McDonnell v. Colvin

Filing 17

Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER Regarding Plaintiff's 11 MOTION for Judgment on the Pleadings and Defendant's 15 MOTION to Affirm the Decision of the Commissioner. For the reasons stated, P laintiff's motion for judgment on the pleadings (Dkt. No. 11 ) is GRANTED IN PART, and the Commissioner's motion for an order affirming the decision (Dkt. No. 15 ) is DENIED. See attached memorandum and order for complete details.(Calderon, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RAYMOND CHARLES MCDONNELL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security Administration,
Defendant.

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Case No. 3:15-cv-30080-KAR

MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR JUDGMENT
ON THE PLEADINGS AND DEFENDANT’S MOTION TO AFFIRM THE DECISION OF
THE COMMISSIONER
(Dkt. Nos. 11 & 15)
June 28, 2016
ROBERTSON, U.S.M.J.
I.

Introduction

This is a request by Plaintiff Raymond Charles McDonnell (“Plaintiff”) for judicial
review of a final decision by the acting Commissioner of the Social Security Administration
(“Commissioner”) regarding Plaintiff’s entitlement to Social Security Disability Insurance
(“SSDI”) benefits pursuant to 42 U.S.C. § 405(g). Plaintiff challenges the Commissioner’s
decision denying him such benefits, which is memorialized in a November 26, 2013 decision by
an administrative law judge (“ALJ”), on the asserted ground that the ALJ erred in concluding
that Plaintiff’s mental impairments of depression and anxiety were not severe.1 Plaintiff has
moved for judgment on the pleadings requesting that the Commissioner’s decision be reversed,

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Because neither party disputes the ALJ’s evaluation of Plaintiff’s physical impairments, the
court will limit its discussion and analysis to Plaintiff’s mental impairments. 

or, in the alternative, remanded for further proceedings (Dkt. No. 11). The Commissioner has
moved for an order affirming the decision of the Commissioner (Dkt. No. 15).
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 allows Plaintiff’s motion in part and directs a
remand to the Commissioner for additional evaluation of the evidence in light of this decision
and, if necessary, additional development of the evidence. The court denies the Commissioner’s
motion.
II.

Procedural Background

On April 13, 2009, Plaintiff applied for SSDI, alleging a March 14, 2006 onset of
disability (Administrative Record (“A.R.”) at 13, 185-186, 258). The application was denied
initially and on reconsideration (id. at 73-75, 80-82). Plaintiff requested a hearing before an
ALJ, and one was held on May 3, 2011 (id. at 37-70, 83-84). Following the hearing, the ALJ
issued a decision on June 6, 2011, finding that Plaintiff was not disabled and denying Plaintiff’s
claim (id. at 10-24). On September 8, 2011, the Appeals Council denied review and affirmed the
ALJ’s decision (id. at 1-5). Plaintiff then sought judicial review, and, on July 23, 2012, based on
the parties’ agreement, another session of this court issued an order reversing the ALJ’s decision,
remanding the case for further administrative proceedings, and entering judgment for Plaintiff
(id. at 755-759). Following a new hearing in front of the same ALJ on August 13, 2012, the ALJ
issued a new decision on November 26, 2013, again finding that Plaintiff was not disabled and
denying Plaintiff’s claim (id. at 676-694). The Appeals Council denied review on March 4, 2015
(id. at 667-670). Thus, the ALJ’s decision became the final decision of the Commissioner. This
appeal followed.

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III.

Legal Standards
A. Standard for Entitlement to Social Security Disability Insurance

In order to qualify for SSDI, a claimant must demonstrate that he was disabled within the
meaning of the Social Security Act prior to the expiration of his insured status for disability
insurance benefits. See 42 U.S.C. § 423(a)(1). A claimant is disabled for purposes of SSDI 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 12 months.” 42 U.S.C. §
423(d)(1)(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. § 423(d)(2)(A).
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. §
404.1520. 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) whether the impairment prevents the claimant from doing any work considering
the claimant’s age, education, and work experience. See id. 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

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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. § 404.1520.
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 id. “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”) 968p, 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 workrelated 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.
B. 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. See 42 U.S.C. § 405(g).
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

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F.3d 31, 35 (1st Cir.1999)). 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 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.
IV.

Discussion
A. The Evidence
1. Plaintiff’s Application

On March 14, 2006, Plaintiff’s alleged onset date, Plaintiff was working as a laborer in a
food service warehouse when he was struck from above by a falling pallet of frozen beef. He
lost consciousness and sustained fractures to both bones of his lower right leg and to his lower
back (id. at 307). It was as a result of the physical impairments stemming from these injuries to
Plaintiff’s leg and back that Plaintiff initially applied for SSDI. According to Plaintiff, his
injuries prevented him from working because they rendered him unable to bend, lift, stoop, or
crawl (id. at 13, 185-186, 258-265). At the time he applied for SSDI benefits, Plaintiff did not
claim to have any mental impairments that impeded his ability to work (id. at 258, 261).

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2. Medical Records
Records from Baystate Medical Center, where Plaintiff was treated immediately after the
March 14, 2006 accident, note that Plaintiff had a history of anxiety disorder (id. at 351), and
that family members reported Plaintiff as having “fairly significant problems with anxiety” (id. at
348). One of Plaintiff’s surgeons described Plaintiff the day after the accident as being “quite
anxious, but … appropriate,” insofar as he was in no acute distress, was alert and oriented, and
presented with an appropriate mood and affect (id. 349). Records from Weldon Center for
Rehabilitation at Mercy Medical Center, where Plaintiff was transferred following his initial
medical treatment at Baystate, reflect that Plaintiff underwent a psychiatric consultation on
March 24, 2006 (id. at 507-509). The psychiatrist who provided the consult noted that Plaintiff
presented with a history of anxiety disorder and diagnosed him with “anxiety disorder by
history” and “rule out paranoid personality disorder,” but the physician was unable to fully
evaluate Plaintiff based on Plaintiff’s unwillingness to engage for more than five minutes (id.).
Plaintiff did not seek any mental health treatment until March 11, 2011, five years after
the accident and nearly two years after he applied for SSDI benefits. At the time, Plaintiff went
to Mt. Tom Mental Health Center (“MTMHC”) for an intake assessment, having been urged by
the “people around him … to get some help” with his feelings of anxiety and depression around
his future ability to support himself (id. at 658-666). The clinician who conducted the one-hour
assessment indicated that Plaintiff exhibited symptoms of depressed mood, decreased
concentration and memory, and anxiety, and assessed Plaintiff as suffering from a marked
impairment in the categories of concentration, sleep habits, and “hobbies/interests/play” (id.).
The clinician diagnosed Plaintiff with a mood disorder due to general medical condition with

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depressive features, assigned him a Global Assessment of Functioning Score of 51,2 and
recommended weekly psychotherapy sessions to reduce Plaintiff’s symptoms of depression and
anxiety and to increase his ability to focus and concentrate (id. at 666).
Records of Plaintiff’s weekly psychotherapy sessions are not part of the administrative
record, save for a single record from July 27, 2011, in which Plaintiff’s diagnosis and GAF score
remain unchanged, and the clinician notes that Plaintiff “continues to struggle with dealings [sic]
of anxiety and hopelessness” and that his ability to focus is “markedly limited because of his
worry about the future and his ability to sustain himself financially” (id. at 928-931).
Plaintiff also underwent a medication evaluation at MTMHC at about the same time, on
July 19, 2011, and his medication management records are part of the record (id. at 925-927).
The psychiatrist who conducted the one-hour evaluation observed that Plaintiff was wellgroomed and his thoughts were logical and coherent (id. at 926). While Plaintiff’s mood
appeared a “bit anxious and angry,” his judgement and impulse control appeared to be good, his
cognition was grossly intact, he was oriented in all spheres, and his concentration and memory
appeared to be within normal limits (id.). The psychiatrist diagnosed Plaintiff with major
depressive disorder, single episode, severe without psychotic features, and anxiety disorder not
otherwise specified, assigned him a GAF of 50, and prescribed Celexa, an anti-depressant, as
well as trazadone as a sleep aid (id. at 925-927). During five 20-minute medication management
sessions falling between the evaluation and April 17, 2012, Plaintiff consistently presented as
well-groomed and with good eye contact and coherent verbalizations (id. at 910-927). The

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GAF scores are expressed in terms of degree of severity of symptoms or functional impairment,
with scores of 41 to 50 representing “serious” severity, scores of 51 to 60 representing
“moderate” severity, and scores of 61 to 70 representing “mild” severity See American
Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, 32–34 (4th Ed. Text
Revision 2000).    
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psychiatrist gradually increased Plaintiff’s dose of Celexa and replaced his prescription for
trazadone with one for Ambien (id. at 909-924). By the time of Plaintiff’s final medication
management session on April 17, 2012, the psychiatrist described Plaintiff as displaying more
spontaneous verbalizations and having a brighter affect and indicated that his mental status
“appeared happier, less angry and depressed” (id. at 911).
3. Plaintiff’s Testimony
At the August 13, 2013 hearing, Plaintiff testified that he started to feel symptoms of
depression and anxiety “a little before” the March 14, 2006 accident, but increasingly after the
accident (id. at 726). He affirmed that it was at the urging of friends and relatives that he sought
treatment at MTMHC in March 2011 (id. at 726). While Plaintiff testified that he continued to
struggle with depression and anxiety as of the hearing, he also testified that, from January 2012
through April 2013, he stopped going to therapy and taking medication for his mental health
conditions (id. at 708-710, 712-714). Plaintiff attributed the cessation of mental health treatment
to the fact that he began taking prerequisites and courses in a clinical lab science program as part
of a vocational rehabilitation effort (id.). He testified that he was “achieving good marks” from
January 2012 until January 2013, at which time he began to experience anxiety attacks and
insomnia (id. at 708-709, 714). According to Plaintiff, as a result of a lack of sleep, he failed a
hematology final in May 2013 and was involuntarily withdrawn from the program, although he
had put in an appeal to be readmitted (id. at 709-710). Plaintiff resumed therapy with a different
therapist in April 2013, and his primary care physician was prescribing him mental health
medication until he could get an appointment with a psychiatrist (id. at 713, 727).
In terms of function, Plaintiff testified that he prepared some of his meals and did small
loads of laundry and small grocery trips himself, while his mother and sister provided him with

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some meals and helped him with larger loads of laundry and larger grocery trips (id. at 717, 728).
Plaintiff testified that he took care of his own hygienic needs, bathing and showering on his own,
and used the internet for school work (id. at 717-718). Plaintiff testified that he left home for
school, to visit relatives, and, occasionally, to go to the sauna at the Elks Club (id. at 717).
Plaintiff testified that his anxiety caused him problems with concentration and memory (728729).
4. Expert Testimony
Herbert Golub, Ph. D., DABPS, a psychologist assigned by the Commissioner to review
Plaintiff’s records, testified at the August 13, 2013 hearing (id. at 699-705). Based on Plaintiff’s
MTMHC treatment records, Dr. Golub opined that Plaintiff met the listing for 12.04 Affective
Disorders as of 2012, but, given the lack of earlier mental health treatment or records, he had no
way of assessing or forming an opinion as to the severity of Plaintiff’s mental impairments
before that time (id. at 702). On questioning by Plaintiff’s attorney in which she pointed out that
Plaintiff’s initial intake at MTMHC was in March 2011, the medical expert revised his
testimony, stating, “I’d be willing to … say [that he met the listing for 12.04 Affective Disorders
in] 2011 (id. at 704). When the ALJ inquired of Dr. Golub’s assessment of the Paragraph B
criteria, Dr. Golub testified that Plaintiff was moderately restricted in the activities of daily
living, had no difficulty maintaining social functioning, had moderate difficulty maintaining
concentration, persistence, or pace, and had no episodes of decompensation (id. at 702-703).
The ALJ appeared to recognize that under this assessment Plaintiff failed to meet the 12.04
listing (which would require at least two marked limitations or one marked limitation and
repeated episodes of decompensation, each of extended duration), but did not press Dr. Golub on
the apparent discrepancy in his testimony (id. at 704).

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B. The ALJ’s Decision
To determine whether Plaintiff was disabled, the ALJ conducted the five-part analysis
required by the regulations. At the first step, the ALJ found that Plaintiff had not engaged in
substantial gainful activity from his alleged onset date, March 14, 2006, through his date last
insured, December 31, 2010 (A.R. at 681).3 At steps two and three, the ALJ found that, through
the date last insured, Plaintiff had multiple severe physical impairments, but no severe mental
impairments, and concluded that his severe physical impairments, taken separately or in
combination, did not meet or medically equal the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (id. at 681-682). The ALJ’s findings and conclusions
with regard to Plaintiff’s mental impairments are contained in a single paragraph in his decision:
In terms of the claimant’s alleged mental impairments, the
claimant apparently did not seek counseling until after his date last
insured. Exhibit 24F. His doctors did not report significant
psychological symptoms during his many physical examinations
prior to December 31, 2010. Moreover, when he presented for
counseling in March 2011, the claimant was assessed a GAF of 61,
indicating mild symptoms/impairments. Exhibit 24F-4. Although
the record shows that claimant’s mental status appears to have
deteriorated since that time (Exhibit 28F), this occurred after the
specific period relevant to this decision. The undersigned finds
that the claimant’s current mental health condition is not reflective
of his mental status prior to the date last insured. Thus, it is found
that the claimant had no severe mental impairment.
(id. at 682). Before proceeding to step four, the ALJ found that, through the date last insured,
Plaintiff had the RFC to perform light work with the limitations of no more than occasional
climbing of ramps and stairs, balancing, kneeling, crouching, crawling, and stooping; no lifting

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“The date last insured is the last date on which an applicant is eligible to receive SSDI. To be
Title II Disability Insurance Benefit eligible, an applicant must have disability insured status as
of the onset date of a disability.” Pennell v. Colvin, 52 F. Supp. 3d 138, 141 n.1 (D. Mass. 2014)
(citing 20 C.F.R. § 404.131(a)). 
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or reaching overhead; no climbing ladders, ropes, or scaffolding or work around heights; no
more than incidental exposure to extremes of cold or vibration; and no use of left leg or foot
controls (id. at 682). At step four, the ALJ determined that Plaintiff was unable to perform any
past relevant work (id. at 686). Finally, at step five, relying on the testimony of an independent
vocational expert, the ALJ determined that, from the alleged onset date through the date last
insured, 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 687-688).
C. Analysis
The court concludes that the ALJ erred in several respects. First, the ALJ erred in failing
to rate Plaintiff’s degree of limitation resulting from his mental impairments in the broad areas of
functioning, including the activities of daily living, social functioning, maintaining
concentration, persistence, and pace, and episodes of decompensation, before making a
determination as to the severity of those impairments, and in failing to document his application
of the special technique in his decision, as required by 20 C.F.R. §404.1520a.4 Second, the ALJ
erred in failing to consider whether Plaintiff’s mental impairments limited his ability to carry out
work-related mental activities in determining Plaintiff’s RFC, an analysis an ALJ is required to
undertake even if he determines a mental impairment is non-severe. 20 C.F.R. § 404.1545.
Accordingly, remand of this case is appropriate for the ALJ to properly apply the law and

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Indeed, in the remand order from the Appeals Council following the first decision, the ALJ was
specifically instructed to “[a]rticulate how he has evaluated the severity of all medically
determinable mental impairments under the special technique mandated by 20 C.F.R. 404.1520a.
The Administrative Law Judge will explain how the evidence supports his assessments for the
broad areas of functioning that are the ‘paragraph B’ criteria. As appropriate, he will consider
the ‘paragraph C’ criteria” (A.R. at 763).
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regulations to assess the severity of Plaintiff’s medically determinable mental impairments
utilizing the special technique set forth in 20 C.F.R. §404.1520a. If he again finds Plaintiff’s
mental impairments to be non-severe, the ALJ must assess whether the impairments cause any
limitations on Plaintiff’s ability to carry out work-related mental activities in determining
Plaintiff’s RFC.
In remanding this matter, the court notes that the ALJ’s conclusion that Plaintiff’s
depression and anxiety were non-severe is based, in part, on a misreading of the factual record.
In particular, the ALJ found that when Plaintiff began counseling in March 2011, he was
assessed a GAF of 61, indicating only mild symptoms or impairment (id. at 682). However, as
noted above, Plaintiff’s assessed GAF was 51, a ten-point disparity, representing the difference
between mild and moderate symptoms or impairment (id. at 661, 663). The discrepancy is likely
attributable to a blurring of the faxed copy of the medical record, which makes the “51” appear
as if it might be a “61” on that particular page of the Administrative Record (id. at 661). No such
blurring exists on the following pages of the exhibit, however, and it is quite clear the clinician
assessed Plaintiff a GAF of 51 in March 2011 (id. at 663). Indeed, in the ALJ’s first decision
referring to the same exhibit, the ALJ correctly noted that Plaintiff had been assessed a GAF of
51, and he went on to conclude that the Plaintiff’s mental impairments were severe (id. at 16).
The significance of the ALJ’s misreading of the GAF score in his second decision is
compounded by the ALJ’s finding that Plaintiff’s mental status appeared to have deteriorated
following his initial evaluation in March 2011, but that the deterioration was not reflective of
Plaintiff’s mental status prior to his date last insured of December 31, 2010 (id. at 682). As
support for the noted deterioration, the ALJ relied on Plaintiff’s MTMHC medication treatment
records from July 2011 through April 2012, in which the psychiatrist assigned Plaintiff a GAF of

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50 (id. at 925-927).5 Given this, the ALJ’s finding that Plaintiff’s mental status had deteriorated
and was not reflective of his status as of his date last insured may have been based, at least in
part, on his erroneous belief that Plaintiff’s GAF score had fallen from 61 to 50 between March
2011 and July 2011, rather than the single-point reduction (from 51 to 50) that the records
actually document.
None of this discussion is intended to suggest that the ALJ must find that Plaintiff’s
mental impairments were severe or that Plaintiff was disabled as of his date last insured. GAF
scores in themselves are not determinative of anything, nor does a GAF score of 50 or 51
“preclude one from having the mental capacity to hold at least some jobs in the national
economy, Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 877 (6th Cir. 2007), as the ALJ
recognized in his first decision (A.R. at 16). It is the province of the ALJ to make findings of
fact based on the substantial evidence of record, including not only the medical opinion
evidence, including GAF scores, but also Plaintiff’s testimony about his functional limitations or
lack thereof. However, the ALJ’s findings should not be based on a misreading of the record
evidence, and the ALJ must utilize the proper legal standards, which he has failed to do.
V.

Conclusion

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

5

These records post-date the first hearing and, thus, were not part of the administrative record of
the first decision.
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