Diaz Lopez v. Colvin
Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. For the reasons stated above, Plaintiffs Motion for an Order Reversing the Commissioners Decision - 18 is DENIED, and the Commissioners Motion for an Order Affirming the Decision of the Commissioner - 23 is GRANTED. Judgment shall enter for the Defendant, and the Clerks Office is directed to close the case on the Courts docket. (Finn, Mary)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FERNANDO DIAZ LOPEZ,
CAROLYN W. COLVIN,
Acting Commissioner of Social
Case No. 15-cv-30200-KAR
MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR ORDER
REVERSING DECISION OF COMMISSIONER AND DEFENDANT’S MOTION TO
AFFIRM THE DECISION OF THE COMMISSIONER
(Dkt. Nos. 18 & 23)
This action seeks review of a final decision of the Acting Commissioner of Social
Security (“Commissioner”) denying the application of Plaintiff Fernando Diaz Lopez
(“Plaintiff”) for Supplemental Security Income (“SSI”). 1 Plaintiff applied for SSI on August 29,
2012, alleging disability on the basis of depression, suicidal and homicidal ideation,
schizophrenia, bipolar disorder, and anxiety and a January 1, 2008 onset of disability (A.R. at 17,
65, 152-60). The application was denied initially and on reconsideration (id. at 77-83, 88-90).
After a hearing on December 2, 2013, the Administrative Law Judge (“ALJ”) found that Plaintiff
was not disabled and denied Plaintiff’s claim (id. at 11-34). The Appeals Council denied review
A copy of the Administrative Record (referred to herein as “A.R.”) has been filed with the
court under seal (Dkt. No. 12).
(id. at 1-8), and, thus, the ALJ’s decision became the final decision of the Commissioner. This
Plaintiff seeks reversal of the Commissioner’s denial of his claim on the grounds that the
ALJ erred by committing a combination of legal and factual errors. The Commissioner has
moved to affirm on the grounds that the ALJ’s decision is legally sound and supported by
substantial evidence. Pending before this court are Plaintiff’s Motion for Order Reversing
Decision of Commissioner (Dkt. No. 18) and the Commissioner’s Motion for Order Affirming
the Decision of the Commissioner (Dkt. No. 23). The parties have consented to this court’s
jurisdiction (Dkt. No. 14). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the reasons stated
below, the court will deny Plaintiff’s motion and grant the Commissioner’s motion.
A. Educational and Occupational History and Daily Living Activities
Plaintiff was 38 years old when he filed his application (A.R. at 152). He graduated from
high school in Puerto Rico and thereafter attended a year of technical school (id. at 41). He was
employed in Puerto Rico as a security guard from 1994 through 1997 and worked in
maintenance from 1997 through 2001 (id. at 206).
In an October 10, 2010 function report submitted to, and translated by, the SSA, Plaintiff
reported that he watched TV and played videogames and he had no problems engaging in these
activities, nor did he have problems attending to his personal needs. He went to medical
appointments but otherwise stayed home. He did not help around the house or care for anyone or
any pets or other animals. He was able to go shopping occasionally if he needed to do so, and he
could manage his financial affairs. He spent time with others on the phone and in person,
although he only occasionally spent time socially with friends. He did not need to be reminded
to go places, nor did he need someone to accompany him. He had trouble with concentration
and following instructions, got along well with authority figures and had not been fired from a
job because of problems getting along with people. He did not know how to manage stress, did
not handle changes in routine very well, and had visual and auditory hallucinations (id. at 21219). The function report form was signed by Plaintiff’s mother on October 10, 2012 (id. at 219).
B. Medical Records Related to Mental Impairments 2
1. Medical Records from Puerto Rico
On August 5, 1999, Plaintiff was seen at a psychiatric hospital for evaluation and
psychiatric assessment after he held a knife to his wife’s throat (id. at 715, 717). He reported
that he was depressed, had visions, was neglecting to take his medications, and wanted to jump
off of a bridge (id. at 715). He had told his mother that he was going to see, and empathized
with, the devil, that he felt something inside him telling him to do bad things, and that he has to
do them to calm himself down. He was judged by the hospital staff to be at high risk of suicide
(id. at 719). He had no past history of hospitalizations, and was not taking psychotropic
medications (id. at 718, 726). He was discharged with a referral for outpatient treatment (id. at
On March 28, 2007, he was admitted to First Hospital Panamericano with an admitting
diagnosis of schizophrenia NOS (not otherwise specified). He spent 5 days in the hospital before
he was discharged with a diagnosis of major depressive disorder (id. at 415, 416). The records
from this hospitalization are largely illegible (id. at 416-19), with the exception of a physician’s
The record contains some evidence of physical impairments in the form of a heart condition
and degenerative disc disease but Plaintiff has not objected to the ALJ’s assessment that these
impairments were not severe and did not give rise to any exertional limitations (A.R. at 22).
Accordingly, the court need not and does not address Plaintiff’s physical impairments.
note, dated March 28, 2007, which describes Plaintiff as a 33 year old man with a longstanding
history of psychiatric illness going back to age 15, presumably schizophrenia. The physician
noted that Plaintiff had decided to stop taking his medication and was under significant stress
after separating from, then assaulting, his wife. Plaintiff told the doctor that he heard voices
telling him to kill or injure his wife, saw shadows at times, and was afraid he would kill someone
(id. at 655).
On or around August 26, 2008, Plaintiff was voluntarily hospitalized. The diagnosis was
schizoaffective disorder and the reason for the commitment was problems with the criminal/legal
system (id. at 619-22, 626). He reported that he was seeking treatment because he had been
depressed and isolated for a month. He had hit his mother, wife, and daughter and wound up in
court. He reported auditory hallucinations telling him to kill himself or to hurt other people (id.
at 623, 626). He was not employed (id. at 631). He was stable two days later at the time of
discharge and understood that he needed to take his psychiatric medications (id. at 639).
Plaintiff was seen on February 23, May 18, August 8, and December 19, 2011, and on
May 19, 2012 by Eduardo Rodriguez Falche, M.D., for follow up care. In February 2011,
plaintiff reported some hallucinations and irritability. Dr. Falche judged his thought patterns to
be logical, coherent, and relevant, and his affect dull. The doctor assigned a global assessment of
functioning (“GAF”) score of 50 on the GAF scale of 1 to 100, 3 and the doctor increased
Plaintiff’s dosage of Risperdal (id. at 318). By May 2011, Plaintiff’s mood was calm and he was
A GAF score of 41-50 indicates: “Serious 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).” Diagnostic and Statistical Manual of
Mental Disorders 34 (American Psych. Assoc., 4th ed., 2000) (“DSM-IV”).
stable, resulting in an increased GAF score of 60 (id. at 317). 4 In August 2011, Dr. Falche noted
that Plaintiff was doing well with his “diagnosis at baseline.” He remained calm with a GAF
score of 60. The report for December 2011 was essentially the same (id. at 315-16). In March
2012, Plaintiff had problems with his health and had not been able to obtain his medications for
the last three months. He reported seeing shadows and some suspiciousness, and told Dr. Falche
that he was moving to the United States to his mother’s home next month. Dr. Falche assigned
Plaintiff a GAF score of 55 (id. at 314-15). In July 2012, Christian Hernandez, M.D., noted that
Plaintiff’s though patterns were logical, coherent, and relevant, and that he was oriented.
Plaintiff was alert and calm and his affect was adequate. Dr. Hernandez assigned Plaintiff a
GAF score of 60 (id. at 314).
Medical Records from Massachusetts
On August 29, 2012, with Plaintiff having followed through on his plan to leave Puerto
Rico and establish residency in Massachusetts, he began treatment at the Gandara Mental Health
Center (“Gandara”) (id. at 380). His intake assessment reflects that Plaintiff reported that he had
come to Gandara to continue his treatment for schizoaffective disorder (id. at 369). Plaintiff
reported that he moved to Massachusetts to be with his mother and his two children. He was
currently unemployed because of his disorder and relational problems. He reported that “he
cannot be around people, he describes his symptoms as a fire bowl that can erupt at any moment,
he hears voices an[d] can see shadows” (id.). He indicated that he did not want to work and did
not want help finding work (id. at 371). He enjoyed watching TV and playing video games, and
reported no limitations in activities of daily living (id. at 370). He was taking Risperdone,
A GAF score of 51-60 indicates: “Moderate 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.
Benztropine, Fluoxetine, and Prazosin HCL with no reported side effects (id. at 372). His
appearance was within normal limits; he was cooperative but nervous and anxious; his speech,
mood, affect, intellectual functioning, insight, and judgment were within normal limits; he
reported auditory and visual hallucinations; his thought content was persecutory and guarded;
and his thought process included flight of ideas (id. at 374). Plaintiff’s GAF score at intake was
assessed at 59 (id. at 359).
The plan for treatment at Gandara was for cognitive behavioral therapy twice monthly
with licensed social worker Claudia Rexach to help Plaintiff understand and control his
symptoms, coupled with a continuation of his medications so that he would be able to stabilize
and reach a functional stage on a daily basis (id. at 378, 380, 381). Plaintiff also saw advanced
practice registered nurse Peter Bourque at Gandara every other month beginning on October 16,
2012. Mr. Bourque diagnosed anxiety and schizoaffective disorder and prescribed psychiatric
medication (id. at 362-68).
Plaintiff chose to cease treatment at Gandara in June 2013, informing the staff at Gandara
that he was going to seek treatment at another center (id. at 359). Plaintiff’s discharge summary,
which he signed, reflects that Plaintiff had been stable for the last 6 months and compliant with
his treatment and its goals. He had been functioning well inside and outside his home. His anger
had decreased and his psychotic symptoms were no longer active. His GAF score at discharge
was reported as 65 (id. at 359-60). 5
A GAF score of 61-70 indicates: “Some mild symptoms (e.g., depressed mood and mild
insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally functioning pretty well, has some
meaningful interpersonal relationships.” DSM-IV at 34.
According to records submitted to the SSA, Plaintiff was incarcerated at the Hampden
County Sheriff’s Department and Correctional Center (“Ludlow Correctional Center”) beginning
on or around October 1, 2012 (id. at 321). During his admission screening, Plaintiff reported that
he had auditory and visual hallucinations and schizophrenia and was on medication. He was
oriented to time and place and was not combative. He reported that he did not have suicidal
intentions, but had tried to kill himself three times in the past. Plaintiff did not appear anxious or
depressed (id.) He reported that he was receiving outpatient mental health treatment at Gandara
(id. at 325). Attendant Ivette Richardson, whose credentials are not apparent from the records,
conducted a forensic survey of Plaintiff’s mental status on October 2, 2012. The survey was
generally positive. Plaintiff was reported to be oriented in all spheres, able to concentrate, with a
logical thought process and a stable mood. He reported that he had tried to kill himself three
times many years ago by overdosing on pills, but denied any present intent or plan to injure
himself or anyone else. He was taking Risperdal, Cogentin, and Prozac, and reported that he had
been on psychiatric medication since 1994. He reported that, if he stopped taking his
medication, he would hear voices very clearly and constantly, but that the voices were at a
minimum at that time because he was taking his medication (id. at 333-34, 337). Plaintiff told
Ms. Richardson that he had not worked in over 4 years and that when he was working he had
many problems with his co-workers because of the instability of his moods (id. at 339). Plaintiff
was discharged from the Ludlow Correctional Center before any follow-up psychiatric care was
provided (id. at 338).
Plaintiff initiated weekly counseling at Valley Psychiatric Services, Inc. on August 12,
2013 with social worker and therapist Luz M. Rivera. At the initial assessment, he reported that
he suffered from bipolar disorder, depression, hallucinations, and schizophrenia (id. at 580, 583).
He identified his mother as his support relationship and indicated a good relationship with his
family (id. at 583). He reported that he had been prescribed the following psychiatric
medications by Mr. Bourque: Prazosin for insomnia; Benztropine for psychosis; Fluoxetine for
depression; and Risperdone as an antipsychotic. There were no reported side effects (id. at 586).
According to the notes, Plaintiff mentioned that he was not taking his medications and that it was
sometimes difficult to control himself (id. at 598). Nonetheless, Ms. Rivera assessed his
appearance, speech, affect, perceptions, thought content and process, intellectual functioning,
orientation, memory, insight, and judgment as within normal limits. She indicated that he
appeared rigid, tense, and anxious (id. at 588). Notwithstanding prior denials of physical or
sexual abuse (see, e.g., id. at 347, 370), on this occasion Plaintiff reported molestation by a
cousin when he was 10 years old (id. at 597).
Plaintiff was scheduled for an October 25, 2013 psychiatric evaluation at Valley
Psychiatric Services, Inc. (id. at 580). Handwritten notes of that consultation are difficult to
read, but it appears that Plaintiff reported a longitudinal history of mental illness that was
generally consistent with his prior reports (id. at 606). The notes from October 25, 2013 are not
signed, but medications were prescribed for Plaintiff on that date by Candace L. O’Brien (id. at
C. Opinion Evidence
1. EAEDC Medical Report 6
On August 15, 2012, shortly after Plaintiff arrived in the United States, physician MartinHernandez examined Plaintiff in connection with an application for EAEDC benefits. The
EAEDC stands for Emergency Aid to the Elderly, Disabled, and Children, a Commonwealth of
Massachusetts benefits program.
resulting report provides that Plaintiff complained of schizophrenia, anxiety, and depression (id.
at 356). The doctor concluded that Plaintiff had mental health impairments that affected his
ability to work and were expected to last for more than a year (id. at 358).
2. UMMC Disability Evaluation Services
On October 18, 2012, Plaintiff was evaluated at UMMC Disability Evaluation Services
by psychologist Sheree Estes, Ph.D. (id. at 347). Plaintiff reported mental health, medical,
family, and educational and vocational histories that were generally consistent with his prior
recitations of his history. He confirmed to Dr. Estes that he was treating at Gandara with
someone named Peter and engaged in counseling every two weeks with someone named Claudia
(id.). Dr. Estes diagnosed major depressive disorder with a question of psychotic tendencies and
anxiety disorder with a question of panic tendencies with a psychotic disorder to be ruled out (id.
at 349-50). Administration of a mini-mental status examination produced a score of 21 out of
30, which would be considered in the “mildly impaired range” (id. at 349). Dr. Estes reported
that Plaintiff’s problems with the mini-mental status examination were that he did not know the
day, date, or month, had difficulty with his address, and could not spell the word “mundo”
3. Non-examining Consultative Disability Determinations
On November 23, 2012, in connection with Plaintiff’s SSI application, psychologist
Brian O’Sullivan, Ph.D., concluded, based on a record review, that Plaintiff was not disabled.
Dr. O’Brian noted a history of depression, schizophrenia, bipolar disorder, anxiety, and suicidal
and homicidal behaviors (id. at 57). He concluded that Plaintiff had a severe medically
determinable mental health impairment that did not precisely satisfy the diagnostic criteria for
schizophrenia, paranoid, with other disorders (id. at 58). Concluding that Plaintiff’s report of his
daily living activities and the medical records indicated better functioning than the “worst psych
allegations,” Dr. Sullivan found that Plaintiff had moderate restrictions in his activities of daily
living; moderate activities in maintaining social functioning; moderate difficulties in maintaining
concentration, persistence or pace; and no repeated episodes of decompensation of extended
On reconsideration, psychologist J. Litchman, Ph.D., also indicated that a medically
determinable impairment was present that did not precisely satisfy the diagnostic criteria for
schizophrenia, paranoid with other psychotic features (id. at 70). He concluded, based on his
review of the records, that there had not been any real confirmed psychotic episodes and that
Plaintiff was in control especially when he was compliant with taking his medications (id.). As
did Dr. O’Sullivan, Dr. Litchman found that the reports of Plaintiff’s activities of daily living and
his medical records indicated inconsistencies with Plaintiff’s claims of mental impairment. Dr.
Litchman concluded that Plaintiff had mild restrictions in his activities of daily living; moderate
difficulties in maintaining social functioning; moderate difficulty in maintaining concentration,
persistence, and pace; and had not experienced repeated episodes of decompensation of extended
4. Valley Psychiatric Services, Inc. Mental Impairment Questionnaire
On November 18, 2013, Ms. Rivera completed a mental impairment questionnaire that
was also signed by Paul Redstone, M.D. Ms. Rivera noted that Plaintiff presented with
schizophrenia, visual and auditory hallucinations, anxiety symptoms, bipolar disorder, major
depressive disorder, and sleep disturbance (id. at 600). In a checklist of signs and symptoms, she
indicated that Plaintiff exhibited impaired impulse control; generalized persistent anxiety; mood
disturbance; pathological aggressivity; persistent disturbances of mood or affect; bipolar
symptoms; bipolar syndrome with full symptomatic picture of both manic and depressive
syndromes; intense and unstable interpersonal relationships, and impulsive and damaging
behavior; hallucinations or delusions; motor tension; and sleep disturbance (id. at 601). Ms.
Rivera concluded that Plaintiff would be seriously limited in his ability to deal with the stress of
semiskilled or unskilled work because of his problems forging interpersonal relationships, his
aggressive behaviors, and his inability to control himself. She found that he would be seriously
limited in his ability to interact appropriately with the general public, maintain socially
appropriate behavior, or use public transportation because he was unable to be around other
people without feeling anxiety and nervousness (id. at 603). Overall, Ms. Rivera assigned
Plaintiff a GAF score of 50 (id. at 600). She concluded that Plaintiff had marked restrictions in
activities of daily living; extreme difficulties in maintaining social functioning; mild to no
difficulty in maintaining concentration, persistence, or pace; and that he had had one or two
episodes of decompensation within a twelve month period, each of at least two weeks duration
(id. at 604).
5. Hearing Testimony and Mother’s Statement
Through an interpreter, Plaintiff testified at the hearing that the last job he held was as a
maintenance worker at a cemetery or a funeral home cutting grass (id. at 41). He had problems
with his co-workers at this job. They made fun of him, so he grabbed a shovel and wanted to hit
one (id. at 43). He got the job because a friend of his wanted to help him, and they were patient
with him, but he had a lot of problems (id. at 47). He previously worked in construction, but he
had a problem with a female engineer, whom he also wanted to assault (id.). He had problems
with his co-workers at each of his jobs (id.). He had a criminal record of assault and battery
committed when he was not taking his medications and he was on probation on the date of the
hearing (id. at 42).
He lived with his mother and his children, a daughter aged 19 and a son aged 15, in an
apartment (id. at 42-43). He spent his days locked in his room, wearing headphones so that he
could not hear the voices that were always talking to him. He had heard the voices ever since he
could remember. His medication calmed the voices down, but they were always there (id. at 44,
46). He said he did not like to leave the house because he did not like the way people looked at
him. If he went to a store or used public transportation, he would look at the floor or his
cellphone to distract himself (id. at 44). He had not tried to find work in Massachusetts because
he did not like the way people looked at him (id. at 46). He reported that he sometimes didn’t
take his medications because they were very strong and he got acid in his stomach and they made
him sleepy, but that the medication he was taking at the time of the hearing was helping him “a
little bit” and he wanted to continue testing new medications to try and get better. He needed his
mother to remind him to take his prescriptions (id. at 45).
Plaintiff’s mother was present and prepared to testify and the ALJ indicated that he was
willing to hear her testimony (id. at 47). Plaintiff’s counsel told the ALJ that the mother’s
testimony would substantially duplicate a letter she had written, and decided against calling her
(id.). In her letter, Plaintiff’s mother represented that Plaintiff had a history of schizophrenia,
bipolar disorder, auditory and visual hallucinations of commandos telling him to do things,
depression, anxiety, aggressiveness, suicidal and homicidal ideation, and insomnia. He had had
problems with conduct in school, which increased in severity as he grew older. Plaintiff’s
mother reported that he had suffered various crises in his condition because he forgot to take his
medication. His hallucinations had required him to be hospitalized on various occasions. Even
when he took his medications, they did not suppress all of his hallucinations. He had to be
monitored at all times to ensure he tended to his personal hygiene, attended appointments, and
took his medication. When he was taken out shopping for clothes or “primary need articles,” he
was more attracted to objects that shone or reflected light, such as flashlights. At home, he used
his headphones at the highest possible volume to reduce the voices that he heard all of the time
and isolated himself in his room, locked the door, and played video games (id. at 613).
Following Plaintiff’s testimony, Larry Takki, an impartial vocational expert, summarized
Plaintiff’s vocational history as one in which Plaintiff had primarily worked at unskilled jobs.
His past employment in construction would have been performed at a heavy to very heavy
exertional level, while the maintenance work at the cemetery was performed at a medium or light
exertional level (id. at 48-49). Mr. Takki noted that Plaintiff’s employment history also included
work as a security guard, which would be classified as a semi-skilled position performed
between the light to medium level in exertional terms (id. at 49).
Mr. Takki was asked in a hypothetical question to assume a residual functional capacity
(“RFC”) of an individual of the Plaintiff’s age and with his educational background and past
work experience who had no exertional limitations, but would be limited to simple, routine,
repetitive one to two step tasks which would require concentration for up to a two hour time
period; required no interaction with the general public and minimal contact or interaction with
co-workers, no more than occasional changes in the work routine, and no English language
communication skills. In response to this question, Mr. Takki testified that this hypothetical
person would be able to perform Plaintiff’s past work in construction or maintenance because
these positions typically do not require work as a member of a team, and the tasks can be
demonstrated rather than described in English. The ALJ then altered the hypothetical by
inquiring whether these positions in construction and maintenance would remain available if the
individual’s impairments would result in him missing work approximately 4 times a month or
being off task approximately 25 percent of the workday. The vocational expert responded that
these factors, singly or in conjunction, would result in no work being available (id. at 49-50).
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)). “While ‘substantial evidence’ is ‘more than a scintilla,’ it certainly does not approach
the preponderance-of-the-evidence standard normally found in civil cases.” Bath Iron Works
Corp. v. U.S. Dep’t of Labor, 336 F.3d 51, 56 (1st Cir. 2003) (citing Sprague v. Dir. Office of
Workers’ Comp. Programs, U.S. Dep’t of Labor, 688 F.2d 862, 865 (1st Cir. 1982)). 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.
B. Standard for Entitlement to SSI
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)
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-part analysis
required by the regulations. At the first step, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since August 29, 2012, the application date (A.R. at 19). At the
second step, the ALJ found that Plaintiff had certain severe impairments, consisting of
schizoaffective disorder and depression with psychotic features (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 23). In order to determine whether Plaintiff’s mental impairments met or
medically equaled the criteria of any listed impairment, the ALJ asked whether Plaintiff’s mental
impairments resulted in at least two of the following impairment-related functional limitations:
marked restriction of activities of daily living, marked difficulties in maintaining social
functioning, marked difficulties in maintaining concentration, persistence, or pace, or repeated
episodes of decompensation, each of extended duration. See 20 C.F.R. § Pt. 404, Subpt. P, App.
1. The ALJ found that Plaintiff did not meet the criteria because Plaintiff had only a mild
restriction of his ability to engage in activities of daily living, moderate difficulties in
maintaining social functioning, moderate difficulties in maintaining concentration, persistence,
or pace, and no episodes of decompensation of extended duration (A.R. at 23-24).
Before proceeding to step four, the ALJ found that Plaintiff had the RFC to perform a full
range of work at all exertional levels, but with the following non-exertional limitations: he was
limited to work involving simple, routine, repetitive 1-2 step tasks which required concentration
for 2-hour time periods and no more than occasional changes in routine, no interaction with the
general public and minimal contact or interaction with co-workers, and no English language
skills (id. at 24). At step four, relying on the vocational expert’s testimony, the ALJ determined
that the claimant was capable of performing past relevant work as a construction laborer or
maintenance worker (id. at 27). Thus, the ALJ was not required to, and did not, reach step five
of the analysis.
D. Plaintiff’s Objections
Plaintiff contends that the ALJ erred by (1) making a credibility determination that was
not supported by substantial evidence; (2) failing to give controlling weight to opinion evidence
from a treating medical source and failing to appropriately weigh evidence from an independent
consultant and a treating medical source; (3) failing to address the statement by Plaintiff’s
mother, who is Plaintiff’s primary caretaker; (4) failing to develop the record as to Plaintiff’s
reasons for changing mental health care providers in 2013; and (5) failing to require translation
of certain medical records provided to the SSA in Spanish. The court will address these
contentions in turn. 7
1. The ALJ’s Credibility Determination was Based on Substantial Evidence
The ALJ was required to follow a two-step process to evaluate the credibility of
Plaintiff’s claimed symptoms and functional limitations. “At the first step, the [ALJ] must
determine whether there exists an impairment that could reasonably be expected to produce
[Plaintiff’s] . . . symptoms.” Amaral v. Comm’r of Soc. Sec., 797 F. Supp. 2d 154, 161 (D. Mass.
2010) (citing SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996)). In the instant case, the ALJ
found that Plaintiff’s medically determinable impairments could reasonably be expected to cause
the alleged symptoms (A.R. at 26). In other words, he found that Plaintiff’s schizoaffective
disorder and depression with psychotic features could reasonably be expected to produce audio
and visual hallucinations and significant behavioral and adaptive problems.
As a second step, once the ALJ found that Plaintiff had such medically determinable
impairments, he was required to “evaluate evidence of the intensity and persistence of the
In its review of Plaintiff’s objections to the ALJ’s decision, the court has revised the order in
which they appear in Plaintiff’s memorandum because the ALJ’s decision to accord no weight to
certain medical opinion evidence was dependent on his credibility analysis.
symptoms, including statements from the claimant.” Johnson v. Colvin, Civil Action No. 1340003-TSH, 2016 WL 4639134, at *10 (D. Mass. Sept. 6, 2016) (citing 20 C.F.R. §§
404.1529(c)(1); 416.929(c)(1)). “However, a claimant’s subjective description of symptoms
alone cannot establish disability; the ALJ also must consider any other available evidence,
including the objective medical evidence, to determine whether the claimant’s testimony is
consistent with the remainder of the record.” Id. (citing 20 C.F.R. §§ 404.1529(a), (c);
416.929(a), (c)). The ALJ’s credibility determination “is entitled to substantial deference,
especially when supported by specific findings.” Frustaglia v. Sec’y of Health & Human Servs.,
829 F.2d 192, 195 (1st Cir. 1987). To evaluate symptoms that are to a significant degree
subjective, as are Plaintiff’s symptoms, the ALJ should “investigate all avenues presented that
relate to subjective complaints.” Avery v. Sec’y of Health of Human Servs., 797 F.2d 19, 28 (1st
The ALJ identified two significant factors that he found weighed against the claimant’s
credibility regarding the severity of his symptoms and the related functional limitations. First, he
found that the record “clearly establishes that the claimant’s condition improves when he is
compliant with his medications” (A.R. at 25). 8 There is substantial evidence in the record to
support the ALJ’s finding that Plaintiff’s condition improved when he took medication
prescribed for his mental health impairments, and that his hallucinations and related behavioral
problems returned with full force when he ceased doing do so. According to the records,
Plaintiff’s psychiatric hospitalizations in Puerto Rico occurred when he stopped taking his
medication (A.R. at 639, 665, 718). While he was under the care of Dr. Falche in Puerto Rico,
An individual for whom treatment restores the ability to work is not under a disability. See
Connolly v. U.S. Social Sec. Admin., Comm’r, Civil No. 08-cv-509-JD, 2010 WL 148137, at
**4-5 (D.N.H. Jan. 14, 2010) (citing SSR 82-59, 1982 WL 31384, at *1 (1982)).
he was calm and stable, with GAF scores of 60, indicating moderate symptoms, when he was
taking his medications, but suffered from hallucinations and irritability and was deemed by his
care providers to be exhibiting serious symptoms of impairment when he was not (id. at 314-18).
His records from Gandara and the Ludlow Correctional Center also reflect that his hallucinations
and related functional limitations were substantially controlled by medication (id. at 319-42, 359414). Plaintiff has not argued that there was any reason why he could not take the medications
prescribed for him, and his recent psychiatric records from Gandara and Valley Psychiatric
Service indicate that he did not suffer from serious side effects from those medications (id. at
372, 586), 9 nor has he contended that he was unable to pay for them. See Connolly, 2010 WL
148137, at *9 (“One justification for not seeking medical care may be the inability to afford
treatment and the lack of access to free or low-cost medical services.”). Accordingly, there was
substantial record evidence to support the ALJ’s refusal to fully credit Plaintiff’s account of the
severity of his symptoms and functional limitations because: (1) the records showed that Plaintiff
generally was compliant with medical advice and took his prescriptions; and (2) Plaintiff’s
account did not match up with medical records that consistently showed controlled symptoms
and an improved level of functioning when Plaintiff took his medication (A.R. at 25).
Second, the ALJ found that there was “significant evidence of symptom exaggeration
when [Plaintiff] spoke with medical practitioners related to a benefit claim or in the months
immediately preceding the hearing” (id. at 25). The ALJ noted that Plaintiff’s records from
Gandara reported a significant improvement in Plaintiff’s symptoms and functioning within and
outside of his home. His consultative examination with Dr. Estes in connection with his
Plaintiff testified at the hearing that his medications were strong and caused acid reflux and
made him sleepy (A.R. at 45). He also reported acid reflux as a side effect of medication while
he was incarcerated at the Ludlow Correctional Center (id. at 339).
application for EAEDC benefits was well into his course of treatment at Gandara, by which time
the reports of his mental health condition indicated only moderate impairment. When he went to
the consultative examination, however, he was accompanied by his mother, and he reported
visual hallucinations and auditory hallucinations telling him to hurt himself and significant
restrictions in his daily living activities. He also exhibited an inability to perform simple
memory tasks. Although Plaintiff denied problems with sleep, his mother indicated to Dr. Estes
that he had such problems (id. at 348).
Further, the ALJ noted, Plaintiff’s June 24, 2013 discharge summary from Gandara
indicated that he had been stable for six months and increased his functionality in the outside
world, and that his psychotic symptoms were no longer active. He had gone from a GAF score
of 59 at intake to a GAF score of 65 on discharge (id. at 359). Some six weeks later, on August
12, 2013, when Plaintiff had his initial appointment with Ms. Rivera, his condition, according to
his account of his symptoms to Ms. Rivera, had, as characterized by the ALJ, “deteriorated
precipitously” (id. at 25). By November 2013, when Ms. Rivera completed the mental
impairment questionnaire also signed by Dr. Redstone, Plaintiff’s condition had reportedly
deteriorated further despite the fact that he was reportedly taking his medications. He was,
according to the questionnaire, “presenting [with] schizophrenia, visual and auditory
hallucinations, anxiety symptoms, bipolar disorder (swing moods), major depressive disorder,
and sleep disturbance (insomnia),” all of which were expected to last for at least one more year.
He was assigned a GAF score of 50, and reported to have marked restrictions in activities of
daily living and extreme limitations in maintaining social functioning (id. at 600, 604). The ALJ
concluded from the conflict between the Gandara records when compared to Plaintiff’s reports of
his symptoms and functional limitations to Dr. Estes and Ms. Rivera, that the latter were
“aberrations without credibility” intended by Plaintiff to improve his chances of obtaining SSI
benefits (id. at 25-26).
In Orman v. Astrue, 497 Fed. Appx. 81 (1st Cir. 2012) (unpublished), the First Circuit
held that an ALJ erred by relying on stray comments in medical records to conclude that a
claimant was malingering where “none of these physicians ever indicated that they believed that
claimant was malingering or exaggerating his pain.” Id. at 85 (emphasis omitted). Plaintiff says
the ALJ in the instant case committed the same error by finding that Plaintiff was exaggerating
his symptoms to obtain benefits when no treating care provider had expressed any doubt about
Plaintiff’s symptoms, by citing an absence of objective medical findings supporting Plaintiff’s
claims when the existence of hallucinations is not susceptible to objective proof, and by placing
too much weight on the GAF score of 65 in the Gandara discharge summary (Dkt. No. 19 at 914, 16-17).
Contrary to Plaintiff’s contention, the ALJ’s ruling appears to be consistent with the
Social Security Ruling in effect at the time that governed the factors an adjudicator was directed
to use for purposes of assessing a claimant’s credibility. See SSR 96-7p, 1996 WL 374186. 10 In
a case such as this one, where “the individual’s statements about the intensity, persistence or
functionally limiting effects of . . . symptoms are not substantiated by objective medical
evidence,” the ALJ was directed to consider the entire case record, including “the medical signs
and laboratory findings, the individual’s own statements about the symptoms, any statements and
other information provided by treating or examining physicians or psychologists and other
persons about the symptoms and how they affect the individual.” Id. at *2. “One strong
indication of the credibility of an individual’s statements is their consistency both internally and
In 2016, SSR 96-7p was superseded by SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016).
with other information in the case record.” Id. at *5. The ALJ properly relied on this factor, and
on Plaintiff’s longitudinal history of mental health treatment, see id. at *6 (effects of symptoms
can often be clinically observed), in assessing the credibility, or lack thereof, in Plaintiff’s
statements about the severity of his symptoms. The ALJ did not find that Plaintiff invented his
mental impairments or his symptoms. He credited that Plaintiff suffered from severe
schizoaffective disorder and depression with psychotic features (A.R. at 19). He found that,
without medication, Plaintiff experienced auditory and visual hallucinations and anxiety that
would interfere with concentration, and that he had difficulty with coworkers and others outside
of his family (id. at 23). He nonetheless found that the statements Plaintiff made to Dr. Estes and
Ms. Rivera about the severity of the symptoms caused by his mental impairments, at the point in
time he when spoke with them, were not credible, and he inferred, based on the timing of those
statements, that Plaintiff had an ulterior motive for exaggerating his symptoms when he made
these statements. The ALJ in the instant case is not alone among SSA adjudicators in having
based a credibility assessment on inconsistencies in medical records that could be interpreted as
showing that a claimant was attempting to present himself as more impaired than he was for
purposes of obtaining benefits. See White v. Colvin, No. CA 14-171 S, 2015 WL 5012614, at
*11 & n.17 (D.R.I. Aug. 21, 2015) (substantial evidence supported ALJ’s rejection of IQ scores
purporting to establish mental retardation when those scores were inconsistent with other record
evidence of the claimant’s intellectual functioning).
In 2016, the SSA issued SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016), superseding
SSR 96-7p and providing revised guidance about the factors and process by which an SSA
adjudicator is instructed to evaluate claimant credibility. For purposes of evaluating the
credibility of a claimant’s subjective statements about symptoms and functional limitations, SSR
16-3p directs adjudicators to, among other things, “compare statements an individual makes in
connection with the individual’s claim for disability benefits with any existing statements the
individual made under other circumstances.” Id. at *8. This is precisely what the ALJ did in this
case, and requiring this analysis is at least implicit in the relevant provisions of SSR 96-7p,
which focus on consistency as an important factor in assessing claimant credibility. Implicit in
many credibility determinations made when an ALJ declines to fully credit a claimant’s
subjective complaints of pain or other symptoms is a finding that the claimant is engaging in
some degree of exaggeration. “Here the ALJ explained in detail his rationale for disbelieving
Plaintiff.” Botelho v. Colvin, 153 F. Supp. 3d 451, 463 (D. Mass. 2015). “Substantial evidence
supports the ALJ’s finding that Plaintiff’s statements about [his symptoms and] and ability to
work were not fully credible.” Johnson, 2016 WL 4639134, at *11.
Moreover, even if the ALJ erred in concluding that Plaintiff was exaggerating his
symptoms in the absence of treating source evidence to this effect, the ALJ’s credibility
determination had a second and legally adequate basis. By detailing the inconsistencies in
Plaintiff’s statements about his symptoms and functional limitations when measured against the
substantial record evidence showing that Plaintiff’s mental health impairment responded well to
medication, the ALJ provided an alternative and valid reason for his credibility determination.
See Bourinot v. Colvin, 95 F. Supp. 3d 161, 181-82 (D. Mass. 2015) (ALJ’s credibility
determination properly supported by contradictions between claimant’s statements about severity
of her pain and contents of medical records). As long as an ALJ provides at least one legally
sufficient reason for his or her credibility determination, that determination will be upheld. See
Bray v. Comm’r of Soc. Sec. Admin, 554 F.3d 1219, 1227 (9th Cir. 2009) (even when one of
ALJ’s stated reasons for disbelieving a claimant is not supported by the record, the error is
harmless as long as another stated reason is supported by the record); cf. Gonzalez v. Astrue,
C.V. No. 11-30201-KPN, 2012 WL 2914453, at *3 (D. Mass. July 5, 2012) (discussing ALJ’s
assignment of weight to medical source opinion; holding that even if one reason for affording
opinion evidence little weight was improper, ALJ’s treatment of opinion will be sustained if
other stated reason is proper and adequately supported).
2. The ALJ Did Not Err in his Treatment of Medical Opinion Evidence
Plaintiff’s challenge to the ALJ’s treatment of “the medical opinions” of Dr. Estes, Ms.
Rivera, and Dr. Redstone is that the ALJ violated the treating physician rule when he failed to
accord controlling weight to the opinion signed by Dr. Redstone (and Ms. Rivera) (Dkt. No. 19
at 9-12), and failed to give appropriate weight to the opinions of Dr. Estes and Ms. Rivera,
which, he contends, must be evaluated using factors similar to those used when “evaluating any
medical opinion” (id. at 12-14). As to Dr. Redstone, the Commissioner argues, with some force,
that he was not a treating physician whose opinion was presumptively entitled to controlling
weight (Dkt. No. 24 at 9-10). Even if it was, the Commissioner’s argument continues, the ALJ
articulated legally sufficient reasons for declining to accord controlling weight – or any weight –
to opinion evidence from Dr. Redstone, Ms. Rivera, and Dr. Estes and those reasons pass muster
(id. at 10-15).
“An ALJ must ‘always consider the medical opinions in [the] case record, 20 C.F.R. §§
404.1527(b); 416.927(b), and SSA regulations prioritize the opinions of a claimant’s treating
sources. See 20 C.F.R. §§ 404.1527(c)(1); 416.927(c)(1) (stating that “[g]enerally we give more
weight to the opinion of a source who has examined you than to the opinion of a source who has
not examined you”); see also Johnson, 2016 WL 4639134, at *8. While “[c]ontrolling weight”
is generally given to a treating physician’s opinion, see, e.g., Arruda v. Barnhart, 314 F. Supp.
2d 52, 72 (D. Mass. 2004), however, “[t]he law in this circuit does not require the ALJ to give
greater weight to the opinions of treating physicians.” Arroyo v. Sec’y of Health & Human
Servs., 932 F.2d 82, 89 (1st Cir. 1991); Arruda, 314 F. Supp. 2d at 72. Controlling weight is
generally given to a treating physician’s opinion when it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other
substantial evidence” in the record. 20 C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2).
Where controlling weight is not given to a treating source opinion, the ALJ
considers an array of factors to determine what weight to grant the opinion,
including the length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship, the degree to
which the opinion can be supported by relevant evidence, and the consistency of
the opinion with the record as a whole. See 20 C.F.R. §§ 404.1527(c)(2)-(6);
416.927(c)(2)-(6). Further, the regulations require adjudicators to explain the
weight given to a treating source opinion and the reasons supporting that decision.
20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2) (“We will always give good reasons
in our notice of determination or decision for the weight we give your treating
Johnson, 2016 WL 4639134, at *8. “’Inconsistencies between a treating physician’s opinion and
other evidence in the record are for the ALJ to resolve.’” Id. (quoting Roshi v. Comm’r of Soc.
Sec., Civil Action No. 14-10705-JGD, 2015 WL 6454798, at *6 (D. Mass. Oct. 26 2015)).
Assuming that Dr. Redstone functioned as a treating physician, 11 the ALJ declined to give
controlling, or any, weight to Dr. Redstone’s findings for reasons the ALJ explained in his
The Administrative Record does not contain any document showing that Dr. Redstone ever
met Plaintiff. Although the ALJ might have addressed the weight he was assigning to Dr.
Redstone’s opinion based of the length of the treatment relationship (short at best) and frequency
of examination (possibly never), he made no reference to this factor in his decision (A.R. at 23,
27). “[A]n agency’s order must be upheld, if at all, ‘on the same basis articulated in the order by
the agency itself.” Fed. Power Comm’n v. Texaco, Inc., 417 U.S. 380, 397 (1974) (quoting
Burlington Truck Lines, Inc. v. U.S., 371 U.S. 156, 168-69 (1962)). Accordingly, Plaintiff’s
contention that the ALJ had an obligation to request additional information from Dr. Redstone
about the extent of his treating relationship with Plaintiff, if any, misses the mark and need not
be addressed by the court (Dkt. No. 27 at 5-6).
credibility analysis, which are discussed above (A.R. at 23, 25). Because the ALJ supported his
rejection of the treating physician’s opinions with express references to inconsistencies between
those opinions and other portions of the record, and because resolving those inconsistencies was
the purview of the ALJ, his decision to grant no weight to the treating physician’s opinions did
not constitute error. See Johnson, 2016 WL 4639134, at *8.
The ALJ was required to consider all of the medical opinions in the record, and, as
previously noted, SSA regulations “prioritize the opinions of a claimant’s treating sources,”
Bourinot, 95 F. Supp. 3d at 175 (citing 20 C.F.R. §§ 404.1527(c)(1); 416.927(c)(1)), such as Ms.
Rivera. Nonetheless, “[t]he regulations allow the ALJ to discount the weight given to a treating
source opinion where it is inconsistent with other substantial evidence in the record including
treatment notes and evaluations by examining and non-examining physicians.” Id. The ALJ was
entitled to discount Ms. Rivera’s evidence on the basis that it was inconsistent with medical
records of other treating sources, as he did. See id. at 176. As to Dr. Estes, as an initial matter,
she does not appear to have concluded that Plaintiff’s mental health impairments presented a
barrier to his ability to work. She reported the results of the mini-mental status examination she
administered as showing that Plaintiff was in the “mildly impaired range,” and further found that
“his attention, concentration, as well as his memory do appear slightly problematic” (A.R. at
349). In any event, Dr. Estes was “an independent medical examiner rather than a treating
physician . . . Therefore, the ALJ was not required to give controlling weight to [her] opinions or
even provide good reasons for failing to adopt them.” Arrington v. Colvin, Civil Action No. 1510158-JGD, 2016 WL 6561550, at *17 (D. Mass. Nov. 3, 2016).
Moreover, “there is no question that the ALJ may rely on reports from non-treating
physicians when they are more consistent with the record than reports provided by treating
physicians.” Sokolovskaya v. Colvin, 187 F. Supp. 3d 324, 334 (D. Mass. 2016) (citing BerriosLopez v. Sec’y of Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991); DiVirglio v. Apfel,
21 F. Supp. 2d 76, 80-81 (D. Mass. 1998)). The ALJ did not substitute his own lay opinion for
opinions offered by Dr. Redstone, Dr. Estes and Ms. Rivera. Rather, he gave great weight to,
and relied upon, mental RFCs prepared by Dr. Sullivan and Dr. Litchman, both non-examining,
non-testifying psychologists (A.R. at 23, 54-63, 64-76). These reports “reflect a significant
level of attention and thought afforded by the [psychologists] to their assessments,” Arruda, 314
F. Supp. 2d at 75, particularly with respect to Plaintiff’s limitations in concentration and
persistence and his social interaction limitations (A.R. at 61, 72-73). The ALJ did not err by
affording these opinions “great weight.” See Arrington, 2016 WL 6561550, at *15 (ALJ entitled
to give “great weight” to opinion evidence from non-examining, non-testifying state agency
physician and her opinion constituted substantial evidence supporting the ALJ’s determination).
Nor did the ALJ err by relying, to the limited extent that he did so, on the GAF scores
assigned to Plaintiff by care providers at Gandara as a reason for rejecting the opinion evidence
of Dr. Redstone and Ms. Rivera. “The GAF scale provides a ‘”rough estimate” of an individual’s
psychological, social, and occupational functioning.’” Bourinot, 95 F. Supp. 3d at 178 (quoting
Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998)). It is true, as Plaintiff contends,
that the GAF scale has “recently fallen into disfavor as an assessment tool . . . ‘[d]ue to concerns
about subjectivity in application and a lack of clarity in the symptoms to be analyzed.’” Id.
(citing Kroh v. Colvin, No. 13-CV-01533, 2014 WL 43844675, at *17 (M.D. Pa. Sept. 4, 2014)).
Nonetheless, the SSA has announced that it “will continue to receive and consider GAF scores
just as it would other opinion evidence, but scores must have supporting evidence to be given
significant weight.” Id. (citing Kroh, 2014 WL 4384675, at *18; Lane v. Colvin, No. C13-5658-
MJP, 2014 WL 1912065, at *9 (W.D. Wash. May 12, 2014)). The GAF scores in Gandara’s
records had supporting weight in the narrative and other information in Gandara’s records and
“the ALJ’s reliance on the scores in this case was not in error.” Id. (not error for ALJ to rely on a
range of GAF scores that were adjusted over time by mental health care provider).
It is the ALJ’s responsibility, not the responsibility of this court, to resolve conflicts in
the evidence, including in opinion evidence, and draw reasonable inferences from the record.
Because the ALJ did so in this case, his refusal to give weight to the opinion evidence from Dr.
Redstone, Dr. Estes and Ms. Rivera was not error. See, e.g., Arrington, 2016 WL 6561559, at
*18; Bourinot, 95 F. Supp. 3d at 178-79.
3. The ALJ’s Failure to Explicitly Address Plaintiff’s Mother’s Statement
Does Not Necessitate Remand
Plaintiff contends that remand is required because the ALJ failed to make specific
reference to the statement submitted by Plaintiff’s mother and the failure was prejudicial
because, according to Plaintiff, the ALJ drew a negative inference “based [on] non compliance
(sic) with medical treatment” (Dkt. No. 19 at 15). The Commissioner argues that the ALJ was
not required to explain what weight, if any, he assigned to the letter, and, in any event, Plaintiff
has failed to show prejudice from the ALJ’s failure to explicitly address the letter because it was
cumulative of Plaintiff’s own testimony. The Commissioner has the better of the arguments.
The ALJ was required to consider all of the evidence in the record. See SSR 06-03p,
2006 WL 2329939, at *4 (Aug. 9, 2006). With respect to evidence from “other sources,” such as
statements from family members, SSR 06-03p provides, in relevant part, that “an adjudicator
generally should . . . ensure that the discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to the follow the adjudicator’s reasoning, when such
opinions may have an effect on the outcome of the case.” Id. An “’ALJ is not required to
discuss every piece of evidence in the record when making his or her decision.’” Bonner v.
Colvin, 153 F. Supp. 3d 465, 476 (D. Mass. 2015) (quoting Nadeau v. Colvin, No. CIV A. 1410160-FDS, 2015 WL 1308916, at *11 (D. Mass. Mar. 24, 2015)); Cox v. Astrue, Civil Action
No. 08-10400-DPW, 2009 WL 189958, at *5 (D. Mass. Jan. 16, 2009) (same; citing cases).
Here, the ALJ represented that he considered the entire record (A.R. at 19). The
transcript of the hearing confirms that the ALJ was aware of the letter from Plaintiff’s mother.
At the outset of the hearing, in a colloquy with counsel, the ALJ noted that there was a letter
from the claimant’s mother that he would need to have translated (id. at 36), and he did so (id. at
613). Plaintiff’s counsel discussed the mother’s evidence in his opening statement (id. at 38),
and there was a further colloquy between counsel and the ALJ about the letter immediately
before the VE testified (id. at 47). In light of the contents of the hearing transcript, there is no
reason to believe that the ALJ failed in his duty to consider all of the record evidence.
Further, Plaintiff’s claim that this evidence was critical fails because the ALJ did not
question Plaintiff’s credibility based on a failure to seek and comply with medical advice. To the
contrary, the records show that Plaintiff has consistently sought treatment for his mental health
impairments, and has generally taken his medications. When he was incarcerated at the Ludlow
Correctional Center, Plaintiff reported that it took a long time to find the right combination of
medications that could manage his symptoms, but the medications he was taking had been
helpful since 2008 (A.R. at 340). What the ALJ found was that Plaintiff had severe mental
health impairments that, his medical records showed, responded well enough to treatment that
Plaintiff did not experience the symptoms and functional limitations that he reported to Ms.
Rivera and Dr. Estes and testified to at the hearing as long as he took his medication. He was
purportedly taking his medication while treating with Ms. Rivera and at the time of the hearing.
Plaintiff’s mother’s statement was generally similar to and cumulative of Plaintiff’s testimony,
and the ALJ’s explanation of his reasons for declining to find Plaintiff credible were clearly
explained. It is apparent from the ALJ’s decision that the mother’s statement would not “have an
effect on the outcome of the case.” SSR 06-03p, 2006 WL 2329939, at *4. It would serve no
purpose to remand this case so that the ALJ could explain that, just as he did not credit Plaintiff’s
testimony about the severity of his symptoms and functional limitations at the time of the
hearing, he would not credit the mother’s description of her son’s condition to the extent it was
inconsistent with the longitudinal medical evidence of record. See Sanchez v. Colvin, 134 F.
Supp. 3d 605, 619 n.9 (D. Mass. 2015) (no reason to remand for reconsideration based on an
ALJ’s failure to explain the weight he assigned to other source evidence when that other source
evidence was cumulative of the claimant’s own testimony) (citing Buckner v. Astrue, 646 F.3d
549, 560 (8th Cir. 2011)).
4. Plaintiff’s Reasons for Changing Providers Was Not Material to
the ALJ’s Credibility Determination
Plaintiff contends that the ALJ “sandbagged” him by inferring that he changed mental
health care providers – from Gandara to Valley Psychiatric Services, Inc. – to improve his
chances of obtaining benefits without giving Plaintiff a chance to explain his reasons for the
change (Dkt. No. 19 at 17-18). The factual premise of Plaintiff’s contention is not borne out by
the ALJ’s decision. The essential underpinning of the ALJ’s credibility determination was not
Plaintiff’s change in providers, which the ALJ referred to as “suspect” only in a footnote (A.R. at
26 n.3). Rather, the ALJ focused on the inconsistencies between, on the one hand, Plaintiff’s
medical records from Gandara and his statements during the forensic mental status examination
at the Ludlow Correctional Center, and, on the other hand, his statements to Ms. Rivera about his
mental health status shortly thereafter as reflected in the records from Valley Psychiatric
Services, Inc. “The law has placed the onus . . . on the ALJ to develop the record where it is
incomplete.” Cox, 2009 WL 189958, at *7 (quoting Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998)). When, as in this case, the record is adequate to resolve a claim, the ALJ is not required
to seek supplementation, and he had no obligation in this case to inquire why Plaintiff changed
mental health care providers. See id.
5. The Failure to Translate Portions of the Plaintiff’s Medical Records
Does not Require Remand
Finally, Plaintiff contends that the case should be remanded because some of Plaintiff’s
medical records were submitted to the SSA in Spanish and were not translated. More
specifically, he points to a portion of a 1999 record from a psychiatric hospitalization in Puerto
Rico, and a 2013 letter from a physician of internal medicine, who treated Plaintiff when he was
between the ages of 10 and 15, and purportedly represented that his behavior had always been
very strange and unusual (Dkt. No. 19 at 3-4). It is obviously preferable that all of the evidence
submitted in support of an application for social security benefits be available for review by the
ALJ hearing the case. At the outset of the hearing, the ALJ acknowledged the need to obtain
translations of exhibits and stated that he would keep the record open and get the exhibits
translated (A.R. at 36-37). Most of the records were, in fact, translated (Dkt. No. 12-1).
In the court’s view, whether remand for translation is required turns again on the question
of when an ALJ is required to seek supplementation of the record. When the existing record is
adequate to resolve the claim, the ALJ is not required to do more. See Cox, 2009 WL 189958, at
*7; cf. Austin v. Barnhart, No. 03-156-B-W., 2004 WL 1896999, at *2 (D. Me. Aug. 25, 2004)
(holding that an ALJ is only required to order a consultative examination when the medical
evidence before the ALJ on a particular impairment is insufficient to support a conclusion on the
question of disability). 12 None of the cases cited by Plaintiff stand for the proposition that a
failure to translate a small portion of the exhibits in the administrative record automatically
requires remand. So far as the court has been able to determine, there are no cases holding that a
failure to complete the translation of all of the exhibits in a case file is a per se basis for remand.
Rather, the cases generally address shortcomings in the record in terms of the materiality of the
missing evidence. See Conner v. Barnhart, 443 F. Supp. 2d 131, 134 (D. Mass. 2006) (case
should be remanded to Commissioner to consider new evidence only when that evidence is
material; evidence is material if the ALJ’s decision might reasonably have been different were it
considered) (citing Evangelista v. Sec. of Health & Human Servs., 826 F.2d 136, 140 (1st Cir.
Here, Plaintiff has not even argued that he was prejudiced by the absence of translations
of these two small portions of the record and the record shows otherwise. The ALJ already had
the essential information contained in these exhibits before him in a different form.
Acknowledging that the records from Plaintiff’s 1999 psychiatric hospitalization were partially
illegible, Plaintiff’s counsel, in his hearing brief, translated an untranslated portion of the 1999
records that supported Plaintiff’s statements that he suffered audio and visual hallucinations that
directed him to cause harm to himself and others, and that he had attempted suicide (A.R. at
279-80). The hearing brief, with the translation, was before the ALJ (id. at 39-40). Further, the
Plaintiff’s apparent claim, made for the first time in his reply memorandum, that the ALJ was
required to order a consultative examination because psychologist J. Litchman, one of the nontestifying, non-examining psychologists, stated that a CE was necessary to accurately diagnose
Plaintiff’s impairment fails because “the decision as to whether or not to utilize a medical expert
is within the ALJ’s discretion and the failure to do so is not per se a basis for reversal.” Bianco
v. Astrue, No. C.A. 09-021S, 2010 WL 2382855, at *10 (D.R.I. Apr. 20, 2010) (citing Hodgkins
v. Barnhart, No. 03-179-P-4, 2004 WL 1896996 (D. Me. Aug. 25, 2004)). Because substantial
evidence in the record supported the ALJ’s ultimate determination, the lack of a consultative
examination does not require reversal. See id.
information from the 1999 hospitalization was largely cumulative. The hearing brief highlighted
an entry in English from a subsequent psychiatric hospitalization in 2007 that included very
similar content (id. at 40). As to the childhood onset of Plaintiff’s mental health problems, the
information purportedly included in the letter from Plaintiff’s childhood doctor, Plaintiff testified
that he always heard voices since he was little (id. at 46), and his mother’s letter substantiated an
early onset of his problems (id. at 613). Where no showing of prejudice is made, reversal and
remand are not required. See Cox, 2009 WL 189958, at *8; see also Conner, 443 F. Supp. 2d at
In summary, there was substantial evidence in the record supporting the ALJ’s
conclusion that notwithstanding Plaintiff’s severe mental health impairments, he suffered
moderate symptoms and was able to function when he took his medication, as he generally did.
In these circumstances, the ALJ’s determination that Plaintiff was not disabled is sufficiently
supported by the record and is entitled to deference. See, e.g., Bianco, 2010 WL 2382855, at
For the reasons stated above, Plaintiff’s motion for an order reversing the
Commissioner’s decision is DENIED, and the Commissioner’s motion to affirm the decision is
GRANTED. Judgment shall enter for the defendant, and the Clerk’s Office is directed to close
the case on the court’s docket.
It is so ordered.
Dated: March 31, 2017
Katherine A. Robertson
KATHERINE A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?