Cardin v. Colvin

Filing 17

MEMORANDUM AND ORDER adopting 13 Report and Recommendations, denying Plaintiff's 9 Motion to Reverse Decision of the Commissioner; and granting Defendant's 11 Motion to Affirm the Decision of the Commissioner. So Ordered by Judge Mary M. Lisi on 6/5/2014. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
SMITH A. CARDIN,
Plaintiff,
v.

C.A. No. 13-170-ML

CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

MEMORANDUM AND ORDER
MARY M. LISI, District Judge.
The plaintiff in this case (the “Plaintiff”) seeks a reversal
of

a

disability

determination

by

the

Commissioner

of

Social

Security (the “Defendant”), pursuant to which the Plaintiff’s fifth
application for Social Security Disability Insurance benefits
(“DIB”)

and

Supplemental

Security

Income

benefits(“SSI”)

was

denied. The matter is before the Court on the Plaintiff’s objection
(Dkt. No. 14) to a Report and Recommendation (“R&R”) issued by a
Magistrate Judge on March 27, 2014 (Dkt. No. 13). The Plaintiff
objects to the recommendation that her motion to reverse the
decision of the Commissioner be denied and that the Defendant’s
motion to affirm the decision be granted. R&R at 32. The Plaintiff
raised no objection to the Magistrate Judge’s finding that this
Court

has

no

jurisdiction

to
1

review

the

refusal

by

the

Administrative Law Judge (“ALJ”) to reopen the Plaintiff’s four
prior applications.1 R&R at 2. The Defendant has submitted a surreply to the Defendant’s objection to the R&R (Dkt. No. 16).
I. Standards of Review
In considering a party’s objection to an R&R on a Social
Security appeal, more than one standard of review comes into play.
First, “when a magistrate judge passes upon a dispositive motion,
he or she may only issue a recommended decision, and if there is a
timely objection, the district judge must engage in de novo
review.” PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st
Cir. 2010). Pursuant to 28 U.S.C. § 636, this Court “shall make a
de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1)(C). The Court

“may accept, reject, or

modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” Id.; Fed. R. Civ. P. 72(b)(3).
Secondly, the Court’s “judicial review of a Social Security
claim 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). Although questions of law are reviewed de novo, the Court
1

The Plaintiff’s request to reopen her prior four applications
was limited to a statement by her counsel at the September 6, 2011
hearing before the ALJ that the Plaintiff had “a mental illness
that prevented her from following through on everything.” Tr. 33.
2

must “defer to the Commissioner’s findings of fact so long as they
are supported by substantial evidence.” Id. The determination of
substantiality is made “upon an evaluation of the record as a
whole.” Brown v. Apfel, 71 F.Supp.2d 28, 30 (D.R.I. 1999)(citing
Ortiz v. Sec’y of Health and Human Serv., 955 F.2d 765, 769 (1st
Cir. 1991)(“We must uphold the Secretary’s findings ... if a
reasonable mind, reviewing the evidence in the record as a whole,
could

accept

it

as

adequate

to

support

his

conclusion.”).

Moreover, the Court “must avoid reinterpreting the evidence or
otherwise

substituting

its

own

judgment

for

that

of

the

Commissioner.” Brown v. Apfel, 71 F. Supp.2d at 30-31 (citing Colon
v. Sec’y of Health and Human Serv., 877 F.2d 148, 153 (1st Cir.
1989)).
If the Commissioner’s decision is supported by substantial
evidence in the record, the decision must be confirmed “even if the
record arguably could justify a different conclusion.” Rodriguez
Pagan v. Sec’y of Health and Human Serv., 819 F.2d 1, 3 (1st Cir.
1997)(per curiam), cert. denied, 484 U.S. 1012, 108 S.Ct. 713, 98
L.Ed.2d 663 (1988) (citing Lizotte v. Sec’y of Health and Human
Serv., 654 F.2d 127, 128 (1st Cir.1981)); Vazquez-Rosario v.
Barnhart, 149 Fed. Appx. 8, 10 (1st Cir. 2005)(noting that “[i]t is
the ALJ’s prerogative to resolve conflicting evidence.”) Although
the ALJ may not “ignore medical evidence and substitute his own
views for uncontroverted medical opinion,” Nguyen v. Chater, 172

3

F.3d

31,

34

(1st

Cir.1999)

(per

curiam),

the

Commissioner’s

findings of fact, if adequately supported, are conclusive. Brown v.
Apfel, 71 F. Supp.2d at 30.
II. Factual Background and Procedural History
The background facts and travel of the case have been set
forth in thorough detail in the R&R; therefore, only a brief
summary of the most pertinent facts and events will be summarized
herein. At the time the R&R was issued, Plaintiff was a 41-year old
female who has alleged various mental impairments, including major
depressive disorder, general anxiety disorder, panic disorder,
possible personality disorder, as well as HIV positive status and
a number of physical impairments. On October 23, 2009, after the
Plaintiff’s four prior applications for DIB and SSI had been
denied–the last one on August 18, 2008 (Tr. 17-18)–she filed a
fifth application for DIB and SSI. Tr. 15. Her fifth application
was denied on February 15, 2010 and, on reconsideration, denied
again on August 3, 2010. Id. Upon the Plaintiff’s request, the ALJ
conducted

a

hearing

on

the

Plaintiff’s

fifth

application

on

September 6, 2011. Id. The Plaintiff was represented by counsel who
also represented her during her third and fourth applications.
In her October 23, 2009 application, the Plaintiff claimed
that she had been unable to work because of disabling conditions
since September 20, 2004, when she was hospitalized for nine days
at Butler Hospital for a mental “breakdown.” Tr. 15, 155, 351. The

4

Plaintiff alleged that she was limited in her ability to work
because

of

anxiety

disorder,

depression,

fatigue

related

to

restless leg syndrome and HIV medication, as well as arm, hand, and
foot pain. Tr. 163. At the time of the September 6, 2011 hearing,
the Plaintiff was living with her fiancé and 11-year old son, who
has been diagnosed with autism and receives disability benefits.
Tr. 19.
According to the Plaintiff’s testimony at the hearing, she
attended college for some time, obtained an EMT certificate, and
held a special drivers license. Tr. 35. For a while, she worked as
a limo driver until she had an altercation with the owner of the
company.

Tr.

36.

The

Plaintiff

also

related

that

she

had

difficulties handling stress and getting along with co-workers and
supervisors. Tr. 41. Over a fifteen-year period, she held a number
of

other

part-time

jobs,

at

least

three

of

which

ended

in

termination after disagreements with her respective supervisors.
Tr. 51-52. During her September 2004 hospitalization, the Plaintiff
expressed that she was working part-time so she could take care of
her son. Tr. 21-22, 351.
The Plaintiff also stated at the hearing that she was able to
stand comfortably only for twenty minutes, lift less than ten
pounds, had problems with her dominant right hand, and would have
difficulties performing repetitive pushing or pulling of arm or leg
controls. Tr. 37-41. She acknowledged, however, that she did not

5

require help bathing and dressing. It was unclear how long she
could walk or whether she could reach above her shoulders, as she
reported that she did not walk anywhere and did not try to reach
up. Id. Based on the evidence presented to him, the ALJ concluded
that the Plaintiff’s “medically determinable impairments could not
reasonably be expected to cause the alleged symptoms to the degree
alleged” and he found the Plaintiff’s statements regarding the
severity of the symptoms not credible. Tr. 20.
Regarding the Plaintiff’s alleged mental impairments, the ALJ
referred
admission

in
to

his

written

Butler

in

opinion
September

to

Plaintiff’s

2004;

a

psychiatric

neuropsychological

evaluation by treating psychologist Jack Demick, PhD., on August
25, 2005; Dr. Demick’s mental residual functional capacity (“RFC”)
questionnaire from February 20, 2006; a July 10, 2008 assessment by
Louis Turchetta, EdD, an impartial medical examiner; a June 28,
2010 RFC evaluation by Brian Hickey, RN, of West Bay Psychiatric
Associates; and an August 17, 2011 assessment by Danielle DeSantis,
PsyD.

Tr. 22-23.

The ALJ noted that, after the Plaintiff was psychiatrically
hospitalized at Butler, she was quickly stabilized and discharged
and that Plaintiff’s symptoms have been consistently managed with
medication. Tr. at 22. The ALJ pointed out that, although Dr.
Demick opined that the Plaintiff’s mental impairments precluded her
from working with others or sustaining a normal work schedule,

6

those identified limitations were not accepted by reviewing state
agency physicians. Id. The ALJ also noted that both Dr. Demick’s
and

Dr.

Turchetta’s

GAF

[Global

Assessment

of

Functioning]

assessments indicated that the Plaintiff had moderate limitations
only.2 Id.
The Plaintiff’s treatment record from West Bay Psychiatric
Associates demonstrated that her mental impairment was stabilized
with medication; it was also noted that there were large gaps in
the Plaintiff’s treatment, including a period of no treatment
between January and June 2010 (which the Plaintiff attributed to a
lack of insurance). Id. The ALJ noted that, as a non-physician,
Nurse

Hickey

was

not an

accepted

medical

source

for

opinion

evidence. However, the ALJ’s declining to give Nurse Hickey’s
assessment any significant probative value was based primarily on
the grounds that the assessment was not supported by the medical
record; that the Plaintiff was off her medication in June 2010; and
that her subsequent four visits reflected no comprehensive mental
status examinations. Tr. at 23. Nurse Hickey’s treatment notes from
December 2010 also reflected that the Plaintiff was clinically
stable and he assessed her with only a mild impairment. Id.
After the December 2010 assessment, the Plaintiff did not seek

2

It is undisputed that the Commissioner advised adjudicators in
2013 that GAF scores are not dispositive on the issue of
disability. The ALJ’s decision in this case was rendered in 2011,
before the Commissioner’s decision on this issue.
7

treatment until June 20, 2011. Although Dr. DeSantis opined on
August 17, 2011 that the Plaintiff was significantly more limited
than the ALJ concluded, the ALJ noted that no documents were
submitted regarding any treatment that the Plaintiff may have
received; Dr. DeSantis’s assessment was based entirely on the
Plaintiff’s allegations; and the only record of treatment was a
brief intake evaluation.
In contrast to the functional limitations alleged by the
Plaintiff, the record reviewed by the ALJ revealed that the
Plaintiff was far more engaged in “activities of daily living” than
she asserted. Tr. 23-24. Inter alia, the Plaintiff was able to care
for her own needs and those of her son; she met and became engaged
to her fiancé in 2008; she did perform at least some household
chores; and, although she prefers to be at home rather than
involved in social activities, she did testify that she was
socially active with friends and her fiancé. Tr. 24.
After

considering

the

evidence,

the

testimony

by

the

Plaintiff, and the examination of a vocational expert (who was
cross-examined by Plaintiff’s counsel at the hearing), the ALJ
concluded that (1) the August 18, 2008 determination remained
administratively final because there was “no new and material
evidence or other appropriate basis to justify reopening and
revising” the denial of the Plaintiff’s prior applications, Tr. 1718; and (2) the Plaintiff has not been under a disability, as

8

defined in the Social Security Act, because (a) she “does not have
an impairment or combination of impairments that meets or medically
equals, the severity of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926),” and (b) she had “the residual
functional capacity to perform light work as defined in 20 CFR
404.1567(b and 416.967(b).” Tr. 18, 26.
On appeal from the ALJ’s decision, the Plaintiff relied
primarily on her alleged severe mental illnesses as the basis for
her claims. Pltf.’s Mem. Mot. Reversal at 4 (Dkt. No. 9-1). In her
objection to the R&R, the Plaintiff does not address the Magistrate
Judge’s determination that this Court has no jurisdiction to review
the ALJ’s denial of reopening the Plaintiffs’ prior applications.
Accordingly, the prior determination that the Plaintiff was not
disabled between September 20, 2004 and August 18, 2008 is res
judicata. 20 C.F.R. § 404.957(c)(1).
Contrary to the Plaintiff’s assertions in her motion to
reverse the Commissioner’s decision and in her appeal from the
Magistrate Judge’s R&R, the record reveals that the ALJ did not
“unfairly and unsustainably” reject the two treating psychologists’
opinions. Pltf.’s Obj. at 2 (Dkt. No. 14). With respect to Dr.
Demick’s 2006 assessment, the ALJ concluded that Dr. Demick’s
treatment

notes

were

inconsistent

with

the

doctor’s

opinion

regarding the severity of the Plaintiff’s impairment. Moreover,

9

subsequent diagnostic testing by Dr. Turchetta indicated that the
Plaintiff’s prognosis depended on the Plaintiff’s maintaining a
comprehensive treatment approach to address her depression and
anxiety, Tr. 656, a conclusion which is borne out by the record
overall.
With regard to Dr. DeSantis’s opinion, it was clear from the
evidence submitted to the ALJ that the Plaintiff had just begun
treating with Dr. DeSantis after a six-months gap in mental health
treatment. Documentation was limited to a June 20, 2011 intake
form, Tr. 818-822, and an August 17, 2011 mental RFC questionnaire,
according

to

which

the

Plaintiff

had

participated

in

weekly

sessions3 since her first intake. Tr. 823-827. No treatment notes
or other documentation was submitted and, as the ALJ correctly
pointed out, the RFC questionnaire appears to be based primarily,
if not solely, on the Plaintiff’s self-reporting of her experience.
When reviewed against the entire record, the ALJ’s ultimate
determination regarding the Plaintiff’s disability and his decision
to give little weight to the opinions of Dr. Demick and Dr.
DeSantis were supported by substantial evidence. Although the
Plaintiff’s mental health history indicates that she has received
treatment for depression for many years, her medical records also

3

It is unstated whether the therapist referenced in the RFC
form is Dr. DeSantis. The form also states that the Plaintiff “will
see [a] nurse practitioner (Maureen) for med maintenance” on August
23 for a first visit. Tr. 823.
10

reveal that her symptoms were consistently managed with medication.
According to the Plaintiff’s testimony, she was able to hold down
a number of jobs, provide care for her son, and engage in social
activities. Based on a review of the record, the Court concludes
that the ALJ’s decision to give little weight to the opinion of Dr.
Demick, Dr. DeSantis, and Nurse Hickey was well-reasoned and the
ALJ’s ultimate conclusion that the Plaintiff has not been under a
disability as defined by the Social Security Act was supported by
substantial evidence.
Conclusion
For the reasons stated herein, the Commissioner’s decision is
AFFIRMED and the Plaintiff’s motion to reverse is DENIED.

SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
United States District Judge
June 5, 2014

11