Watkins v. Colvin

Filing 19

Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. Because the ALJ determined Plaintiff's RFC without explaining his treatment of relevant evidence, the court is unable to conclude that his decision is supported by substant ial evidence. Accordingly, as to Plaintiff's objection # 1 as described herein, Plaintiff's Motion for Summary Judgment (Dkt. No. 12) is GRANTED, and Defendant's Motion to Affirm the Commissioner's Decision (Dkt. No. 17) is DENIED, the ALJ's decision is vacated pursuant to sentence four of 42 U.S.C. § 405(g), and the case is Remanded for further proceedings in accordance with this Memorandum and Order. (Finn, Mary)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KARL VICTOR WATKINS,
Plaintiff
v.

NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Defendant

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) Civil Action No. 3:16-cv-30117-KAR
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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. 12 & 17)
ROBERTSON, U.S.M.J.
Before the court is an action for judicial review of a final decision by the Acting
Commissioner of the Social Security Administration ("Commissioner") regarding an individual's
entitlement to Supplemental Security Income ("SSI") pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). Plaintiff Karl Victor Watkins ("Plaintiff") asserts that the Commissioner's decision
denying him such benefits -- memorialized in a March 3, 2015 decision of an administrative law
judge ("ALJ") -- contains legal error and is not supported by substantial evidence. Specifically,
Plaintiff alleges that the ALJ erred by failing to: (1) adopt the 2012 decision of another ALJ who
found Plaintiff disabled; (2) fully adopt the opinions of the state agency examiners and a
consultant when crafting Plaintiff's RFC; and (3) afford a treatment provider's opinion
controlling weight. Plaintiff has moved for judgment on the pleadings (Dkt. No. 12), while the
Commissioner has moved to affirm (Dkt. No. 17).

1

The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c); Fed. R.
Civ. P. 73. For the following reasons, the court will DENY the Commissioner's motion to
affirm, and ALLOW Plaintiff's motion for judgment on the pleadings to the extent it seeks a
remand on a single issue.
I.

PROCEDURAL BACKGROUND

Plaintiff first applied for SSI on July 16, 2010 alleging an onset of disability on May 2,
2008 (Administrative Record "A.R." at 87). On February 24, 2012, after a hearing, ALJ Judith
M. Stolfo (hereinafter "first ALJ") found Plaintiff to be disabled (id. at 21, 79-87). However,
Plaintiff's SSI benefits were suspended because he did not meet the financial eligibility standard
for the SSI program and they were ultimately terminated (A.R. at 21-22 & nn.3 & 4; Dkt. No.
18-1 ¶ 4(f)). See 42 U.S.C. § 1382(a).
Plaintiff submitted a second application for SSI on August 13, 2013, when he was 49
years old, again alleging an onset of disability on May 2, 2008 (id. at 19, 26). In his second SSI
application, Plaintiff alleged that he was disabled due to depression, anxiety, and paranoia (id. at
88). The application was denied initially on January 16, 2014 and upon reconsideration on June
4, 2014 (id. at 19). Following a hearing before a different ALJ (hereinafter "second ALJ" or
"ALJ") on February 17, 2015, the second ALJ issued his decision on March 3, 2015 finding
Plaintiff was not disabled since the application was filed on August 13, 2013 (id. at 19). On
April 28, 2016, the Appeals Council denied review of the ALJ's decision (id. at 1), and this
appeal followed.
II.

FACTUAL BACKGROUND

2

In support of the disabling conditions listed in Plaintiff's application for SSI benefits, he
presented the second ALJ with medical evidence spanning the period from 2010 through 2014. 1
A.

Treatment Providers

Plaintiff was treated by Valley Psychiatric Service, Inc. ("VPS") beginning in March
2010 (id. at 83, 366). On April 17, 2013, Plaintiff's treatment provider Glenroy Bristol
completed a "Brief Psychiatric Rating Scale for Adults" (id. at 350). Plaintiff's anxiety was
"moderately severe," his depression was "moderate," and his conceptual disorganization was
"very mild" (id.). Plaintiff displayed no indication that he suffered from hallucinations, unusual
thought content, bizarre behavior, self-neglect, disorientation, and distractibility (id.).
Plaintiff's therapist, Glenroy Bristol, completed Plaintiff's mental status exam at VPS on
July 1, 2013 (id. at 290). Plaintiff was oriented x 3 (id.). Although Plaintiff reported
experiencing auditory hallucinations "'once in a while,'" they were not "command hallucinations"
and he did not understand what he heard (id.). His behavior, speech, mood/affect, and thought
content were within normal limits (id.). His mood was stable, his thought processes were logical
and rational, he was well-rested, his appetite was good, and he had no current SI/HI (id.). Mr.
Bristol noted that Plaintiff was "pleasant and in good spirits" (id.). According to Plaintiff, his
medications -- Wellbutrin, Risperdal, Cogentin, Trazodone, and Hydroxyzine -- were effective,
but because Trazodone was upsetting his stomach, his dosage was decreased (id.).

1

Although Plaintiff crushed his right hand and lost a portion of his pinky finger while working at
a saw mill in 1994 (A.R. at 43), his challenge to the ALJ's denial of benefits focuses solely on his
alleged mental impairments. Accordingly, the summary of evidence is limited to medical
records relevant to the issues raised by Plaintiff in this appeal.
3

During a VPS session on July 24, 2013, Plaintiff's "mood was euthymic with bright
affect, he denied [SI/HI] intent or plan, [he] did not express or exhibit signs of psychosis, [and
his] thoughts were clear, logical, organized, and reality base[d]" (id. at 287).
Plaintiff terminated service with VPS on August 14, 2013 because he failed to comply
with VPS's attendance policy (id. at 287, 288). The discharge summary noted that Plaintiff "was
medication compliant throughout treatment and was clinically stable when last seen" (id.). He
was diagnosed with schizoaffective disorder and polysubstance dependence (id. at 288). Further,
post-traumatic stress disorder ("PTSD"), intermittent explosive disorder, and antisocial
personality disorder were to be ruled out (id. at 288).
Plaintiff returned to VPS on November 4, 2013 when he reported flashbacks, auditory
and visual hallucinations, and paranoia in social settings (id. at 316, 325). He also complained of
"severe [recent] memory problems" (id. at 316). According to the intake assessment that Mr.
Bristol completed, Plaintiff was not taking medication (id. at 319). His mental status
examination showed that he was oriented x 3 and his appearance, eye contact, speech,
perception, and orientation were within normal limits (id. at 321, 325). He did not report
delusions or hallucinations during the session, but was depressed, restless, and anxious, and
experienced racing thoughts, impaired concentration, and "some" (as opposed to "severe")
impairment of judgment (id. at 321, 325). He also reported difficulty falling or staying asleep
(id. at 323, 325). The intake record also indicated that Plaintiff last drank alcohol about one
month before the assessment and stopped smoking crack cocaine in 2010 (id. at 329). Mr.

4

Bristol diagnosed Plaintiff as having schizoaffective disorder and PTSD and assigned him a
Global Assessment of Functioning ("GAF") score of 56 (id. at 325). 2
Elizabeth Benedict of the Center for Human Development ("CHD") conducted an
Outpatient Adult Comprehensive Assessment of Plaintiff on February 4, 2014 (id. at 298).
Plaintiff complained of anxiety and "mood swings" (id. at 302). Ms. Benedict described Plaintiff
as "friendly and talkative" (id. at 301). He reported sleeping only one to two hours each night
and experiencing difficulty leaving his home due to "panic and anxiety" (id. at 302-03). Ms.
Benedict diagnosed Bipolar I Disorder, most recent episode mixed, severe with psychotic
features and a GAF score of 45 (id. at 303). 3
On May 5, 2014, Aisha Ellis, NP of CHD's Caring Health Center saw Plaintiff for an
office visit to establish primary care, including medication (id. at 310, 312). Plaintiff reported
being "a little off" because he had not taken Risperidone and Trazodone in two weeks (id. at
310). The record of Plaintiff's behavioral assessment indicated that Plaintiff suffered from
insomnia, but was "[n]egative for depression," nervousness, and anxiety (id. at 310). He was

2

The GAF "scale is used to rate a patient's 'overall psychological functioning.'" Lopez-Lopez v.
Colvin, 138 F. Supp. 3d 96, 98 n.4 (D. Mass.), on reconsideration in part, 144 F. Supp. 3d 260
(D. Mass. 2015) (quoting American Psychiatric Institute, Diagnostic & Statistical Manual of
Mental Disorders ("DSM–IV") 32 (4th ed. 1994)). "The scale goes from '1,' indicating that the
patient has a 'persistent danger of severely hurting self or others,' to '100,' indicating 'superior
functioning.'" Id. (quoting DSM-IV at 32). 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.
3

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)." DSM-IV at 34.
5

oriented x 3 and his mood and affect, behavior, judgment, and thought content were normal (id.
at 311). He was prescribed Risperidone and Trazodone (id. at 312).
On May 14, 2014, Kimberly Gage, APRN, conducted Plaintiff's medication evaluation at
CHD (id. at 390). Plaintiff complained of sleep disturbance, hearing voices that "sound like 'a lot
of scrambling,'" but not commands, and depression (id. at 390, 392, 393). He was euthymic,
oriented x 3, and his recent and remote memory and his attention/concentration were fair (id. at
392, 393). His speech was within normal limits and he displayed no problems with his receptive
or expressive language (id. at 392). His thinking was "somewhat concrete but clear and
organized," and his associations were intact (id.). Plaintiff reported experiencing racing thoughts
during the two weeks he was not taking Risperidone (Risperdal), but the racing thoughts
decreased once he resumed taking Risperidone (id. at 392, 393). Because Plaintiff was unaware
that Risperidone was also prescribed for mood symptoms, he was taking it once daily instead of
twice daily as prescribed (id. at 392). Plaintiff was diagnosed with Bipolar I Disorder, most
recent episode mixed, severe with psychotic features, cognitive disorder NOS, and learning
disorder NOS, and was again assigned a GAF score of 45 (id. at 392). APRN Gage directed him
to continue with his medication with the adjustment to the Risperidone dose (id. at 393).
APRN Gage saw Plaintiff at CHD again on July 8, 2014 for a medication follow-up (id.
at 385). Plaintiff was oriented x 3, was "pleasant and in good spirits," his thinking was concrete,
clear, and organized, his mood was stable, his memory and attention/concentration were fair, and
his judgment and insight were "fair to poor depending on context" (id. at 386-87). His speech,
sleep, and appetite were within normal limits (id. at 386). He reported occasionally hearing his
wife calling his name and was drinking about four beers a day (id. at 386-87). His diagnoses and
GAF score remained unchanged (id. at 387).

6

On September 11, 2014, Peter Landstrom, RNP, of CHD assessed Plaintiff and reviewed
his medications (id. at 380, 384). Plaintiff reported that he was feeling well and his medication
was effective, but he continued to hear unintelligible voices (id. at 380). He reported that he
occasionally smoked marijuana and had not drunk any alcohol in one month (id.). Plaintiff also
reported that he liked to watch "old westerns," and did not leave home much, but took daily
walks with his wife (id. at 380). The records show that Plaintiff was euthymic and was oriented
to all spheres (id. at 381-82). His speech and thought processes were normal, his memory was
intact, his attention/concentration were good, and his judgment and insight were fair (id. at 381).
His diagnoses and GAF score remained the same as on May 14, 2014, and RNP Landstrom
recommended that Plaintiff continue with his current medication regimen and his therapy with
"Marcus" (id. at 382). Plaintiff resisted Mr. Landstrom's suggestion that he increase his activities
(id.).
Aisha Ellis, NP, examined Plaintiff at the Caring Health Center on October 6, 2014 (id. at
398). He was alert, oriented x 3, and reported feeling well and continuing to maintain sobriety
(id.). His mood, affect, judgment, and thought content were normal (id.).
Plaintiff visited NP Ellis again on November 10, 2014 (id. at 396). He told her that he
drank ten to fifteen cups of coffee a day, but did not drink water, and had experienced dizziness
and sweating on one occasion when he ate an entire cheesecake (id.). He was oriented x 3, and
his mood, affect, and behavior were normal (id. at 396-97). He was diagnosed with prediabetes
and was prescribed metformin (id. at 397).
B.

Marcus Foster's Opinion

On May 2, 2014, Marcus Foster completed a Mental Impairment Questionnaire, some of
which is illegible (id. at 305). Foster had been treating Plaintiff in one hour weekly therapy

7

sessions since February 28, 2014 (id.). Plaintiff's diagnosis was Bipolar I with a GAF score of
45 (id.). Plaintiff was being effectively treated with these psychotropic medications: Bupropion;
Hydroxyzine; Risperidone; Sertraline HCL; and Trazodone (id.). The only side effect was "sleep
disturbance leading to fatigue" (id.). The legible prognosis was "[c]hronic, severe mental illness
requiring high level of outpatient care indefinitely" (id.).
Foster checked the boxes indicating the presence of the following signs and symptoms:
pervasive loss of interest in all activities; decreased energy; feelings of guilt or worthlessness;
generalized persistent anxiety; mood disturbance; difficulty thinking or concentrating; persistent
nonorganic disturbance of vision, speech, hearing, use of a limb, movement and its control, or
sensation; recurrent obsessions or compulsions which are a source of marked distress; emotional
withdrawal or isolation; bipolar syndrome with a history of episodic periods manifested by the
full symptomatic picture of both manic and depressive syndromes; hallucinations or delusions;
vigilance and scanning; easy distractibility; memory impairment; sleep disturbance; oddities of
thought, perception, speech, or behavior; decreased need for sleep; and recurrent severe panic
attacks (id. at 306). Foster further indicated that Plaintiff did not have a low IQ or reduced
intellectual functioning (id. at 307).
According to the boxes Foster checked on the form, Plaintiff had "marked" restrictions on
his daily living activities and in maintaining social functioning and "extreme" difficulty in
maintaining concentration, persistence, or pace (id.). In addition, Foster checked the box
indicating Plaintiff had a "[m]edically documented history of chronic organic mental,
schizophrenic, etc., or affective disorder of at least 2 years' duration that has caused more than a
minimal limitation of ability to do any basic work activity, with symptoms or signs currently
attenuated by medication or psychosocial support, and one of the following . . ." but Foster did

8

not check any of the three choices that followed the statement (id. at 307-08). Mr. Foster
anticipated that Plaintiff would be absent from work for more than four days per month (id. at
308). Mr. Foster further stated that Plaintiff could manage benefits (id.).
C.

Consultative Examination and State Agency Consultants
1.

Victor Carbone, Ph.D.

Victor Carbone, Ph.D., examined Plaintiff on January 14, 2014 (id. at 292). Plaintiff
reported being paranoid, anxious, depressed, and hypervigilant, and suffering from flashbacks of
the events that occurred while he was incarcerated for seventeen years in Alabama (id. at 292,
293, 295). Plaintiff told Dr. Carbone that he experienced racing thoughts and heard mumbling
voices in his head (id. at 293, 295). He also indicated difficulties with concentration and
memory (id. at 295, 296). During the mental status exam, Plaintiff was oriented x 3, but was
unable to complete a Mini Mental Status Examination because he reported that he could not spell
and his "academics" were weak (id. at 295). Dr. Carbone noted that Plaintiff's "[i]nsight into his
difficulties were quite limited" (id. at 296).
Plaintiff initially denied any past substance abuse (id. at 293). After Dr. Carbone
indicated that his history suggested drug use, Plaintiff acknowledged that he began using powder
cocaine when he was 22 or 23, used crack cocaine until he was incarcerated, used again after he
was released, and stopped using in 2011 (id.). He smoked two packs of cigarettes a day (id. at
294).
Dr. Carbone noted that Plaintiff understood simple directions, but had "more difficulty
with complex concepts and [got] overwhelmed very easy with much tearfulness during the
evaluation" (id. at 296). According to Dr. Carbone, Plaintiff's anxiety "would certainly impact
his ability to focus . . ." (id.). Dr. Carbone diagnosed depressive disorder NOS and likely

9

borderline intellectual functioning, bipolar disorder NOS was to be ruled out, and PTSD and
cocaine dependence were indicated by the history Plaintiff supplied (id.). Dr. Carbone assigned
a GAF score of 52 (id.).
2.

Joseph Whitehorn, Ph.D.

Joseph Whitehorn, Ph.D., a Disability Determination Services ("DDS") consultant,
reviewed Plaintiff's treatment records on January 16, 2014 (id. at 98). He determined that
Plaintiff had moderate restrictions on daily living activities, moderate difficulties in maintaining
social functioning and concentration, persistence, and pace, and had experienced no repeated
episodes of decompensation (id. at 93). Dr. Whitehorn reported that Plaintiff's memory and
understanding were adequate for simple tasks (id. at 94). He further opined that Plaintiff was
able to "sustain pace and focus on simple tasks for two hour periods during a work day," "adhere
to social norms in a work setting," and "handle changes in simple work routines" (id. at 95-96).
In making these determinations, Dr. Whitehorn principally relied on Plaintiff's mental
status exams that were conducted on July 1 and 24, 2013 and indicated that "reports of serious
[symptoms] given at [the] current [consultative examination] are somewhat doubtful" (id. at 96).
Dr. Whitehorn also noted the discrepancy between Plaintiff's function report that said he was too
nervous to go out alone and his treatment providers' and Dr. Carbone's reports that fail to
mention this impairment (id. at 96). Dr. Whitehorn indicated that "details or data" to support
Plaintiff's diagnoses of schizoaffective disorder and intermediate explosive disorder were absent
from his treatment records (id. at 96). Dr. Whitehorn diagnosed: depressive disorder NOS;
PTSD; probable borderline intellectual function; and substance addiction disorder, in remission
(id. at 96). Dr. Whitehorn opined that Plaintiff was not disabled (id. at 98).
3.

Lawrence Langer, Ph.D.

10

Lawrence Langer, Ph.D., conducted a state agency assessment on June 4, 2014 (id. at
109, 111). Dr. Langer's opinions mirrored Dr. Whitehorn's determinations of Plaintiff's degree
of difficulty with daily living activities, maintaining social functioning, and maintaining
concentration, persistence, or pace, and of Plaintiff's limitations on memory, concentration and
persistence, social interactions, and ability to adapt (id. at 106, 108-09). Like Dr. Whitehorn, Dr.
Langer opined that Plaintiff was not disabled (id. at 111).
D.

Function Reports
1.

Lynn McGovern Watkins

Plaintiff's former wife, Lynn McGovern Watkins, completed a third party function report
form on August 18, 2013 (id. at 227). She had known Plaintiff for eight to ten years and
indicated that he spent his days drinking coffee, taking medications, watching TV, pacing, and
sitting on the porch during nice weather (id.). She observed that his legs shook, his sleep was
disrupted, and he was "afraid to leave [the] house" (id. at 227, 228, 230). She also observed him
opening doors two or three times before he exited (id. at 233). He had no problems with
personal care, but sometimes needed reminders to shower and to brush his teeth, although he did
not require reminders to take his medications (id. at 228-29). He was able to prepare his meals
each day, perform household chores if reminded, and handled his finances (id. at 229, 230).
Although he shopped once each month, he "rushe[d]" out of stores because he "hate[d] crowds"
(id. at 230). He socialized with "one person at a time" twice a week, but had no problems getting
along with others (id. at 231, 232).
Mrs. Watkins noted that Plaintiff had difficulty completing tasks, concentrating,
remembering and following written instructions, and getting along with others, although he could

11

follow spoken instructions and get along with authority figures unless they made him nervous
(id. at 232, 233). He was not able to handle stress or changes in routine (id. at 233).
2.

Plaintiff

Plaintiff completed a function report on May 12, 2014 (id. at 258). He noted that his
daily activities included pacing, looking out the door, sitting on the porch sometimes, and
watching TV (id. at 251, 255). He was able to prepare his own meals every day and perform
household chores with help and encouragement (id. at 253). He went out every week, but was
nervous, and rode in a car and used public transportation (id. at 254). His anxiety prevented him
from driving (id.). He stated that he had no problems with personal care and did not require
reminders to take care of personal needs and grooming, but needed reminders to take his
medication (id. at 252, 253). Although he visited his former wife and her family at least three
times per week, he sometimes got anxious and paranoid when he was around people (id. at 255,
256). At times, he rocked or shook when he was anxious (id. at 257).
Plaintiff reported limits on his ability to walk, talk, remember, complete tasks,
concentrate, comprehend, follow instructions, and get along with others (id. at 251, 256). His
ability to follow spoken instructions was "OK," but his ability to handle stress or adapt to
changes in routine was limited (id. at 257).
E.

The Hearing before the Second ALJ

Plaintiff and Vocational Expert ("VE") Elizabeth Laflamme testified at the February 17,
2015 hearing before the second ALJ (id. at 33). In describing his background, Plaintiff testified
that he was 51 years old, was not in special education classes in school, and had completed the
tenth grade by "cheat[ing] off people" (id. at 39, 51, 57). He had worked as a laborer and had

12

spent approximately seventeen years in an Alabama prison after being convicted of burglary (id.
at 40-42).
Plaintiff told the ALJ that he was not working and had not looked for work because he
had difficulty concentrating and remembering, he heard muffled voices, he saw objects "[o]ut of
the corner of [his] eyes," and he was paranoid (id. at 41-43, 49, 51, 57, 59, 60, 61, 62, 63, 65).
Plaintiff further described his longstanding anxiety around strangers and crowds, although he
procured narcotics from people he heard were selling and "people who [stood] by the store"
selling drugs (id. at 46, 48-51, 56, 57, 65). Plaintiff testified that his medications made him
"calmer" (id. at 59, 60). However, his treatment provider was going to increase the dosage of
two medications because, recently, some symptoms had returned (id. at 60).
The ALJ directed VE Laflamme to assume Plaintiff was unable to perform his past job as
a laborer, which required the ability to work without close supervision, and posed the following
hypothetical question, asking whether the described person could perform any work:
[A]ssume . . . a person of [Plaintiff's] age . . . who is capable of light work and could have
occasional use of his right upper extremity. The job would have to be one in which he
remembered and carr[ied] out no more than simple instructions and [had] no more than
occasional contact with others.
(id. at 66, 67). The VE described two jobs that were available in the national and regional
economies for the hypothetical individual: a price marker; and a laundry classifier, which was an
unskilled job (id. at 68). These jobs, however, would not be available for a person who was off
task for at least twenty-five percent of the work day or who was absent more than four days per
month (id. at 68-69).
F.

The Second ALJ's Decision

In order to qualify for SSI, a claimant must demonstrate that he was "disabled" and of
"limited means," as those terms are defined by the Social Security Act (the "Act"). Splude v.
13

Apfel, 165 F.3d 85, 87 (1st Cir. 1999). See 42 U.S.C. §§ 1381a, 1382. Here, the only question is
"whether the ALJ had substantial evidence with which to conclude that Plaintiff did not suffer
from a disability." Bitsacos v. Barnhart, 353 F. Supp. 2d 161, 165-66 (D. Mass. 2005).
The Act defines disability, in part, as the "inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). An individual is considered disabled
under the Act
only if his physical or mental impairment or impairments are of such severity that he is
not only unable to do his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful work which exists in the
national economy, regardless of whether such work exists in the immediate area in which
he lives, or whether a specific job vacancy exists for him, or whether he would be hired if
he applied for work.
42 U.S.C. §1382c(a)(3)(B). See generally Bowen v. Yuckert, 482 U.S. 137, 146–49 (1987).
In determining whether Plaintiff was disabled, the ALJ conducted the five-part analysis
required by the regulations. See 20 C.F.R. § 416.920(a); see also Goodermote v. Sec'y of Health
& Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982) (describing the five-step process). The claimant
has the burden of proof through step four of the analysis. See Goodermote, 690 F.2d at 7. At
step five, the Commissioner has the burden of showing the existence of jobs in the national
economy that the claimant can perform notwithstanding impairment(s). See id. If a 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).
At the first step, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since the application date of August 13, 2013 (A.R. at 21). See 20 C.F.R. § 416.971 et
seq. At step two, the ALJ found that Plaintiff was severely impaired due to "depression,
14

schizoaffective/bipolar disorder, [PTSD], flexion deformity of second, third and fourth fingers of
right hand, status post gunshot wound to back, [and] substance abuse" (A.R. at 21). See 20
C.F.R. § 416.920(c). For purposes of step three, Plaintiff's impairments, either alone 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 (A.R. at 25). See 20 C.F.R. §§ 416.920(d), 416.925,
416.926. He considered the so-called "paragraph B" criteria applicable to mental health
impairments, and found that Plaintiff had a mild difficulty in activities of daily living, and
moderate difficulties in social functioning and concentration, persistence, or pace (A.R. at 25).
Finally, he found no episodes of decompensation of extended duration (id.).
Before proceeding to steps four and five, the ALJ assessed Plaintiff's RFC for use at step
four to determine whether he could do past relevant work and, if the analysis continued to step
five, to determine if he could do other work. See 20 C.F.R. § 416.920(e). "The 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 Regulation ("SSR") 96-8p, 1996 WL 374187, at *2 (July 2,
1996). Put another way, "[a]n individual's RFC is defined as 'the most you can still do despite
your limitations.'" Dias v. Colvin, 52 F. Supp. 3d 270, 278 (D. Mass. 2014) (quoting 20 C.F.R. §
416.945(a)(1)).

15

The ALJ determined that Plaintiff had the RFC to perform light work, 4 with the
following limitations: "he could remember and carry out only simple instructions, have no more
than occasional use of his right hand, and have only occasional contact with others" (A.R. at 26).
At step four, the ALJ found that Plaintiff was unable to perform his past relevant work
(id. at 26). See 20 C.F.R. § 416.965. However, considering Plaintiff's age, education, work
experience, and RFC, Plaintiff could perform the following jobs that existed in the national and
regional economies: price marker; and laundry classifier (A.R. at 27). See 20 C.F.R. §§
416.969, 416.969a. Consequently, the ALJ concluded that Plaintiff was not disabled from
August 13, 2013 through March 3, 2015, the date of the decision under review (A.R. at 27-28).
See 42 U.S.C. § 416.920(g).
III.

ANALYSIS

A.

Standard of Review

4

The Social Security Administration ("SSA") defines light work as work that "involves lifting no
more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of performing a full
or wide range of light work, [a claimant] must have the ability to do substantially all of these
activities. If someone can do light work, [the SSA] determine[s] that he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time." 20 C.F.R. § 404.1567(b).
Sedentary work "involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a).

.
16

The District Court may enter a judgment affirming, modifying, or reversing the final
decision of the Commissioner, with or without remanding for a rehearing. See 42 U.S.C. §§
405(g), 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. See id. (citing
Nguyen v. Chater, 172 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)).
"Complainants face a difficult battle in challenging the Commissioner's determination because,
under the substantial evidence standard, the [c]ourt must uphold the Commissioner's
determination, 'even if the record arguably could justify a different conclusion, so long as it is
supported by substantial evidence.'" Amaral v. Comm'r of Soc. Sec., 797 F. Supp. 2d 154, 159
(D. Mass. 2010) (quoting Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3
(1st Cir. 1987)). 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. See Irlanda Ortiz, 955 F.2d at 769.
That said, the Commissioner may not ignore evidence, misapply the law, or judge matters
entrusted to experts. See Nguyen, 172 F.3d at 35.
B.

Plaintiff's Objections

Plaintiff alleges that the ALJ made three errors by denying SSI: (1) he failed to explain
the inconsistencies between the DDS examiners' and Dr. Carbone's opinions and Plaintiff's RFC;

17

(2) he failed to adopt the first ALJ's decision in accordance with the principles of res judicata and
collateral estoppel; and (3) he failed to give Marcus Foster's opinion controlling weight (Dkt.
Nos. 12 & 13). Each of Plaintiff's objections will be discussed in turn.
1.

The ALJ's failure to explain omissions of mental limitations from the RFC
requires remand.

In pertinent part, the ALJ's RFC limited Plaintiff to performing light work, with the
additional limitations of remembering and carrying out only simple instructions and having only
occasional contact with others (A.R. at 26, 67). In making the RFC determination, the ALJ
considered the opinions of the DDS consultants and Dr. Carbone (id. at 24-25). Plaintiff seeks
remand due to the ALJ's alleged failure to explain the variance between the mental RFC that he
adopted and the DDS consultants' assessments of Plaintiff's mental RFC and Dr. Carbone's
opinion of his mental impairments (Dkt. No. 13 at 10-13). Because the ALJ failed to incorporate
into the RFC all of Plaintiff's mental limitations identified by the DDS consultants and Dr.
Carbone and failed to explain the basis for the omissions, remand is warranted.
a.

DDS Consultants' RFC Assessments

The DDS consultants, Dr. Langer and Dr. Whitehorn, were "state agency psychological
consultants." See SSR 96-6p, 1996 WL 374180, at *1 (July 2, 1996). Dr. Langer's June 2014
mental RFC assessment mirrored Dr. Whitehorn's January 2014 assessment (A.R. at 94-96, 10709). The DDS consultants found Plaintiff moderately limited in: (1) his ability to understand
and remember detailed instructions; (2) his ability to carry out detailed instructions; (3) his
ability to maintain attention and concentration for extended periods; (4) his ability to complete a
normal workday and workweek without interruptions from psychologically based symptoms and
to perform at a consistent pace without an unreasonable number and length of rest periods; (5)
his ability to interact appropriately with the general public; (6) his ability to get along with
18

coworkers and peers without distracting them or exhibiting behavioral extremes; and (7) his
ability to respond appropriately to changes in the work setting (id. at 94-96, 108-09). Their
narrative mental RFC assessments stated that Plaintiff was able to: remember and understand
simple tasks; sustain pace and focus on simple tasks for two hour periods during a work day;
generally adhere to social norms in a work setting; and handle changes in simple work routines
(id.). The ALJ afforded the DDS consultants' mental RFC assessments "moderate weight"
because they did not examine Plaintiff (id. at 25). See Darsch v. Astrue, C.A. No. 10-cv-30102MAP, 2011 WL 1044862, at * (D. Mass. Mar. 18, 2011) (proper not to give great weight to the
opinion of the state agency physician who did not examine plaintiff);
b.

Dr. Carbone's Consultative Examination

Although Dr. Carbone examined Plaintiff, his January 14, 2014 evaluation did not
include his opinion on Plaintiff's functional limitations in specific areas. However, he reported
that: (1) Plaintiff appeared to understand simple concepts, but had more difficulty with complex
concepts and got "overwhelmed very easily with much tearfulness during the evaluation;" and
(2) Plaintiff's anxiety would impact his ability to focus (A.R. at 296). Dr. Carbone's definitive
diagnosis was depressive disorder NOS and PTSD "by history" (id.). In addition, he noted that
borderline intellectual functioning was "likely" (id.). Dr. Carbone assessed Plaintiff's GAF score
as 52, which denotes "moderate limitations" in occupational functioning (id.). Nadeau v. Colvin,
Civil Action No. 14-10160-FDS, 2015 WL 1308916, at *12 (D. Mass. Mar. 24, 2015). See
Morey v. Colvin, C.A. No. 14-433M, 2015 WL 9855873, at *14 (D.R.I. Oct. 5, 2015), report and
recommendation adopted, C.A. No. 14-433-M-PSA, 2016 WL 224104 (D.R.I. Jan. 19, 2016)
("[A]djudicators may continue to receive and consider GAF scores as 'opinion evidence,' despite
the rejection of the use of GAF by DSM–5."). Although the ALJ found that Dr. Carbone was

19

"well-trained in the field on which he opined," the ALJ afforded Dr. Carbone's opinion
"moderate weight" based on his single examination of Plaintiff (A.R. at 24). See 20 C.F.R. §
404.1527(c)(2)(i), (ii) (length of the treatment relationship, frequency of examination, and nature
and extent of treatment relationship are factors considered in assigning weight to medical
opinions). "Moderate" weight was the highest weight the ALJ assigned to any of the record
opinions (A.R. at 24-25).
c.

The ALJ's RFC.

The ALJ is responsible for determining a claimant's RFC, see 20 C.F.R. § 404.1546, and
is required to consider all of the relevant record evidence when making that assessment. See
SSR 96-9p, 1996 WL 374184, at *5 (July 2, 1996). "In assessing RFC, the adjudicator must
consider limitations and restrictions imposed by all of an individual's [mental] impairments, even
those that are not 'severe.'" Id. "While a 'not severe' impairment[] standing alone may not
significantly limit an individual's ability to do basic work activities, it may – when considered
with limitations or restrictions due to other impairments – be critical to the outcome of a claim."
Id.
"[T]he ALJ must specify the evidentiary basis for his RFC determination." Canfield v.
Apfel, No. Civ. 00-267-B, 2001 WL 531539, at *5 (D.N.H. Apr. 19, 2001). See White v. Sec'y of
Health and Human Servs., 910 F.2d 64, 65 (2d Cir. 1990) (noting that the failure to specify a
basis for the RFC determination is a sufficient reason to vacate a decision of the Commissioner);
SSR 96–8p, 1996 WL 374184, at *7. "In determining a claimant's RFC, an administrative law
judge is not free to substitute [his] judgment for that of medical or psychological experts and/or
to assess RFC on the basis of raw medical evidence." Dubriel v. Astrue, Civil No. 08-406-B-W,
2009 WL 1938986, at *2 (D. Me. July 6, 2009), report and recommendation adopted, Civil No.

20

08-406-B-W, 2009 WL 2242393 (D. Me. July 24, 2009). See, e.g., Nguyen, 172 F.3d at 35
("The ALJ's findings of fact are conclusive when supported by substantial evidence, but are not
conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted
to experts.") (citation omitted). The ALJ must consider opinions when crafting the RFC and
must explain the weight afforded to them. See SSR 96–8p, 1996 WL 374184, at *9 (an
administrative law judge can reject a treating-source opinion as to RFC but "must explain why
the opinion was not adopted"); SSR 96–6p, 1996 WL 374180, at *1 ("Findings of fact made by
State agency medical and psychological consultants and other program physicians and
psychologists regarding the nature and severity of an individual's impairment(s) must be treated
as expert opinion evidence of nonexamining sources at the administrative law judge and Appeals
Council levels of administrative review. . . . Administrative law judges and the Appeals Council
may not ignore these opinions and must explain the weight given to these opinions in their
decisions.").
The ALJ's RFC in the instant case limited Plaintiff to remembering and carrying out only
simple instructions (A.R. at 26). This restriction is supported by the DDS consultants'
identification of Plaintiff's moderate limitations in these areas and Dr. Carbone's observation that
Plaintiff "appeared to understand simple directions" (id. at 94, 108, 296).
The RFC also restricted Plaintiff to having "occasional contact with others" (id. at 26).
This restriction reflected the DDS consultants' opinions that Plaintiff had moderate limitations in
his ability to interact appropriately with the general public and "to get along with coworkers or
peers without distracting them or exhibiting behavioral extremes," but "could now adhere to
social norms in a work setting" (id. at 95, 109). Dr. Carbone noted that, at the time of the

21

examination, Plaintiff was living with his stepdaughter, with whom he had a good relationship,
and her four children (id. at 295).
d.

The ALJ's Failure to Address Other Identified Limitations

Plaintiff contends that although the ALJ gave moderate weight to the opinions of the
DDS consultants and Dr. Carbone and accepted some of the limitations they identified, he erred
by excluding from his RFC, without explanation, identified limitations in Plaintiff's ability to
maintain concentration, persistence, or pace and to adapt to changes in the work setting. As to
the first unaddressed limitation, the DDS consultants' narrative indicated that Plaintiff was able
to "sustain pace and focus on simple tasks for two hour periods during the workday" while Dr.
Carbone observed that Plaintiff got "overwhelmed very easily" and that his anxiety would
"certainly impact his ability to focus" (A.R. at 95, 109, 296). In assessing the "paragraph B"
criteria at step two of the sequential evaluation process, the ALJ determined that Plaintiff had
moderate difficulties maintaining concentration, persistence, or pace (id. at 25). When
formulating Plaintiff's RFC, the ALJ indicated that the RFC "reflects the degree of limitation [he]
. . . found in the 'paragraph B' mental function analysis" (id. at 26). 5 Yet the RFC omits a
limitation on concentration, persistence, or pace and offers no explanation as to the apparent

5

"[T]he limitations identified in the 'paragraph B' and 'paragraph C' criteria are not an RFC
assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the
sequential evaluation process. The mental RFC assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by itemizing various functions
contained in the broad categories found in paragraphs B and C of the adult mental disorders
listings in 12.00 of the Listing of Impairments, and summarized on the [Psychiatric Review
Technique Form]." SSR 96-8p, 1996 WL 374184, at *4. "It is the more detailed assessment
prepared . . . for purposes of an RFC assessment which is relevant to the determination of
whether the ALJ's RFC findings are supported by substantial evidence." Warzeka v. Colvin,
Case No. 15-1118-SAC, 2016 WL 3902751, at *2 n.1 (D. Kan. July 19, 2016).
22

variance between the opinion evidence and the RFC. 6 Further, the ALJ failed to discuss the
apparent discrepancy between the DDS consultants' opinions that Plaintiff "can handle changes
in simple work routines," Dr. Carbone's assessment that Plaintiff was easily "overwhelmed," and
the RFC, which made no mention of this limitation (id. at 26, 96, 109, 296).
The ALJ may have had reasons for accepting certain limitations while rejecting others.
However, he was required to "explain why he rejected some limitations contained in a RFC
assessment from a medical source while appearing to adopt other limitations contained in the
assessment." Warzeka v. Colvin, Case No. 15-1118-SAC, 2016 WL 3902751, at *4 (D. Kan.
July 19, 2016). See SSR 96–8p, 1996 WL 374184, at *7 ("The RFC assessment must always
consider and address medical source opinions. If the RFC assessment conflicts with an opinion
from a medical source, the adjudicator must explain why the opinion was not adopted."); SSR
96-9p, 1996 WL 374184, at *7 ("The RFC assessment must include a discussion of why reported
symptom-related functional limitations and restrictions can or cannot reasonably be accepted as
consistent with the medical and other evidence."). The ALJ's cursory explanations for affording
the DDS consultants' and Dr. Carbone's opinions moderate weight does not adequately explain
the basis for omitting some of the impairments that they identified and the court is not entitled to
speculate as to the reasons for the ALJ's apparent rejection of portions of the experts' opinions
when he crafted Plaintiff's RFC. His failure to offer an explanation constitutes error warranting
remand. See Dube v. Astrue, 781 F.Supp.2d 27, 34–36 (D.N.H. 2011) (ALJ's decision reversed
for failure to discuss findings by state agency consultant that contradicted ALJ's conclusion);

6

Although Plaintiff testified that he could not work because he was unable to "'stay focused'"
and the ALJ did not find him "entirely credible" (A.R. at 24, 26), "[a] negative credibility
assessment, standing alone, is not a proper basis for an RFC finding." Dubriel v. Astrue, Civil
No. 08-406-B-W, 2009 WL 1938986, at *3 n.2 (D. Me. July 6, 2009).
23

Crosby v. Heckler, 638 F. Supp. 383, 385–86 (D. Mass. 1985) ("The ALJ cannot reject evidence
for no reason, or for the wrong reason, and must explain the basis for his findings. Failure to
provide an adequate basis for the reviewing court to determine whether the administrative
decision is based on substantial evidence requires a remand to the ALJ for further explanation.").
The Commissioner's contrary arguments are unpersuasive. Her contention -- that "the
ALJ's RFC is consistent with the RFC of the state agency experts" -- is contradicted by the DDS
consultants' opinions that Plaintiff was moderately limited in maintaining concentration,
persistence, or pace and in adapting to changes in a simple work routine, which are absent from
the RFC (Dkt. No. 18 at 10). Likewise, her contention that "Dr. Carbone's observations that the
Plaintiff might have difficulty with focus and be easily overwhelmed does not mean he did not
think Plaintiff could work" misses the point. The ALJ did not incorporate into the RFC the
limitations Dr. Carbone identified and failed to explain his reasons for rejecting those
limitations. 7
Remand is necessary for reconsideration of the RFC in view of the DDS consultants' and
Dr. Carbone's opinions regarding Plaintiff's limitations in concentration, persistence, or pace and
ability to adapt to workplace changes, and the ALJ's step three findings regarding the severity of
Plaintiff's mental impairments. The ALJ's findings must explain the discrepancies between the
opinions, his step three findings, and the RFC.
Despite the remand order, the court shall address the additional issues raised by Plaintiff.
2.

The second ALJ was not required to adopt the first ALJ's disability
determination.

7

The Commissioner has not argued harmless error with regard to Plaintiff's contention and,
therefore, has waived this argument, which, in any event, would be unpersuasive. See Johnson v.
Comm'r of Soc. Sec., No. 2:14-cv-306, 2015 WL 686298, at *8 (S.D. Ohio Feb. 18, 2015).
24

Plaintiff argues that, as a matter of law, the first ALJ's RFC determination was binding on
the second ALJ based on the principles of res judicata (Dkt. No. 13 at 8-9). The Commissioner
counters that the second ALJ correctly declined to adopt the first ALJ's decision because: (1) the
SSI benefits that the first ALJ awarded were terminated; and (2) the record that the second ALJ
considered showed improvement in Plaintiff's condition after ALJ Stolfo's decision. The
Commissioner's arguments are persuasive.
Plaintiff first applied for SSI benefits on July 16, 2010 alleging an onset of disability on
May 2, 2008 (A.R. at 87). He received a favorable decision from ALJ Stolfo on February 24,
2012 (id. at 87). In reaching her decision, ALJ Stolfo reviewed Plaintiff's records from April
2010 through January 2012 (id. at 83-85). At step two of the sequential evaluation process, she
found that Plaintiff suffered from the severe impairments of "schizoaffective disorder (bipolar
type), polysubstance dependence, intermittent explosive disorder, [PTSD and] right hand pain
status post-surgery," but that none of these impairments met or were medically equal to the
severity of a listed impairment at step three (id. at 81). Based upon Plaintiff's treatment
providers' records and ALJ Stolfo's credibility assessment of Plaintiff's subjective complaints,
she determined that Plaintiff had the following RFC:
Plaintiff [is able to] perform a full range of work at all exertional levels but with the
following nonexertional limitations: The [Plaintiff] would be limited to occasional
handling and fingering with the right hand. The [Plaintiff] would be limited to unskilled
with simple, one and two step tasks. The [Plaintiff] could be limited to simple, routine,
repetitive tasks. The [Plaintiff] would be limited to low stress defined as no decision
making required. The [Plaintiff] would be limited to low stress defined as no changes in
the work setting. The [Plaintiff] could have no judgment required on the job and no
production rate pace work but rather goal-oriented work. The [Plaintiff] would need
close supervision, as defined as a supervisor checking his work five times per day. The
[Plaintiff] could not interact with the public. The [Plaintiff] would be limited to
occasional interaction with coworkers. The [Plaintiff] would be limited to dealing with
things rather than people.

25

(A.R. at 81-82 & n.1). Because Plaintiff could not perform his past relevant work and because
no jobs existed in the national and regional economies for a person with Plaintiff's age,
education, work experience, and RFC, ALJ Stolfo concluded that Plaintiff had been disabled
since May 2, 2008 and awarded benefits based on Plaintiff's application date of July 2010 (id. at
86-87). Benefits became payable in August 2010. See 20 C.F.R. § 416.335.
The parties agreed to supplement the record with the history of the termination of the
benefits the first ALJ awarded to Plaintiff and with the SSA Program Operations Manual System
(POMS) DI 11011.0001, which discusses collateral estoppel (Dkt. No. 18 at 2 n.3; 18-1; 18-2).
After ALJ Stolfo issued her decision, the SSA's field office's review of "the nondisability
requirements for the[] payments" revealed that Plaintiff was married on August 6, 2011 and that
his spouse was receiving Social Security benefits (Dkt. No. 18-1 ¶ 4(b)(c); A.R. at 87).
Plaintiff's spouse's Social Security benefits were considered in determining that Plaintiff did not
meet the financial eligibility criteria for SSI from the date of his marriage in August 2011 (id. at
¶ 4(c)). Consequently, Plaintiff was deemed ineligible for SSI benefits beginning in September
2011 and his benefits were suspended as of that date (id. at ¶ 4(b), (d), (e)). See 20 C.F.R. §
416.1323. In September 2012, Plaintiff's record was automatically terminated because his
benefit payments had been suspended for twelve consecutive calendar months (id. at ¶ 4(f)). See
20 C.F.R. § 416.1335 ("We will terminate your eligibility for benefits following 12 consecutive
months of benefit suspension for any reason beginning with the first month you were no longer
eligible for regular SSI cash benefits . . . ."). On August 13, 2013, Plaintiff submitted the
application under consideration here (A.R. at 19).
Addressing the application of collateral estoppel to an ALJ's determination, POMS DI
11011.001 states: "a prior favorable determination or decision made by SSA or the court must

26

be adopted for the same period on the new claim unless the prior favorable determination can be
reopened under the rules of administrative finality" (Dkt. No. 18-2 at 1). However, if a title XVI
record is "currently in terminated status," as here, the collateral estoppel rule of POMS DI
11011.001 does not apply (id.). 8
Notwithstanding the conclusion dictated by the collateral estoppel rule stated in POMS
DI 11011.001, the principles of res judicata did not bind the second ALJ to the first ALJ's
decision. Res judicata prescribes that "a final judgment on the merits of an action precludes the
parties or their privies from relitigating issues that were raised or could have been raised in the
action." Allen v. McCurry, 449 U.S. 90, 94 (1980). The Act addresses res judicata by directing
that "[t]he findings and decision of the Commissioner of Social Security after a hearing shall be
binding upon all individuals who were parties to such hearing." 42 U.S.C. § 405(h). The
regulations advise that res judicata applies when the Commissioner has made a previous final
decision based "on the same facts and on the same issue or issues." 20 C.F.R. §§ 404.957(c)(1),
416.1457(c)(1).
"The crucial question in determining whether the ALJ in the second proceeding was
bound by the RFC finding in the first proceeding is whether there was improvement in Plaintiff's
condition between the two decisions." Mantilla v. Colvin, Civil Action No. 15-11913-FDS, 2016
WL 3882838, at *5 (D. Mass. July 13, 2016). "Although the First Circuit has not decided any
cases [that address the res judicata principle at issue here], there are several cases from other
circuits that speak to the issue." Id. (citing Drummond v. Comm'r of Soc. Sec., 126 F.3d 837 (6th
Cir. 1997); Rucker v. Chater, 92 F.3d 492 (7th Cir. 1996); Chavez v. Bowen, 844 F.2d 691 (9th

8

"Title XVI of the Social Security Act governs applications for . . . SSI." Fischer v. Colvin, 831
F.3d 31, 35 n.3 (1st Cir. 2016).
27

Cir. 1988); Lively v. Sec'y of Health & Human Servs., 820 F.2d 1391 (4th Cir. 1987)). See also
Albright v. Comm'r of the Soc. Sec. Admin., 174 F.3d 473, 476-78 (4th Cir. 1999) (clarifying
Lively).
Two related factors emerge from these cases that are relevant to the court's decision here:
the length of time between the first and second applications; and whether the second ALJ
considered significant new evidence that demonstrated improvement in Plaintiff's condition. See
Mantilla, 2016 WL 3882838, at *5; Frost v. Barnhart, No. 03-215-P-H, 2004 WL 1529286, at
*4 (D. Me. May 7, 2004). Plaintiff filed the second application almost one and one-half years
after the first ALJ issued her decision (A.R. at 19, 87). Because of the passage of a significant
period of time, the second ALJ was not bound by the first ALJ's decision. Compare Rucker, 92
F.3d at 495 (given the two-year gap between the first decision and plaintiff's subsequent
application, the previous RFC determination was not conclusive evidence of plaintiff's RFC on
the later date). Contrast Mantilla, 2016 WL 3882838, at *6 ("Because of the relatively short
amount of time [six months] between the final agency action in [plaintiff's] first case and the
filing of her second application, this case falls into the category of situations in which the initial
RFC finding is 'entitled to some res judicata consideration.'") (quoting Chavez, 844 F.2d at 694).
As to the second factor, the second ALJ considered ALJ Stolfo's decision, concluded that
he was "not bound by [her] findings," reviewed "the evidence found in the current application's
file," which included the 2010 to 2012 records that ALJ Stolfo cited as well as new records, and
determined that Plaintiff was not disabled based on improvements in his condition since
February 2012 (A.R. at 22 & n.4, 27-28, 31-32, 83-84, 272-286, 314-367). See Mantilla, 2016
WL 3882838, at *6 ("The second ALJ was bound by the initial decision unless he made a
specific finding as to an improvement in plaintiff's condition"); Trofimuk v. Comm'r of Soc. Sec.,

28

No. 2:12-cv-2482-KJN, 2014 WL 794343, at *5 (E.D. Cal. Feb. 27, 2014) ("All of the medical
evaluators considered by the ALJ in making her determination in the present case were
conducted after the prior favorable determination. Therefore, the ALJ based her determination
entirely on new and material evidence and was not required to give the findings from the prior
adjudication preclusive effect."); Zavilla v. Astrue, Civil Action No. 09-133, 2009 WL 3364853,
at *13 (W.D. Pa. Oct. 16, 2009) ("The Court is persuaded . . . that the doctrine of res judicata
does not bind a subsequent ALJ to findings and decisions of an earlier ALJ when a claimant
seeks benefits during a subsequent period of time.").
The second ALJ adequately explained the basis for concluding that Plaintiff's condition
had improved since ALJ Stolfo's 2012 decision (A.R. at 22 n.4). See Frost, 2004 WL 1529286,
at *4. Contrast Kimmins v. Colvin, Case No. 12-cv-4206-YGR, 2013 WL 5513179, at *9 (N.D.
Cal. Oct. 4, 2013) (ALJ committed legal error by failing to provide an "explanation or reason . . .
for ignoring the prior finding of disability"). The results of Plaintiff's mental status examination
that VPS conducted on July 1, 2014 showed the following: Plaintiff experienced auditory
hallucinations occasionally, although he did not understand them; his mood was stable; his
thought processes were logical and rational; he was oriented x 3; his behavior, speech, affect, and
thought content were within normal limits; and he reported that his medications were working
(A.R. at 290). On July 24, 2013, Plaintiff's VPS therapist Glenroy Bristol noted that Plaintiff's
"mood was euthymic with bright affect, . . . [he] did not express or exhibit signs of psychosis,
[and his] thoughts were clear, logical, organized, and reality based" (id. at 22, 287). On May 4,
2014, NP Ellis' psychiatric assessment of Plaintiff at Caring Health Center indicated that he was
"[n]egative" for depression and anxiety. Her evaluation of Plaintiff's psychological condition
mirrored Mr. Bristol's July 2013 assessment (id. at 23, 310-11). On September 11, 2014,

29

Plaintiff told Peter Landstrom, RNP of CHD that, although he heard unintelligible voices, he was
feeling well and his medication was effective (id. at 23, 380). RNP Landstrom noted that
plaintiff was euthymic, oriented to all spheres, and displayed speech and thought processes that
were within normal limits (id. at 381-82). In addition, Plaintiff's memory was intact, his
attention and concentration were good, and his judgment and insight were fair (id. at 381). On
October 6, 2014, NP Ellis reported that Plaintiff displayed normal mood, affect, judgment, and
thought content (id. at 23, 398).
Because the second ALJ relied upon assessments that showed Plaintiff's condition had
improved after the first ALJ's decision, he was not bound by the first ALJ's decision, and remand
on the basis of res judicata is not warranted.
3.

The ALJ did not err by assigning "little weight" to Marcus Foster's
opinion.

Plaintiff asserts that the ALJ erred by failing to give the opinion of Marcus Foster, his
therapist, controlling weight (Dkt. No. 13 at 13-17). The ALJ assigned "little weight" to Foster's
opinion based on the facts that his training was less than Dr. Carbone's, he did not treat Plaintiff
for a long period of time, and "it is not readily apparent which medically acceptable clinical or
laboratory diagnostic techniques, if any, [he] based [his] views on" (A.R. at 24).
As a preliminary matter, the Social Security regulations preclude an ALJ from giving
controlling weight to opinions from those who are not "acceptable medical sources." SSR 06–
03p, 2006 WL 23329939, at *2 (Aug. 9, 2006) ("Only 'acceptable medical sources' can be
considered treating sources as defined in 20 CFR 404.1502 and 416.902, whose medical opinions
may be entitled to controlling weight."). Because Foster, a therapist, is not an "acceptable
medical source" under the regulations, his opinions are not entitled to controlling weight. See 20
C.F.R. 404.1513(d)(1) (defining "other sources"); see also, e.g., Cappuccio v. Colvin, CIVIL
30

ACTION NO. 14-10152-JGD, 2015 WL 5886186, at *9 (D. Mass. Oct. 8, 2015) ("a therapist or
licensed social worker . . . is not considered an 'acceptable medical source' for purposes of the
disability analysis").
However, Foster is an "other source," whose opinion must be appropriately weighted. An
ALJ may not "ignore 'other medical sources' or fail to adequately explain the weight given to
such evidence." Taylor v. Astrue, 899 F. Supp. 2d 83, 88 (D. Mass. 2012). "Thus, although
'other medical sources' are not entitled to controlling weight and an administrative law judge is
not required to provide 'good reasons' for the weight assigned to such opinions nor consult the
factors listed in 20 C.F.R. §§ 416.927(C)(2)-(6), [the ALJ] still must adequately explain his
treatment of the opinion so that a reviewer can determine if the decision is supported by
substantial evidence." Id. at 88–89. SSR 06-03p articulates the factors used to evaluate the
opinions of "other medical sources." See SSR 06-3p, 2006 WL 23329939, at *4-5. These
factors include:
[1] How long the source has known and how frequently the source has seen the
individual; [2] How consistent the opinion is with other evidence; [3] The degree to
which the source presents relevant evidence to support an opinion; [4] How well the
source explains the opinion; [5] Whether the source has a specialty or area of expertise
related to the individual's impairment(s); and [6] Any other factors that tend to support or
refute the opinion.
Id. "Not every factor for weighing opinion evidence will apply in every case." Id. at *5.
Here, the ALJ's decision to afford "little weight" to Foster's opinions is adequately
explained and supported by enumerated factors. See id. at *6. First, the ALJ correctly noted that
Foster only had treated Plaintiff once per week for approximately ten weeks at the time he
completed the Mental Impairment Questionnaire (A.R. at 24, 305, 308). See SSR 06-03p, 2006
WL 23329939, at *4. Second, Foster failed to explain the basis for his opinion or present
relevant supporting evidence (A.R. at 24). Indeed, the majority of Foster's report consists of
31

check marks on the questionnaire (id. at 306-08). See Berrios Lopez v. Sec'y of Health & Human
Servs., 951 F.2d 427, 431 (1st Cir. 1991) (reports containing the mere checking of boxes are
entitled to relatively little weight). Third, Plaintiff failed to sustain his burden of establishing
Foster's area of expertise. See 06-03p, 2006 WL 2329939, at *4. Finally, the record evidence,
including Dr. Carbone's and the DDS consultants' opinions and the treatment records,
contradicted Foster's opinion. See Montero v. Colvin, Civil No. 12-cv-412-JL, 2013 WL
4042424, at *3 (D.N.H. Aug. 8, 2013). Foster found Plaintiff had "marked" restriction of his
daily living activities and difficulties in social functioning, and "extreme" difficulties in
maintaining concentration, persistence, or pace (A.R. at 305). On the other hand, the DDS
consultants opined that Plaintiff's daily living and social functioning limitations were "moderate"
as were his deficiencies in maintaining concentration, persistence, or pace (id. at 93, 107). Foster
assigned a GAF score of 45, while Dr. Carbone indicated a GAF score of 52 and therapist
Glenroy Bristol assigned a GAF score of 56 (id. at 296, 305, 325). The treatment records of
Bristol, NP Ellis, and RNP Landstrom, which were discussed earlier, further undermine Foster's
opinion (id. at 22, 287, 310-11, 380-82, 398). In addition, Foster's opinion was internally
inconsistent. Despite noting Plaintiff had a "positive response" to medication and therapy, he
identified eighteen signs and symptoms that Plaintiff exhibited (id. at 305, 306).
It was up to the ALJ to resolve conflicts in the evidence. See Irlanda Ortiz, 955 F.2d at
769. The court finds that the ALJ reasonably accorded little weight to Foster's opinions, and
sufficiently explained the basis for his decision. Accordingly, the Plaintiff presents no basis for a
remand on this issue.

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IV.

CONCLUSION

Because the ALJ determined Plaintiff's RFC without explaining his treatment of relevant
evidence, the court is unable to conclude that his decision is supported by substantial evidence.
Accordingly, as to Plaintiff's objection # 1 as described herein, Plaintiff's Motion for Summary
Judgment (Dkt. No. 12) is GRANTED, and Defendant's Motion to Affirm the Commissioner's
Decision (Dkt. No. 17) is DENIED, the ALJ's decision is vacated pursuant to sentence four of 42
U.S.C. § 405(g), and the case is remanded for further proceedings in accordance with this
Memorandum and Order.
It is so ordered.
Dated: September 29, 2017

/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
United States Magistrate Judge

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