Bowden v. Astrue

Filing 14

MEMORANDUM AND ORDER denying 10 Motion to Reverse Decision of the Commissioner; granting 13 Motion to Affirm the Decision of the Commissioner. So Ordered by Magistrate Judge David L. Martin on 6/4/2012. (Noel, Jeannine)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
DONALD BOWDEN,
Plaintiff,

:
:
:
v.
:
:
MICHAEL J. ASTRUE, Commissioner, :
Social Security Administration, :
Defendant.
:

CA 11-84 DLM

MEMORANDUM AND ORDER
This matter is before the Court on a request for judicial
review of the decision of the Commissioner of Social Security (the
“Commissioner”), denying disability insurance benefits (“DIB”)
under § 205(g) of the Social Security Act, as amended, 42 U.S.C. §
405(g) (the “Act”).

Plaintiff Donald Bowden (“Plaintiff,” the

“claimant,” or the “client”) has filed a motion for an order
reversing the decision of the Commissioner.
Astrue

(“Defendant”)

has

moved

for

an

Defendant Michael J.
order

affirming

the

Commissioner’s decision.
With the parties’ consent, this case has been referred to a
magistrate judge for all further proceedings and the entry of
judgment in accordance with 28 U.S.C. § 636(c).

For the reasons

set forth herein, I find that the Commissioner’s decision that
Plaintiff is not disabled is supported by substantial evidence in
the record and is legally correct.

Accordingly, based on the

following analysis, I order that Defendant’s Motion for an Order
Affirming the Decision of the Commissioner (Docket (“Dkt.”) #13)

(“Motion to Affirm”) be granted and that Plaintiff’s Motion for an
Order

Reversing

the

Decision

of

the

Commissioner

(Dkt.

#10)

(“Motion to Reverse”) be denied.
Facts and Travel
Plaintiff was born in 1964 and was forty-two years old as of
the alleged onset date of his disability.
23)

(Record (“R.”) at 13,

He has a tenth grade education, is able to communicate in

English, and has past relevant work experience as a cook in several
nursing homes.

(R. at 13, 24, 34, 139-41, 146)

Plaintiff protectively filed an application for DIB on July
31, 2008, (R. at 7, 92-94, 135), alleging disability beginning on
August 7, 2006, due to depression, attention deficit disorder
(“ADD”), and memory problems, (R. at 7, 140).

The application was

denied initially, (R. at 7, 38, 42-44), and on reconsideration, (R.
at 7, 39, 47-49).

Plaintiff then requested a hearing before an

administrative law judge (“ALJ”).
held

on

August

25,

2010,

at

(R. at 7, 52)

which

Plaintiff,

A hearing was
represented

by

counsel, appeared and testified, as did an impartial vocational
expert (“VE”).

(R. at 7, 20-37)

On September 24, 2010, the ALJ issued a decision finding that
Plaintiff was not disabled within the meaning of the Act.
7-15)

(R. at

The Decision Review Board selected Plaintiff’s claim for

review, (R. at 1, 4), but failed to complete its review within the
time allowed, (R. at 1), thereby rendering the ALJ’s decision the

2

final decision of the Commissioner, (id.).

Thereafter, Plaintiff

filed this action for judicial review.
Issue
The issue for determination is whether the decision of the
Commissioner that Plaintiff is not disabled within the meaning of
the Act, as amended, is supported by substantial evidence in the
record and is free of legal error.
Standard of Review
Pursuant

to

the

statute

governing

review,

the

Court

is

empowered “to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision
of the Commissioner of Social Security, with or without remanding
the cause for a rehearing.”

42 U.S.C. § 405(g).

The Court’s role

in reviewing the Commissioner’s decision is limited.
Apfel, 71 F.Supp.2d 28, 30 (D.R.I. 1999).

Brown v.

Although questions of

law are reviewed de novo, the Commissioner’s findings of fact, if
supported by substantial evidence in the record,1 are conclusive.
Id.

(citing

42

U.S.C.

§

405(g)).

The

determination

of

substantiality is based upon an evaluation of the record as a
whole.

Id. (citing Irlanda Ortiz v. Sec’y of Health & Human

1

The Supreme Court has defined substantial evidence as “more than
a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420 (1971)(quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206 (1938)); see also
Brown v. Apfel, 71 F.Supp.2d 28, 30 (D.R.I. 1999)(quoting Richardson v.
Perales, 402 U.S. at 401).

3

Servs., 955 F.2d 765, 769 (1st Cir. 1991)(“We must uphold the
[Commissioner’s] findings ... if a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adequate to
support his conclusion.”)(second alteration in original)).

The

Court does not reinterpret the evidence or otherwise substitute its
own judgment for that of the Commissioner.

Id. at 30-31 (citing

Colon v. Sec’y of Health & Human Servs., 877 F.2d 148, 153 (1st Cir.
1989)).

“Indeed, the resolution of conflicts in the evidence is

for the Commissioner, not the courts.” Id. at 31 (citing Rodriguez
v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)
(citing Richardson v. Perales, 402 U.S. 389, 399, 91 S.Ct. 1420
(1971))).
Law
To qualify for DIB, a claimant must meet certain insured
status requirements,2 be younger than 65 years of age, file an
application for benefits, and be under a disability as defined by
the Act.

See 42 U.S.C. § 423(a).

The Act defines disability 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. 423(d)(1)(A). A claimant’s impairment must

2

The Administrative Law Judge (“ALJ”) found that Plaintiff met the
insured status requirements of the Social Security Act (the “Act”)
through December 31, 2011. (R. at 7-8, 9)

4

be of such severity that he is unable to perform his previous work
or any other kind of substantial gainful employment which exists in
the

national

economy.

See

42

U.S.C.

§

423(d)(2)(A).

“An

impairment or combination of impairments is not severe if it does
not significantly limit [a claimant’s] physical or mental ability
to do basic work activities.”3

20 C.F.R. § 404.1521(a) (2011).

A

claimant’s complaints alone cannot provide a basis for entitlement
when they are not supported by medical evidence.

See Avery v.

Sec’y of Health & Human Servs., 797 F.2d 19, 20-21 (1st Cir. 1986);
20 C.F.R. § 404.1529(a) (2011).
The Social Security regulations prescribe a five step inquiry
for use in determining whether a claimant is disabled.

See 20

C.F.R. § 404.1520(a) (2011); see also Bowen v. Yuckert, 482 U.S.
137, 140-42, 107 S.Ct. 2287, 2291 (1987); Seavey v. Barnhart, 276
F.3d

1,

5

(1st

Cir.

2001).

Pursuant

to

that

scheme,

the

Commissioner must determine sequentially: (1) whether the claimant

3

The regulations describe “basic work activities” as “the abilities
and aptitudes necessary to do most jobs.”
20 C.F.R. § 404.1521(b)
(2011). Examples of these include:
(1) Physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple
instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and
usual work situations; and
(6) Dealing with changes in a routine work setting.
Id.

5

is presently engaged in substantial gainful work activity; (2)
whether he has a severe impairment; (3) whether his impairment
meets or equals one of the Commissioner’s listed impairments; (4)
whether he is able to perform his past relevant work; and (5)
whether he remains capable of performing any work within the
economy.

See 20 C.F.R. § 404.1520(b)-(g).

terminated at any step.

The evaluation may be

See Seavey, 276 F.3d at 4.

“The applicant

has the burden of production and proof at the first four steps of
the process.

If the applicant has met his or her burden at the

first four steps, the Commissioner then has the burden at Step 5 of
coming forward with evidence of specific jobs in the national
economy

that

the

applicant

can

still

perform.”

Freeman

v.

Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).
ALJ’s Decision
Following the familiar sequential analysis, the ALJ in the
instant case made the following findings: that Plaintiff had not
engaged in substantial gainful activity since August 7, 2006, his
alleged onset date, (R. at 9); that Plaintiff’s ADD, depression,
and substance addiction disorder were severe impairments, (id.);
that

Plaintiff

did

not

have

an

impairment

or

combination

of

impairments which met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1,

(R. at

10); that Plaintiff retained the residual functional capacity
(“RFC”) to perform a full range of work at all exertional levels

6

but with the nonexertional limitations of a moderate limitation in
concentration requiring only simple, routine, repetitive tasks with
only simple work decisions and few, if any, workplace changes
without

fast

paced

production

requirements

and

a

moderate

limitation in social functioning requiring isolation from others
with

only

up

to

occasional

supervision,

(R.

at

11);

that

Plaintiff’s medically determinable impairments could reasonably be
expected

to

cause

his

alleged

symptoms,

but

his

statements

concerning the intensity, persistence, and limiting effects of
these

symptoms

were

not

credible

to

the

extent

they

were

inconsistent with the above RFC, (R. at 12); that Plaintiff was not
capable of performing any past relevant work, (R. at 13); that,
considering Plaintiff’s age, education, work experience, and RFC,
there were jobs existing in significant numbers in the national
economy

which

Plaintiff

could

perform,

(R.

at

14);

and

that

Plaintiff was not under a disability, as defined in the Act, at any
time through the date of the ALJ’s decision, (id.).
Errors Claimed
Plaintiff alleges that: 1) the ALJ’s mental RFC findings were
not supported by substantial evidence; and 2) the ALJ’s credibility
findings were not supported by substantial evidence.
Discussion
I.

The ALJ’s mental RFC findings
As noted above, the ALJ found that Plaintiff retained the RFC
7

to perform a full range of work at all exertional levels but with
a moderate limitation in concentration requiring only simple,
routine, repetitive tasks with only simple work decisions and few,
if

any,

workplace

requirements

and

requiring

a

isolation

supervision.

changes
moderate
from

(R. at 11)

without

fast

limitation

others

with

in
only

paced

production

social

functioning

up

to

occasional

Plaintiff argues that the ALJ’s mental

RFC findings are not supported by substantial evidence because they
“were not based on the opinions of any treating, examining or
reviewing medical source who had reviewed the entirety of the
medical record.”
for

an

Order

Plaintiff’s Memorandum in Support of His Motion
Reversing

the

Decision

of

the

Commissioner

(“Plaintiff’s Mem.”) at 8.
The ALJ stated that:
As for the opinion evidence, the undersigned gives
substantial weight to the conclusions of the State agency
consultant[]s who noted that the claimant has only
“moderate” mental limitations. In fact, the claimant’s
own psychiatric clinicians at the Rhode Island Hospital
Department of Psychiatry have predominantly noted GAF’s
between “58” and “65” consistent with only mild to
moderate symptoms.[4] Indeed, an attending psychiatrist
4

The Global Assessment of Functioning (“GAF”) “is a subjective
determination based on a scale of 100 to 1 of ‘the clinician’s judgment
of the individual’s overall level of functioning.’” Langley v. Barnhart,
373 F.3d 1116, 1123 n.3 (10th Cir. 2004)(quoting Diagnostic and
Statistical Manual of Mental Disorders (Text Revision 4th ed. 2000) (“DSMIV-TR”) at 32).
The GAF “[c]onsider[s] psychological, social, and
occupational functioning on a hypothetical continuum of mental healthillness.”
DSM-IV-TR at 34.
A GAF score between 51-60 indicates
“[m]oderate 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-

8

noted as recently as August 2010 that with most
psychiatric patients, except for being psychotic,
“structure and returning to work as soon as possible are
beneficial” for these patients. The undersigned gives
less probative weight to the other more disabling GAF’s
of “20” to “50” (consistent with serious symptoms up to
being a danger to one[’]s self)[5] noted by the claimant’s
other treating and examining psychiatric sources since
these assessments only represent temporary exacerbations
in symptoms which improved in short periods of time.
Although she noted that the claimant had “significant”
memory loss and “difficulty” completing tasks, this
treating therapist [Susan Benson, MS, LMFT6] did not
specify the severity of these mental limitations.
(R. at 13)(internal citations and footnote omitted).
Plaintiff contends that the Disability Determination Services
(“DDS”) nonexamining sources “had not had the benefit of reviewing
approximately 15 months of records,” Plaintiff’s Mem. at 9, which
records were “significant,” id., as they included an additional
diagnosis of a personality disorder as well as a suicide attempt in
June of 2010, see id.; see also id. (“No medical source had
reviewed those later records or gave an opinion of the functional
workers).”
Id.
A GAF between 61-70 is indicative of “[s]ome 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.” Id.
5

A GAF score between 11-20 reflects “[s]ome danger of hurting self
or others (e.g., suicide attempts without clear expectation of death;
frequently violent; manic excitement) OR occasionally fails to maintain
minimal personal hygiene (e.g., smears feces) OR gross impairment in
communication (e.g., largely incoherent or mute). DSM-IV-TR at 34. A
GAF between 41-50 denotes “[s]erious 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). Id.
6

Licensed Marriage and Family Therapist.

9

limitations

reflected

therein.”).

Therefore,

according

to

Plaintiff:
The ALJ essentially acted as his own medical expert: He
interpreted the raw medical data in functional terms, he
determined on his own that [Plaintiff]’s personality
disorder did not constitute a severe impairment and
caused no significant functional limitations, and
determined on his own that the GAF ratings above 50 were
reliable reflections of [Plaintiff]’s functioning while
the ratings below 50 were not.
Plaintiff’s Mem. at 9.
As the ALJ noted, “the opinions of nonexamining physicians are
entitled to some weight under the regulations.”7

(R. at 10 n.2)

(internal citations omitted); see also (R. at 13 n.4)(same).

The

Court of Appeals for the First Circuit has stated that:
[T]he amount of weight that can properly be given the
conclusions of non-testifying, non-examining physicians
will vary with the circumstances, including the nature of
the illness and the information provided the expert. In
some cases, written reports submitted by non-testifying,
non-examining
physicians
cannot
alone
constitute
substantial evidence, although this is not an ironclad
rule.
Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994)(internal citations
and quotation marks omitted); see also Berrios Lopez v. Sec’y of
Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991); Social

7

The ALJ acknowledged that “[g]enerally, we give more weight to
opinions of treating sources, even ‘controlling weight,’ if they are well
supported by medially acceptable clinical and laboratory diagnostic
techniques and not inconsistent with other substantial evidence.” (R.
at 13)

10

Security Ruling (“SSR”) 96-6p, 1996 WL 374180, at *2-3 (S.S.A.).8
Although an ALJ, as a layperson, is “not qualified to interpret raw
medical data in functional terms ...,” Nguyen v. Chater, 172 F.3d
31, 35 (1st Cir. 1999), “[t]his principle does not mean ... that the
[ALJ] is precluded from rendering common-sense judgments about
functional capacity based on medical findings, as long as [he] does
not overstep the bounds of a layperson’s competence and render a
medical judgment,” Gordils v. Sec’y of Health & Human Servs., 921
F.2d 327, 329 (1st Cir. 1990).
The Psychiatric Review Technique (“PRT”) form and Mental
Residual Functional Capacity Assessment (“MRFC”) completed by J.
Coyle, Ph.D., and affirmed by Clifford Gordon, Ed.D., are the only
formal functional assessments in the record.
19, 335)

(R. at 302-15, 316-

As the ALJ noted, (R. at 13), they reflect that Plaintiff

was no more than moderately limited in any area, (R. at 312, 31617).

Dr.

Coyle

included

a

detailed

summary

of

the

medical

evidence, (R. at 314), as well as the following Functional Capacity
Assessment:
Cl[aiman]t presents with probable ADD, depression, and
alcohol abuse in remission. His activities are reduced,
and he reports his current psych meds are not helping.
His allegations are generally credible, but his
limitations do not appear to exceed the moderate range of

8

Social Security Ruling (“SSR”) 96-6p provides in part that “[i]n
appropriate circumstances, opinions from State agency medical and
psychological consultants and other program physicians and psychologists
may be entitled to greater weight than the opinions of treating or
examining sources.” SSR 96-6p, 1996 WL 374180, at *3 (S.S.A.).

11

impairment in any critical area of functioning.
Intelligence measures in the high borderline to low
average range. Cl[aiman]t has difficulty with complex
tasks of divided attention, but he retains the capacity
to understand, remember, and carry out routine and
repetitive tasks.
The evidence overall supports the following MRFC:
Cl[aiman]t can understand and remember 1 to 2 step
instructions of a routine nature.
He can sustain attn/conc[entration] for routine and
repetitive tasks and maintain effort for extended periods
of time over the course of a normal work day/week within
acceptable pace and persistence standards.
Social capacities are adequate for brief superficial or
casual interactions with the general public. Cl[aiman]t
is capable of typical interactions with coworkers and
supervisors while completing routine tasks.[9] He is able
to maintain adequate personal grooming and hygiene.
Stress tolerance is acceptable for a routine work
setting.
Cl[aiman]t can adapt to minor changes in
routine.
He is capable of independent goal directed
behavior while completing routine tasks. He is aware of
typical hazards. He can travel independently.
(R. at 318)
In Berrios Lopez, the First Circuit found that substantial
evidence, in the form of reports of non-testifying, non-examining
physicians, supported the ALJ’s RFC assessment.
431.

See 951 F.2d at

The court stated that:
Although
specific
evidence
Sanchez’
way of

we think it a close question, we find, on the
facts of this case, that there is substantial
to support the Secretary’s finding.
Dr.
report–if not Dr. Arzola’s–contains more in the
subsidiary medical findings to support his

9

In fact, the ALJ’s RFC is more restrictive in that the ALJ
“requir[ed] isolation from others with only up to occasional
supervision.” (R. at 11)

12

conclusions concerning residual functional capacity than
is customarily found in the reports of consulting, nonexamining physicians. Such reports often contain little
more than brief conclusory statements or the mere
checking of boxes denoting levels of residual functional
capacity, and accordingly are entitled to relatively
little weight.
Id.

Here, based on the foregoing, it is clear that Dr. Coyle did

not simply make conclusory statements or check boxes.
As for Plaintiff’s treating sources, his therapist, Susan
Benson, submitted a report dated October 8, 2008, the substance of
which reads in its entirety:
HISTORY OF PRESENT ILLNESS:
I have been meeting with [Plaintiff] almost on a weekly
basis since 12/19/05.
He has significant symptoms of
depression and PTSD brought about by a chaotic and
abusive childhood. [Plaintiff] is also concerned because
he appears to have significant memory loss, and he has
difficulty completing tasks.
He has had to go back
several times to make sure something has been done
correctly.
If you have any questions, please give me a call.
(R. at 293)

...

Regarding this report, the ALJ stated that Ms. Benson

“did not specify the severity of these mental limitations.” (R. at
13)

There are no treatment notes from Ms. Benson in the record.

Cynthia Yang, M.D., Plaintiff’s most recent treating psychiatrist,
declined to complete questionnaires, stating that “I have just
begun seeing [Plaintiff] and feel unprepared to comment adequately.
It will take me at least several visits to understand this patient
fully enough to comment in this regard.”

(R. at 429)

Plaintiff’s

counsel was unable to obtain an opinion from Plaintiff’s prior

13

treating psychiatrist, Brian Daly, M.D.

(R. at 190)

Thus, there

are no functional assessments from Plaintiff’s treating sources in
the record.
Plaintiff cites Alcantara v. Astrue, 257 Fed. Appx. 333 (1st
Cir. 2007), in support of his argument that because the state
agency sources had not reviewed the entire record their opinions
should not be considered substantial evidence in support of the
ALJ’s RFC findings. Plaintiff’s Mem. at 9. Alcantara, however, is
distinguishable.
First, the First Circuit in Alcantara stated that the ALJ
could not give significant weight to the nonexamining consultant’s
opinion because it was “based on a significantly incomplete record,
and it was not well justified.”

Alcantara, 257 Fed. Appx. at 334.

The court noted that the reviewing consultant had considered “no
more than the first third of the record ....”

Id.

In the instant

matter, Plaintiff alleges that the DDS reviewing sources had not
reviewed “approximately 15 months of records.” Plaintiff’s Mem. at
9. Moreover, the Alcantara court observed that “[a]lthough the ALJ
stated that the record underwent no material change, he did not
explain his analysis.

The record repeatedly indicated that the

appellant deteriorated with her parents’ deaths.”
Fed. Appx. at 334.

In fact, the court

Alcantara, 257

suggested that the ALJ was

“unaware of the mother’s death and the issue it raised.”

Id.

Here, by contrast, Dr. Coyle’s opinion was well justified, and the

14

ALJ was clearly aware of subsequent events. (R. at 13)(noting that
the “more disabling GAF’s of ‘20’ to ‘50’” indicated by Plaintiff’s
treating

and

examining

sources

“only

represent[ed]

temporary

exacerbations in symptoms which improved in short periods of
time”); see also Discussion, Section I infra at 23-24.
Second, in Alcantara the First Circuit observed that:
The ALJ ignored Therapist Serabian’s opinion because she
was a licensed social worker, not an acceptable medical
source.
The ALJ could not simply ignore Serabian’s
opinion.
Although acceptable medical sources are the
primary sources of evidence about the severity of
impairment and its effect on work abilities, they are not
the sole permissible sources of such evidence. Serabian
was a medical source capable of providing evidence about
the severity and effects of impairment, as well as a
general source of evidence.
The ALJ was required to
weigh all of the evidence.
Alcantara, 257 Fed. Appx. 334-35 (internal citations omitted).
Unlike the ALJ in Alcantara, the ALJ here addressed the brief
report of Plaintiff’s treating therapist, Susan Benson.

(R. at

13)(“Although she noted that the claimant had ‘significant’ memory
loss and ‘difficulty’ completing tasks, this treating therapist did
not specify the severity of these mental limitations.”)(internal
citation omitted).
Third,

the

Alcantara

discounted

the

prescribed

treatment.”

court

appellant’s

stated

that

limitations

Alcantara,

“[t]he

because

257

she

Fed.

Appx.

ALJ

also

neglected
at

335.

Specifically, the plaintiff had missed therapy appointments, but
had

obtained

interim

treatment

15

during

that

time.

The

court

reasoned that “the rationale for requiring compliance with medical
advice is not to punish minor lapses, but to ensure that claimants
do what they can to restore capacity.”

Id.

In the instant matter,

there is a pattern of lack of motivation and failure to follow
recommendations.
For example, in a July 5, 2009, summary of treatment, Natalie
Lester,

M.D.,

observed

that

Plaintiff’s

depression

had

characterized by, among other things, “amotivation ....”
411)

been

(R. at

Plaintiff had previously rejected inpatient hospitalization.

(R. at 351) Dr. Lester observed that Plaintiff “remains focused on
medication management to help him feel better, but making changes
in his life (e.g. regarding marriage and job) may result in more
improvement than medications can provide.”

(R. at 411)

Dr. Daly, who thereafter took over Plaintiff’s care, indicated
on July 27, 2009, after Plaintiff’s second visit, that Plaintiff’s
“amotivation

is

concerning

and

bodes

poorly

for

success

in

[cognitive behavioral therapy] as [Plaintiff] would likely not do
[homework,] etc.” (R. at 412) Dr. Daly mentioned Plaintiff’s lack
of motivation on subsequent occasions. (R. at 413)(“I am beginning
to feel that [Plaintiff] has little motivation to get better”); (R.
at 416);(noting that Plaintiff “puts little effort into his care &
getting better”).
rejecting.”

Dr. Daly also described Plaintiff as “help

(R. at 420, 421, 423, 424)

Dr. Daly noted that

Plaintiff “tended to be reluctant to try psychotherapy,” (R. at

16

413), initially stating that he thought his former therapist would
not want to work with him since he lost his insurance, (R. at 412),
and subsequently declaring that he had tried therapy in the past
and

“it

“wouldn’t

didn’t
do

help,”

[Partial

(R.

at

417).

Hospitalization

In

addition,

Program],

Plaintiff

would

not

do

research study, does not want medication [change],” (R. at 418),
all suggested by Dr. Daly. On November 12, 2009, Dr. Daly recorded
that Plaintiff “became angry when the conversation turned to his
possibly working[,]” (R. at 417), despite Dr. Daly’s explanation
that most research revealed that “work & structure helped with
depression,” (id.); see also (R. at 418)(noting that Plaintiff “has
low tolerance for being challenged around working (disability)”);
(R. at 419)(noting that Plaintiff was not amenable “to suggestions
that working might be

beneficial to him”).

Dr. Daly concluded

that “[f]rom all I can see though, including his past doing well
while working [during the time he was drinking] & his current
stagnation, disability is probably detrimental to him & he would
likely do better working.”
that

Plaintiff

was

work/volunteering”).

(Id.); see also (R. at 423) (noting

“resistant

to

suggestions

of

activity

&

Dr. Daly summarized his year with Plaintiff,

in part, as “significant for help rejecting as noted by Dr. Lester
(previous provider) & amotivation to do anything to move his life
forward ....”

(R. at 427)

It was noted on June 30, 2010, by Rhode

Island Hospital staff that Plaintiff was “awaiting disability which

17

may be affecting [his] desire to improve ....”

(R. at 397)

Dr.

Yang, who assumed Plaintiff’s care in July, 2010, recorded that
“[a]s

per

previous

providers,

[Plaintiff]

appears

quite

rejecting ....” (R. at 425); see also (R. at 428).

help

Plaintiff

reiterated that he “wouldn’t want to go [to therapy] anyway[,]” (R.
at 426), even if he had insurance.
Yang

discontinued

Plaintiff’s

It is noteworthy that after Dr.

Adderall,

(R.

at

425-26),

he

continued to take it, (R. at 428).
As the First Circuit has stated, “[i]mplicit in a finding of
disability is a determination that existing treatment alternatives
would not restore a claimant’s ability to work.”

Irlanda Ortiz v.

Sec’y of Health & Human Servs., 955 F.2d 765, 770 (1st Cir. 1991)
(alteration in original)(quoting Tsarelka v. Sec’y of Health &
Human Servs., 842 F.2d 529, 534 (1st Cir. 1988)).

Plaintiff’s

refusal to consider treatment alternatives and, with regard to his
continuing to take Adderall, outright disregard for his treating
psychiatrist’s

order,

goes

well

beyond

the

“minor

lapses,”

Alcantara, 257 Fed. Appx. at 335, noted by the court in Alcantara.
Plaintiff

also

argues

that

the

diagnosis

of

Plaintiff’s

“personality disorder, with symptoms of ‘narcissism, provocative
statements, easily angered, poor inter personal relationships’ was
made after the state agency psychologists made their review of the
record,” Plaintiff’s Mem. at 9 (quoting (R. at 422)), and that the
ALJ “determined on his own that [Plaintiff]’s personality disorder

18

did not constitute a severe impairment and caused no significant
functional limitations,” id. The first diagnosis of “pers[onality]
d/o NOS,” (R. at 424), appears in the record on May 10, 2010,
(id.), although Dr. Daly had questioned whether there was an “Axis
II component confounding his mood d/o ...,” (R. at 409), from the
beginning of his treatment of Plaintiff, (R. at 409-24, 427).

The

problem with Plaintiff’s argument is that he has identified no
functional limitations resulting therefrom.

See Musto v. Halter,

135 F.Supp.2d 220, 233 (D. Mass. 2001)(“Although the record is
indeed peppered with references to [plaintiff]’s depression, there
is

absolutely

no

indication

that

it

rises

to

the

level

of

interfering with his inability to engage in any substantial gainful
activity.”)(internal quotation marks omitted).

A diagnosis of a

personality disorder, without more, does not equate to disability.
See Torres v. Barnhart, 249 F.Supp.2d 83, 97 (D. Mass. 2003)
(“[J]ust because [plaintiff] suffers from depression and anxiety
simply does not mean, a fortiori, that she has any impairment or
combination

of

impairments

which

significantly

limits

[her]

physical or mental ability to do basic work activities.”)(second
alteration in original)(internal quotation marks omitted).
Plaintiff

was

questioned

at

the

hearing

regarding

interpersonal relationships and anger issues:
Q

Do you have any difficulty dealing with people?

A

I don’t know.

19

Q

Do you spend time with anyone besides your wife?

A

No.

Q

Why?

A

I just don’t have the energy, the enthusiasm, just
don’t.

Q

Okay.

A

I just pretty much want to be by myself or with my
four-legged, furry daughter in bed.

Q

At one point, your doctor mentioned you would get
angry easily and poor interpersonal relationships.
Would you say that that’s true?

A

Yes.

Q

What, what will make you angry?

A

You’d have to ask my wife.
I -- you know -Somebody was to make fun of my four-legged, furry
daughter, I’d -- I really don’t pay attention to
exactly what it is.

Q

What happens when you get angry?

A

Depends on whom I’m getting angry at. If it’s a -if it’s a guy, I want to punch him.
If it’s a
girl, I might say something, but --

(R. at 28-39); see also (R. at 31)(noting that he would react to
stress in a fast-paced work environment by probably walking out or
getting angry).
interpersonal

To the extent Plaintiff’s issues with anger and
relationships

can

be

considered

functional

limitations resulting from Plaintiff’s personality disorder, the
ALJ accounted for them in his RFC assessment. He limited Plaintiff
to jobs without fast-paced production requirements.

(R. at 11)

The ALJ also restricted Plaintiff to jobs “requiring isolation from
20

others with only up to occasional supervision.”

(Id.)

Plaintiff makes a similar argument with regard to Plaintiff’s
June, 2010, suicide attempt, namely that the DDS psychologists did
not see the records pertaining thereto.

See Plaintiff’s Mem. at 9

(“No medical source had reviewed those later records or gave an
opinion of the functional limitations reflected therein.”). Again,
however, Plaintiff has failed to identify specific functional
limitations allegedly reflected in these records.
Plaintiff was brought to Rhode Island Hospital by rescue on
June 26, 2010, after taking a “couple swigs,” (R. at 354, 386), of
brake fluid and twelve clonezapam tablets, (id.), in what Dr. Yang
described as a “suicidal gesture,” (R.
initially

was

assigned

a

GAF

of

20,

at 426).10

(R.

at

386,

Plaintiff
389),

was

subsequently hospitalized, (R. at 353-55, 425), and “[i]nsight
oriented and supportive therapy [was] provided, with appropriate
patient response,” (R. at 355).

On discharge, his GAF was listed

as 50, (id.), and the Rhode Island Hospital Discharge Summary
stated:
The patient denied suicidal or homicidal ideation and
expressed hopefulness about the future. He is futurefocused and goal-oriented. He denied auditory or visual
hallucinations.
His judgment and insight are both
considered to be fair. Patient stated that he will call
inpatient facility (S[S]TAR) and request admission in the
event that he feels down again or has thoughts of
suicide. P[atien]t is stable, future-oriented, and there

10

Plaintiff twice had attempted suicide “years ago in the context
of alcohol intoxication via [overdose] and cutting.” (R. at 354)

21

is no evidence that he will try to hurt himself or
others.
(R. at 355)
Dr. Yang saw Plaintiff on July 7, 2010, six days after his
discharge.

(R. at 425)

Plaintiff related that prior to his

overdose “he had missed taking his medication (Effexor) for several
days [because] he had not received them in the mail.”

(Id.)

According to Plaintiff, he felt that his symptoms worsened without
taking Effexor, “resulting in suicidal gesture ....”
26)

(R. at 425-

According to Plaintiff, “[s]ince admission, [he] feels his

mood, although depressed, is somewhat improved from restarting
Effexor.”

(R.

at

426)

Plaintiff

endorsed

passive

suicidal

ideation, but did not have a plan, and reported that he was able to
contract for safety at home.

(R. at 425)

On his next visit, Dr.

Yang noted that Plaintiff appeared stable, presented no acute
safety issues at that time, had no suicidal or homicidal ideation,
and was future oriented.

(R. at 428)

Plaintiff described his mood

as “alright.”
The Court finds that the ALJ could reasonably have concluded
that Plaintiff’s suicide attempt/gesture represented a temporary
exacerbation of symptoms which resolved in a short period of time,
(R. at 13); see also Irlanda Ortiz, 955 F.2d at 769 (noting that a
court must uphold the Commissioner’s findings “if a reasonable
mind, reviewing the evidence in the record as a whole, could accept
it as adequate to support his conclusion”), especially given
22

Plaintiff’s description of having been off his anti-depressant
medication for several days prior to overdosing, (R. at 425-26).
Further, Dr. Yang’s expressed belief that, in general, she did not
believe in disability for psychiatric reasons because “[f]or most
psychiatric illnesses the majority of data shows that structure and
returning to work as soon as possible are beneficial, and that lack
of structure is deleterious to a patient’s mental health and
recovery,” (R. at 429), is consistent with Dr. Daly’s advice to
Plaintiff, (R. at 417).
Finally, Plaintiff’s contention that the ALJ “determined on
his own that the GAF ratings above 50 were reliable reflections of
[Plaintiff]’s functioning while the ratings below 50 were not,”
Plaintiff’s Mem. at 9, and that “[h]e was not qualified to do any
of that[,]” is unpersuasive.

Plaintiff was assessed GAF ratings of

58 or above11 on ten separate occasions.

(R. at 321-28, 334, 343)

He was assigned a GAF of 2012 on arrival at the Rhode Island
Hospital emergency room after his suicide attempt, (R. at 386,
389), a GAF of 2513 during his stay, (R. at 388, 397), and a GAF of

11

See n.4.

12

See n.5.

13

A GAF between 21-30 is described as follows: “Behavior is
considerably influenced by delusions or hallucinations OR serious
impairment in communication or judgment (e.g., sometimes incoherent, acts
grossly inappropriately, suicidal preoccupation) OR inability to function
in almost all areas (e.g., stays in bed all day, no job, home, or
friends).” DSM-IV-TR at 34.

23

5014 on discharge, (R. at 355, 400)
GAF of 50.15

Dr. Fontaine also assessed a

(R. at 299)

While the Court would be concerned if the ALJ had extrapolated
specific functional limitations from a certain GAF score, it was
reasonable for the ALJ to conclude, simply based on the numbers,
that the GAFs of 20, 25, and 50 “only represent[ed] temporary
exacerbations in symptoms which improved in short periods of time.”
(R. at 13); see also Irlanda Ortiz, 955 F.2d at 769; Gordils, 921
F.2d at 329 (noting that ALJ is not precluded from making commonsense judgments). Moreover, the sources assessing these GAF scores
were not long term treating sources, and Dr. Fontaine examined
Plaintiff only once.
Although a close question, the Court finds that, in the
circumstances of this case, the ALJ was justified in relying on the
assessments of the DDS reviewing sources. Accordingly, Plaintiff’s
first claim of error is rejected.
II.

The ALJ’s credibility finding
The

ALJ

found

that,

although

Plaintiff’s

medically

determinable impairments could reasonably be expected to cause the
symptoms

alleged,

persistence,

14

and

his

statements

limiting

effects

concerning
of

those

the

intensity,

symptoms

were

See n.5.

15

Dr. Fontaine also stated, however, that “[w]ith cognitive
behavioral therapy, as well as medication, [Plaintiff’s] prognosis should
improve.” (R. at 299)

24

inconsistent

with

the

ALJ’s

RFC

determination.

(R.

at

12)

Plaintiff contends that the ALJ’s credibility findings are not
supported by substantial evidence.

Plaintiff’s Mem. at 10.

An ALJ is required to investigate “all avenues presented that
relate to subjective complaints ....”
addition,

“whenever

the

Avery, 797 F.2d at 28.16

individual’s

statements

about

In
the

intensity, persistence, or functionally limiting effects of pain or
other symptoms are not substantiated by objective medical evidence,
the adjudicator must make a finding on the credibility of the
individual’s statements based on a consideration of the entire case
record.”

SSR 96-7p, 1996 WL 374186, at *2 (S.S.A.).

It is not sufficient for the adjudicator to make a
single, conclusory statement that “the individual’s
16

Specifically, the ALJ is directed to consider, in addition to the
objective medical evidence, the following factors:
1.
2.
3.
4.
5.
6.

7.

The individual’s daily activities;
The location, duration, frequency, and intensity of the
individual’s pain or other symptoms;
Factors that precipitate and aggravate the symptoms;
The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to
alleviate pain or other symptoms;
Treatment, other than medication, the individual
receives or has received for relief of pain or other
symptoms;
Any measures other than treatment the individual uses or
has used to relieve pain or other symptoms (e.g., lying
flat on his or her back, standing for 15 to 20 minutes
every hour, or sleeping on a board); and
Any other factors concerning the individual’s functional
limitations and restrictions due to pain or other
symptoms.

Avery, 797 F.2d at 29; see also 20 C.F.R. § 404.1529(c)(3) (2011)
(listing factors relevant to symptoms, such as pain, to be considered);
SSR 96-7p, 1996 WL 374186, at *3 (S.S.A.) (same).

25

allegations
have
been
considered”
or
that
“the
allegations are (or are not) credible.” It is also not
enough for the adjudicator simply to recite the factors
that are described in the regulations for evaluating
symptoms.
The determination or decision must contain
specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator
gave to the individual’s statements and the reasons for
that weight.
Id.

The

ALJ’s

credibility

finding

is

generally

entitled

deference, especially when supported by specific findings.

to
See

Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 195 (1st
Cir. 1987)(citing DaRosa v. Sec’y of Health & Human Servs., 803
F.2d 24, 26 (1st Cir. 1986)).
Here, the ALJ summarized Plaintiff’s hearing testimony as
follows:
At the hearing, the claimant testified that he has been
experiencing recurrent depression characterized by angry
outbursts and being in a “dark place” where suicide is
contemplated at least a “couple times a month.”
The
claimant asserts being sober from alcohol for at least 4
years though his depressive and attentional symptoms have
worsened since then. The claimant is taking multiple
psychiatric medications including Effexor.
This
medication causes tiredness as a side-effect.
As to
functional limitations, the claimant stated that he has
focus/concentration problems and difficulty getting along
with other people.
He does continue to drive.
In
describing his daily activities, the claimant noted that
he lives in a “RV” in his mother-in-law[’]s driveway. He
does not shower regularly and doesn’t get dressed
occasionally.
Although his wife does most of the
household chores, the claimant admits to sweeping floors
and taking out the trash. He does enjoy “tinkering” with
old scrap computers.
The claimant takes 2 long (2-3
hours each) naps during the day. He does not associate
with anyone other than his wife. The claimant does go
out to the park with his dog once or twice a month.
26

(R. at 11-12)

It is clear from the preceding passage that the ALJ

contemplated the required factors.

See Avery 797 F.2d at 29.

He

did not make a single, conclusory statement regarding consideration
of Plaintiff’s allegations or their credibility, nor did the ALJ
simply recite the factors.
regarding

his

activities

The ALJ noted Plaintiff’s statements
of

daily

living;

the

frequency

and

intensity of his depressive symptoms; the fact that he takes
multiple psychotropic medications, including Effexor, and that
tiredness is a side effect thereof; his functional limitations; and
his lack of social activities.
In addition, at the hearing Plaintiff was asked about his
recent

suicide

attempt

and

whether

anything

precipitated

his

suicidality:
Q

When was
suicidal?

A

Apparently two weeks prior.

Q

Does that just come over you or does something
trigger it?

A

Yes. No, sort of just -- My doctors asked you, you
don’t -- Can you remember what particularly
happened?
Anything happened, when an episode
happen -- No.

(R. at 32)

the

last

time

before

that

you

felt

Accordingly, the Court finds that the ALJ considered

the requisite criteria in evaluating Plaintiff’s credibility.

See

Avery, 797 F.2d at 29; 20 C.F.R. § 404.1529(c)(3); SSR 96-7p, 1996
WL 374186, at *3.

27

Plaintiff’s main contention appears to be that the only
specific reason the ALJ gave for disbelieving Plaintiff “was his
having applied for unemployment compensation, which, according to
the ALJ[,] ‘indicated that he was “ready, able and willing to work”
[and] is clearly inconsistent with these disabling allegations.’”
Plaintiff’s Mem. at 10-11 (quoting (R. at 13))(second alteration in
original).

According to Plaintiff, “[t]here was no evidence

before the ALJ that [Plaintiff] alleged he was able to work full
time when he applied for unemployment, or that he believed he could
hold a job for any significant length of time.”

Id. at 11.

Regarding this issue, the ALJ questioned Plaintiff as follows:
Q

Looked like you collected
unemployment last year too?

A

Yes.

Q

Is that still going on?

A

No.

Q

Okay.

A

-- awhile ago.

Q

You do recognize when you collect unemployment, you
[are] certifying you’re ready, willing and able to
work?

A

I told that to my -- several of my doctors and they
said, Well you really had no choice, you know. I
had no income and they --

Q

Okay. ...

(R. at 24-25)

a

little

bit

of

That stopped --

The ALJ determined that “[i]n terms of his alleged

severe symptoms and disabling limitations, the claimant’s receipt
28

of

‘unemployment

compensation’

during

the

alleged

period

of

disability which indicated that he was ‘ready, able and willing to
work’ is clearly inconsistent with these disabling allegations.”
(R. at 13)(internal citation omitted).

The Court finds that the

ALJ could reasonably have reached this conclusion.

See Irlanda

Ortiz, 955 F.2d at 769; see also Barrett v. Shalala, 38 F.3d 1019,
1024 (8th Cir. 1994)(noting that “in order to be eligible for
unemployment

benefits,

[the

plaintiff]

was

required

to

sign

documents stating that he was capable of working and seeking work”
and finding that “[t]his statement is clearly inconsistent with
[his] claim of disability during the same period”).
Plaintiff did not just apply for unemployment benefits, see
Plaintiff’s Mem. at 10, 11, by his own admission he collected
benefits, (R. at 25).

In order to do so, he certified that he was

ready, willing, and able to work.

(Id.)

Thus, contrary to

Plaintiff’s assertion, see Plaintiff’s Mem. at 11, there was
evidence before the ALJ, in the form of Plaintiff’s testimony, from
which the ALJ could reasonably have concluded that Plaintiff’s
statements were inconsistent.

Nor is it relevant what Plaintiff

believed regarding his ability to work.

See id.

What is relevant

is whether the ALJ had a reasonable basis for his credibility
finding and whether he articulated that reason.

The Court answers

these questions in the affirmative.
In addition, the ALJ noted, albeit in a different context,

29

that Plaintiff’s “own psychiatric clinicians at the Rhode Island
Hospital Department of Psychiatry have predominantly noted GAF’s
between

‘58’

symptoms.”17

and

‘65’

consistent

with

only

mild

to

(R. at 13)(internal citations omitted).

moderate
While GAF

scores are not determinative, see 65 FR 50746, 50764-65 (declining
to endorse the use of the GAF scale in Social Security disability
programs and stating that “[i]t does not have a direct correlation
to the severity requirements in our mental disorders listings”),
they are certainly something which an ALJ may consider in making a
credibility finding, see Chanbunmy v. Astrue, 560 F.Supp.2d 371,
383 (E.D. Pa. 2008)(noting that GAF score “is intended to rate a
patient’s current general overall functioning, which is useful in
tracking

a

patient’s

progress

in

global

terms”);

id.

at

385

(“Courts have ... affirmed ALJs’ decisions of nondisability in
cases wherein claimants have GAFs in the range of 51-60.”).
The

Court

concludes

that

the

ALJ

evaluated

Plaintiff’s

credibility in accordance with the requirements and that the ALJ
adequately

stated

his

rationale

for

his

credibility

finding.

Therefore, the Court also rejects Plaintiff’s second claim of
error.
Summary
The

Court

finds

that

the

ALJ’s

mental

RFC

findings

are

supported by substantial evidence in the record. The Court further

17

See n.4.

30

finds

that

the

ALJ’s

credibility

evaluation

is

supported

by

substantial evidence.
Conclusion
The
Plaintiff

Court
is

concludes

not

disabled

that

the

within

ALJ’s

the

determination

meaning

supported by substantial evidence in the record.

of

/s/ David L. Martin
DAVID L. MARTIN
United States Magistrate Judge
June 4, 2012

31

Act

is

Accordingly, I

order that Defendant’s Motion to Affirm be granted.
that Plaintiff’s Motion to Remand be denied.

the

that

I also order