Madera v. Colvin

Filing 41

Judge Mark G. Mastroianni: ORDER entered. MEMORANDUM AND ORDER. The Commissioner's Motion to Amend the Judgment is hereby GRANTED as to the court's misapprehension of certain medical documents, and DENIED in all other respects. (Bartlett, Timothy)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
VICTOR MADERA,

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Plaintiff,

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v.

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CAROLYN W. COLVIN,

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Acting Commissioner of Social Security,

Civil Action No. 15-30133-MGM

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Defendant.

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MEMORANDUM AND ORDER ON DEFENDANT’S
MOTION TO AMEND THE JUDGMENT
(Dkt. No. 38)
December 16, 2016

MASTROIANNI, U.S.D.J.
Victor Madera (“Plaintiff”) applied for Title II Supplemental Security Income benefits on
November 2, 2012. (Dkt. No. 14, Mem. of Law in Supp. of Pl.’s Mot. to Reverse or Remand at 1.)
Plaintiff’s application was denied multiple times, most recently by an administrative law judge
(“ALJ”) after a hearing held on December 3, 2013. (Id. at 1–2.) Plaintiff sought judicial review. (Id. at
2.) After reviewing the ALJ’s decision, this court reversed and remanded on the basis of errors in the
ALJ’s opinion. (See Dkt. No. 36, Mem. and Order Granting Pl.’s Mot. to Reverse or Remand
(“M&O”).) The Commissioner filed the present motion to amend this court’s judgment, (see Dkt.

Nos. 38, 39), to which Plaintiff filed an opposition. (See Dkt. No. 40.) Upon reconsideration, the
Commissioner’s motion is granted in part and denied in part.
The Commissioner brings to this court’s attention a factual misapprehension in this court’s
prior M&O. The Commissioner explains the bolded axis designation “Personality Disorders/Mental
Retardation,” one of the evaluative criteria appearing in Plaintiff’s medical records, is a section
heading rather than a diagnosis. (See Dkt. No. 38, Mem. in Supp. of Def.’s Mot. to Amend the J.
(“Def.’s Mem.”) at 2–3.) The court appreciates this clarification. The court will amend its judgment
to reflect this technical correction.
This correction does not alter the court’s conclusion that the ALJ committed reversible error
in failing to consider all of Plaintiff’s symptoms of intellectual impairment in Step 2 of her analysis.
(See generally M&O (explaining grounds for remand).) The Commissioner argues the ALJ was correct
in finding Plaintiff does not have a severe intellectual impairment because the record contained no
formal diagnosis thereof. (See Def.’s Mem. at 6.) However, Dr. Guenther diagnosed Plaintiff with
“rule out borderline intellectual functioning.” (Administrative Record (“AR”) at 433; see also Def.’s
Mem. at 5).) Dr. Guenther also provided “medical evidence consisting of signs [and] symptoms” of
intellectual impairment. (Def.’s Mem. at 4 (quoting 20 C.F.R. § 404.1508); see also AR at 429–33.)
The ALJ incorporated these signs and symptoms, memorialized in Dr. Guenther’s written report,
only selectively, raising concerns as to the reliability of the ALJ’s severity determination. (See M&O
at 11–13.) Furthermore, to the extent it was discussed, the ALJ elided Plaintiff’s rule out intellectual
disability diagnosis by finding “rule out learning disability better address[es] the claimant’s mental
symptoms.” (AR at 23.) As the court observed in its M&O, the ALJ’s rejection of a treating
physician’s opinion based on her own “speculation or lay opinion” is independent grounds for
reversal. (See M&O at 5–6 (quoting Rivera v. Astrue, 9 F. Supp. 3d 495, 502 (E.D. Pa. 2014)) (internal
quotation marks omitted).)
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The Commissioner further argues an impairment cannot be established by self-reported
symptoms and that, consequently, Dr. Kim’s “suggestion of the possibility of an intellectual
functioning disability” based on Plaintiff’s subjective complaints cannot constitute a diagnosis. (See
Def.’s Mem. at 4.)1 The court does not rely solely on Plaintiff’s subjective statements as recorded in
Dr. Kim’s report. It notes also Dr. Kim’s notation of diagnostic code 319, which refers to
“unspecified intellectual disabilities,” (see AR at 1400); see also 2013 ICD-9-CM Diagnosis Code 319,
available at http://www.icd9data.com/2013/Volume1/290-319/317-319/319/319.htm., as well as
Dr. Kim’s referral for neuropsychological testing, a “medically acceptable clinical . . . diagnostic
technique[].”2

(Def.’s Mem. at 4 (quoting 20 C.F.R. § 404.1508).)
Finally, the court declines to amend its finding regarding the ALJ’s duty to supplement
medical evidence where there is an “obvious gap[] in the administrative record.” (See M&O at 9
(alteration in original) (quoting Lowry v. Astrue, 474 Fed. Appx. 801, 804 (2d Cir. 2002)) (internal
quotation marks omitted).) The court is aware an ALJ’s decision to supplement the medical record is
discretionary. The Commissioner nonetheless recognizes an “ALJ is to order a consultative exam . . .
when [all relevant medical evidence] is not sufficient to make a decision.” (Def.’s Mem. at 6 (quoting
Firpo v. Chater, 100 F.3d 943, 1996 WL 49258, at *2 (2d Cir. Feb. 7, 1996)) (internal quotation marks

Though she referred only to symptoms described by Plaintiff to her in particular, Dr. Guenther found “the results of
[her] [psychiatric] evaluation do appear to be consistent with the claimant’s allegations.” (AR at 433.)
2 The court is aware the record contains no evidence such a consultation took place. As the court will presently explain, a
referral by the ALJ for such testing was justified and may have yielded the diagnostic information the Commissioner
seeks.
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omitted).) The court finds this to be the case here. (See M&O at 9–10.) A rule out diagnosis, which
“means that there is ‘evidence that [the patient] [may] meet the criteria for that diagnosis, but [the
doctors] need more information to rule it out,’” (Def.’s Mem. at 4 n.5 (second alteration added)
(internal quotation marks omitted) (citing Morin v. Colvin, No. 1:13-cv-220, 2014 WL 268721, at *2
n.3 (D.N.H. Jan. 23, 2014))), is, by definition, evidence that the ALJ lacked “sufficient [information]
to make a decision.” (Id. at 6 (citing Firpo, 1996 WL 49258, at *2).) Thus, in order to adequately
assess the severity of Plaintiff’s intellectual disability, the ALJ needed further information that would
have enabled her to fully consider such a diagnosis. Because the ALJ made no referral, the record
lacks the substantial evidence required to affirm the ALJ’s determination that Plaintiff’s intellectual
impairment was non-severe. The court reiterates that Dr. Guenther’s diagnosis of rule-out
intellectual disability may not, in isolation, have warranted further testing or remand. (See M&O at
16.) However, the absence of a consultative referral is compounded by several other, reversible
errors. For this reason, the court believes remand for consideration of such a referral in light of all
medical evidence in the record is appropriate.

For the foregoing reasons, The Commissioner’s Motion to Amend the Judgment is hereby
GRANTED as to the court’s misapprehension of certain medical documents, and DENIED in all
other respects.
It is So Ordered.
_/s/ Mark G. Mastroianni________
MARK G. MASTROIANNI
United States District7 Judge

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