJ’s findings. Viewing the record as a whole, the court agrees
with the Commissioner.
An administrative law judge must give “controlling weight” to the medical opinion of a
“treating source” if it is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence” in the record. 20 C.F.R. §

The ALJ found Plaintiff’s mild asthma, hypertension, and complaints of fatigue, knee pain, and left shoulder
pain did not significantly impact her functioning. (A.R. at 685-86.)
3 Plaintiff does not contend the ALJ failed to consider evidence regarding any physical impairments.
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416.927(c)(2). When an administrative law judge does not accord a treating source’s medical opinion
controlling weight, he or she must consider the length, frequency, nature, and extent of the
treatment relationship, the opinion’s supportability and consistency with the record as a whole, and
any other relevant factors to determine the weight the opinion deserves. 20 C.F.R. § 416.927(c)(2)(6). The administrative law judge must also give “good reasons” for the weight ultimately given to
such an opinion. Id.
On the other hand, opinions from “other medical sources” are not entitled to controlling
weight and an administrative law judge is not required to provide “good reasons” for the weight
assigned to such opinions nor consult the factors in 20 C.F.R. § 416.927(c)(2)-(6). Taylor v. Astrue,
899 F. Supp. 2d 83, 88 (D. Mass. 2012). An administrative law judge still must adequately explain the
treatment of an opinion by “other medical sources” so that a reviewer can determine if the decision
is supported by substantial evidence. Id. at 88-89. Further, an administrative law judge cannot ignore
entirely the opinion of a non-acceptable medical source. Doucette v. Astrue, 972 F. Supp. 2d 154, 168
(D. Mass. 2013).
Plaintiff argues the ALJ failed to adequately consider the treating source opinion of Gina
Hughes, R.N.M.S. Ms. Hughes’s position as a nurse is not among the “acceptable medical sources”
listed in 20 C.F.R. § 416.913(a). See Taylor, 899 F. Supp. 2d at 88. Rather, nurses are “other medical
sources” that an administrative law judge has discretion to assign weight to as appropriate. Id.
Ms. Hughes completed two psychiatric disorder questionnaires of Plaintiff on May 18, 2009
and November 11, 2009. (A.R. at 251-53, 285-87.) Both reports are nearly identical and note
Plaintiff’s major depressive disorder symptoms with a Global Assessment Functioning (“GAF”)
score of 50. 4 (Id.) The ALJ found these reports to be:

A GAF score is a number between 1 and 100 that measures “the clinician’s judgment of the individual’s
overall level of functioning.” Diagnostic and Statistical Manual of Mental Disorders, Fourth Ed., Text

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inconsistent with the longitudinal mental health history (showing intermittent therapy,
effectiveness of treatment when compliant, no psychiatric hospitalizations) and the
claimant’s reported activities, including caring for her special needs child, managing
her household and traveling in 2011 to Puerto Rico. She has had no reported difficulty
engaging well with others.
(Id. at 690.) The ALJ also noted that these findings were inconsistent with those found later by
Plaintiff’s therapist, Cheryl Friss, M.Ed. (Id.)
Substantial evidence in the record supports the ALJ’s treatment of Ms. Hughes’s opinion.
The questionnaires filled out by Ms. Hughes are some of the earliest medical evidence in the record.
In comparison to the more recent evidence, they directly conflict with later medical reports from
2011 through 2013 that show improvement in Plaintiff’s mental conditions following treatment.
Further, the court finds that, under Taylor, the ALJ adequately explained the treatment of Ms.
Hughes’s opinion. The ALJ outlined Ms. Hughes’s findings in the decision. (Id. at 688.) Then, the
ALJ refuted these findings with adequate explanation; most notably, that they were inconsistent with
Plaintiff’s longitudinal mental health history and her reported daily activities. (Id. at 690.)
Plaintiff further argues the ALJ failed to adequately consider the treating source opinion of
Ms. Friss; specifically, her opinion that Plaintiff’s prognosis was “poor” and that “[d]ue to both
medical and psychological issues, [Plaintiff] probably could not keep employment.” (Id. at 1083.) Ms.
Friss is a therapist and therefore her opinion is also that of an “other medical source.” See 20 C.F.R.
§ 416.913(d); Rivera v. Colvin, No. 15-cv-30002-KAR, 2016 WL 778360, at *14 (D. Mass. Feb. 26,
2016) (therapist is not an “acceptable medical source” and an administrative law judge is granted
wide discretion in weighting a therapist’s opinion). “When deciding how much weight to give a
therapist’s opinion, an [administrative law judge] is only constrained by the duty to reach a
conclusion supported by substantial evidence in the record.” Nadeau v. Colvin, No. 14-cv-10160-FDS,

Revision, 32 (2000). A score between 51 and 60 denotes “moderate” symptoms or limitations. Id. at 34. A
score between 41 and 50 denotes “serious” symptoms or limitations. Id.
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2015 WL 1308916, at *8 (D. Mass. Mar. 24, 2015) (quoting Gagnon v. Astrue, No. 11-cv-10481-PBS,
2012 WL 1065837, at *5 (D. Mass. Mar. 27, 2012)).
Ms. Friss met with Plaintiff on many occasions from 2009 through 2013. 5 Initially, on April
21, 2009, Ms. Friss diagnosed Plaintiff with major depressive disorder and a GAF score of 50. (A.R.
at 238.) Thereafter, Plaintiff’s GAF score climbed to 55 in 2009, 56 in 2012, and 57 in 2013. (Id. at
284, 1157, 1145.) According to the most recent evidence in the record, Ms. Friss noted that
Plaintiff’s depression, anxiety, and daily stressors were decreasing while her coping skills were
increasing. (Id. at 1145, 1150.)
The ALJ explained extensively why Ms. Friss’s opinion was afforded little weight. (Id. at
690.) In particular, the ALJ stated that her opinion “is out of proportion with the claimant’s
longitudinal history, her daily activities, her ability to maintain a long-term, supportive relationship
with her boyfriend, and her assessed GAF of 55.” (Id.) The ALJ also found that the treatment notes
did not support Ms. Friss’s opinion that the Plaintiff had “recurrent suicidal ideation, inability to
remember and concentrate, inability to focus and complete tasks, and ‘possible cognitive deficits.’”
(Id.). Rather, the ALJ pointed out:
The claimant reported she went to school through the 11th grade. She has been
capable of caring for herself and her children. The claimant has stressors related to the
care of her special needs child, and she has not worked for many years because she
has been caring for her son. She repeatedly has applied for social security benefits
while receiving minimal to moderate care for her allegedly disabling physical and
mental impairments. Ms. Friss’ opinion that the claimant “probably could not keep
employment” is not persuasive evidence of incapacitating depression. Moreover, no
other treating or examining physician has suggested that the claimant has any physical
or mental impairment that prevents her from working.
(Id.) The court finds substantial evidence in the record to support the ALJ’s conclusion regarding
Ms. Friss’s opinion. The explanation by the ALJ for granting Ms. Friss’s opinion little weight, as

On January 18, 2010, Plaintiff was discharged for missing an appointment and failing to return calls to
reschedule. (A.R. at 363.) Plaintiff began treatment again with Ms. Friss on March 16, 2011. (Id. at 420.)

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outlined above, is satisfactory under Taylor. See Lopez v. Colvin, No. 14-cv-30173-MGM, 2016 WL
659682, at *6 (D. Mass. Feb. 18, 2016) (finding the administrative law judge adequately explained
why he granted little weight to a therapist’s opinion because she was not an “acceptable medical
source” and her findings were inconsistent with those of other acceptable sources).
Lastly, Plaintiff argues that Alan Stone, Ph.D. is an “acceptable medical source” and the ALJ
erred by not adequately considering his opinion. Indeed, Dr. Stone is an acceptable medical source.
The ALJ would have had to consider his opinion, but Dr. Stone did not give any opinion about
Plaintiff throughout the record. Dr. Stone’s involvement is limited to signing off on reports
completed by Ms. Hughes and Ms. Friss, and there is no evidence he conducted an examination of
or otherwise treated Plaintiff. These sign-offs do not morph Ms. Hughes or Ms. Friss into
acceptable medical sources; neither do they change such reports into treating source opinions by Dr.
Stone. See Allen v. Colvin, No. 13-cv-781-L, 2015 WL 906000, at *11 (D.R.I. Mar. 3, 2015) (“It is wellsettled that neither the physician’s sign-off on each encounter that the patient had with the
physician’s assistant nor the physician’s sign-off on the physician assistant’s opinion morphs the
assistant into an acceptable medical source.”); Lobov v. Colvin, No. 12-cv-40168-TSH, 2014 WL
3386567, at *14 n.8 (D. Mass. June 23, 2014) (co-signature of acceptable medical source on the
opinion from other source had no bearing on the administrative law judge’s discretion to assign
weight to the other source opinion); Coppola v. Colvin, No. 12-cv-492-JL, 2014 WL 677138, at *9
(D.N.H. Feb. 21, 2014) (signature of acceptable medical source on opinion completed by nonacceptable medical source did not establish it as a treating source opinion when evident the
acceptable medical source had no ongoing treatment relationship). Further, even if these co-signed
evaluations had in fact been treating source opinions, substantial evidence supports the ALJ’s
decision to give them little weight due to being out of proportion with Plaintiff’s longitudinal history
and daily activities.
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The court notes Plaintiff’s medical records were reviewed by two different Disability
Determination Services evaluators on separate occasions. (A.R. at 743-49, 759-65.) Plaintiff’s records
were reviewed by Celeste N. Derecho, Ph.D. on October 18, 2011. (Id. at 743.) Dr. Derecho
completed a mental RFC assessment that noted some symptoms, but found none to be severe. (Id.
at 746-48.) Likewise, on January 12, 2012, Jon Perlman, Ed.D. conducted a similar assessment of
Plaintiff’s records. (Id. at 759.) Dr. Perlman found no severe limitations. (Id. at 759-65.) These
opinions add to the substantial evidence supporting the ALJ’s disability determination.
This court must uphold the ALJ’s determination if it was supported by substantial evidence,
even if the available evidence could have supported other determinations, and even if a different
administrative law judge may have reached a different conclusion when reviewing the record. See
Bird v. Colvin, No. 14-cv-30108-MGM, 2015 WL 5315196, at *7 (D. Mass. Sept. 11, 2015).
Substantial evidence supports the conclusion reached by the ALJ in this case.
V.

CONCLUSION

For these reasons, the court DENIES Plaintiff’s Motion for Judgment on the Pleadings
(Dkt. No. 13) and ALLOWS Defendant’s Motion for Order Affirming Decision of the
Commissioner (Dkt. No. 15). The clerk shall enter judgment for Defendant, and this case may now
be closed.
It is So Ordered.

_/s/ Mark G. Mastroianni________
MARK G. MASTROIANNI
United States District Judge

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