Dixon v. Berryhill
Filing
14
ORDER denying 11 Motion to Reverse, Modify or Remand Decision of the Commissioner; granting 12 Motion to Affirm the Decision of the Commissioner; adopting 13 Report and Recommendations. So Ordered by Chief Judge William E. Smith on 3/21/2018. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
BRYAN KEITH DIXON,
)
)
Plaintiff,
)
v.
)
C.A. No. 17-77 WES
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
___________________________________)
ORDER
WILLIAM E. SMITH, Chief Judge.
In a Report and Recommendation (“R&R”) filed on February 23,
2018
(ECF
No.
13),
Magistrate
Judge
Patricia
A.
Sullivan
recommended that Plaintiff’s Motion To Reverse the Decision of the
Commissioner (“Motion To Reverse”) (ECF No. 11) be denied and that
Defendant’s Motion for an Order Affirming the Decision of the
Commissioner (“Motion To Affirm”) (ECF No. 12) be granted.
After
carefully reviewing the R&R and the relevant papers, and having
heard no objections, the Court ACCEPTS the R&R in its entirety and
adopts the recommendations and reasoning outlined therein.
The Court therefore GRANTS Defendant’s Motion To Affirm (ECF
No. 12) and DENIES Plaintiff’s Motion To Reverse (ECF No. 11).
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: March 21, 2018
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
BRYAN KEITH DIXON,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
:
:
:
:
:
:
:
:
C.A. No. 17-77WES
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
A “younger person” of thirty at the time of his administrative hearing, Plaintiff Bryan
Keith Dixon alleges that he is disabled due to bipolar disorder and attention deficit hyperactivity
disorder (“ADHD”), among other impairments. In his motion to reverse the Commissioner’s
decision denying Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”) under §§ 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g),
1383(c)(3) (the “Act”), Plaintiff claims that the Administrative Law Judge (“ALJ”) erred in
failing to include a limitation based on the alleged need to work in “some form of structured
programming,” as reflected in the explanation provided by the non-examining expert
psychologist for his initial-level mental review. Plaintiff also claims that the ALJ erred in failing
to include a limitation based on the statement that “he may wish to complete one task before
moving on to the next,” as reflected in a neuropsychological report prepared during a 2014
psychiatric hospitalization. In addition, Plaintiff disputes the limited weight afforded to the
opinions of a therapist he saw at the Kent Center. Because of these errors, Plaintiff contends that
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the ALJ’s residual functional capacity 1 findings are not supported by substantial evidence.
Defendant Nancy A. Berryhill (“Defendant”) has filed a motion for an order affirming the
Commissioner’s decision.
The matter has been referred to me for preliminary review, findings and recommended
disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the entire record, I find no
error. Accordingly, I recommend that Plaintiff’s Motion to Reverse the Decision of the
Commissioner (ECF No. 11) be DENIED and Defendant’s Motion for an Order Affirming the
Decision of the Commissioner (ECF No. 12) be GRANTED.
I.
Background 2
During childhood, Plaintiff received special education, was repeatedly arrested for assault
and for breaking into cars, abused cocaine and alcohol, and was diagnosed with schizoaffective
disorder, ADHD and depression. Tr. 514, 525, 640. After completing high school, Plaintiff was
criminally charged (ten arrests) with such offenses as disorderly conduct, burglary and cocaine
distribution. Tr. 555, 724. He used drugs including “cocaine, benzoes, all types, opioids, heroin,
hallucinogens, marijuana, ecstasy, and bath salts.” Tr. 587. Plaintiff’s work history was
sporadic, reflecting jobs, for example in 2011, as a dishwasher, which lasted for no more than
five to seven months. Tr. 45, 278-85. The most he ever earned in a single year was when he
worked as a dishwasher in 2011; his reported income was $8885. Tr. 207. His first disability
application was filed in 2003 and denied on reconsideration. Tr. 237. No material from that
application is in the record. Id.
1
Residual functional capacity is “the most you can still do despite your limitations,” taking into account “[y]our
impairment(s), and any related symptoms, such as pain, [that] may cause physical and mental limitations that affect
what you can do in a work setting.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
2
Because Plaintiff has placed in issue only his mental impairments, only they are discussed in this report and
recommendation.
2
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On October 20, 2011, Plaintiff was tazed by New Hampshire police after a chase that was
precipitated by his attempt to break into a car while he was high on bath salts; during this
incident, he fell and hit his head. Tr. 331, 361. He was hospitalized first at Wentworth-Douglas
Hospital and then at Massachusetts General Hospital (“MGH”) because of a very serious head
injury; he had surgery to address a brain hemorrhage and remained at MGH until November 16,
2011. Tr. 375. The record reflects that he appeared to have made a good recovery in that, by
November 9, 2011, he was responding “very well to Psych services,” and was able to follow
three-step commands, although his concentration was limited. Tr. 409. A mental status
examination performed on November 15, 2011, was largely normal although he was occasionally
sad, with constricted affect, and, while not depressed, he said his mood was “terrible” “b/c i am
missing a person.” Tr. 407 (doing well, with no agitation/behavioral outbursts). Treating staff
concluded that he displayed agitation deemed “2/2 to brain injury superimposed on an individual
who is impulsive and socially deviant at baseline.” Id.
After he was discharged from MGH, Plaintiff returned to Rhode Island and initiated a
primary care treating relationship at Primary Medical Group in November 2011. Tr. 506.
Within a month of discharge, he also filed his second disability application alleging onset in
January 2010. Tr. 215. The second application file contains a consultative examination report
from a psychologist, who found him capable of functioning in the low average range with
moderate depression, mild-to-moderate anxiety and “attention/concentration spans varied,” Tr.
518, as well as from a neurologist, who found hearing loss and tinnitus, mild gait imbalance and
brief positional vertigo from the head injury. Tr. 522. The claim was denied initially in April
2012, Tr. 71, and Plaintiff did not pursue it. After a hiatus without treatment from December
2011 through September 2012, in October, Plaintiff resumed treatment with Dr. Anna Filip, a
3
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family practitioner at Thundermist, at the suggestion of his attorney. Tr. 564-70. She prescribed
medication to treat depression and ADHD. Tr. 571. By December 5, 2012, her examination
reflects largely normal mental findings, including “able to sit still during visit, able to use full
sentences and can complete full thoughts . . . much improved since starting Adderall.” Tr. 564.
From January 2013 until June 2014, Plaintiff was in jail in New Hampshire. Tr. 28.
Based on statements reflecting psychosis (e.g., “I am the son of God”; “I was Batman and
became the Joker”), Plaintiff was found incompetent to stand trial 3 and sent to New Hampshire
Hospital for a competency/restoration evaluation. Tr. 525-26. There a neuropsychological
assessment was performed by Drs. Laura Flashman and Megan Baldasarre (“Flashman/
Baldasarre report”). Tr. 615-20. Their testing resulted in findings of “low average intellectual
abilities,” with relatively intact performance on such skills as memory and basic attention. Tr.
619. They opined that he appears to have “mild subcortical systems dysfunction,” potentially
attributable to “recent head injury” as well as to his “history of ADHD, bipolar illness and
polysubstance abuse.” Tr. 620. In its recommendations, the report suggests, “he may wish to
complete one task before moving on to the next, as he may have a harder time when he is trying
to multi-task or manage multiple projects at one time.” Id. The New Hampshire Hospital
discharge notes dated July 16, 2014, include the observation that, despite the refusal to accept
recommended psychiatric medications, during “the entire admission here,” “he was in excellent
behavioral control” and that, at discharge, he was “in stable condition.” Tr. 614. The discharge
summary reflects the conclusion of the treating staff that the Flashman/Baldasarre report showed
that “he was generally intact.” Tr. 613.
3
The record does not reveal the evidentiary foundation for this finding. Treating staff at the jail speculated that he
might be psychotic due to cocaine withdrawal, which can last for months or years. Tr. 525.
4
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In July 2014, Plaintiff was released by New Hampshire on probation back to Rhode
Island; he resumed care with Dr. Filip at Thundermist. Tr. 559. Two weeks later, he filed the
pending disability applications, resulting in a prompt file review by expert psychologist Dr. John
Warren. Tr. 86-96, 97-107. Meanwhile, Dr. Filip sent him for a medication evaluation to a
psychiatric nurse specialist, Nancy Shea. Nurse Shea’s August 27, 2014, mental status
observations were entirely normal, including focused attention, euthymic mood and appropriate
affect. Tr. 555. Opining soon afterwards, Dr. Warren explained his Step Two and Step Three
findings: “when sober and involved in some form of structured programming, claimant retains
the capacity to perform basic tasks and relate with others well enough for routine workplace
purposes.” Tr. 91, 102. Dr. Warren opined to an RFC that reflected Plaintiff’s ability to perform
simple routine, repetitive tasks and instructions, with moderate attentional, social and
adaptational limitations. Tr. 91-94, 102-04. Based, inter alia, on Dr. Warren’s opinion, the
claims were denied initially on September 29, 2014. Tr. 19.
In October 2014, Plaintiff initiated mental health treatment at the Kent Center with a
therapist, Ms. Stacie Barden, LCSW, and a psychiatrist, Dr. Liliya Koyfman. During intake with
Ms. Barden, Plaintiff stated that, “he thinks that therapy and psychiatry will help him be
approved [for SSDI] so ‘I can collect a check and live off the government,’” as well as (falsely,
as far as the MGH record reveals) that he was “in a coma for 19 days”; Ms. Barden recorded her
observation of psychosis and his reports of delusions. Tr. 610. According to the record, Plaintiff
never saw Ms. Barden again. 4 During Dr. Koyfman’s initial psychiatric evaluation in December
2014, Plaintiff told her that he was anxious about money, having been denied disability:
4
See n.9 infra.
5
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“Between lawsuit 5 and disability, I need some kind of money and then I can look for a job.” Tr.
725. On examination, Dr. Koyfman found decreased concentration, with Plaintiff focusing only
on his desire for a prescription for Adderall, depressed mood, but appropriate affect and thoughts
and no psychosis or suicidal/homicidal ideation. Tr. 726. In January 15, 2015, based, inter alia,
on an assessment performed by expert psychologist, Dr. Stephen Clifford, Plaintiff’s disability
applications were denied on reconsideration. Tr. 110-31. Dr. Clifford affirmed Dr. Warren’s
Step Two/Step Three explanation, and opined to the same RFC. Id.
Following the second denial, Plaintiff continued to see Dr. Filip and Dr. Koyfman. At a
June 2015 appointment with Dr. Koyfman, on examination, she noted appropriate affect, normal
concentration and impulse control, with no delusions or hallucinations; the only findings of any
significance are “dysphoric” mood and “spontaneous” speech. Tr. 686-87. By August 2015, Dr.
Filip’s mental status evaluation was essentially normal. Tr. 658. Dr. Koyfman sometimes
reported irritated mood and impaired impulse control and concentration, for example at the
appointment just before his ALJ hearing. Tr. 728.
After reconsideration, but before the ALJ’s hearing, in March and December 2015, Ms.
Barden submitted two substantially similar mental RFC assessments; both opine to Plaintiff’s
inability to attend for extended periods, to perform activities on a schedule or sustain an ordinary
routine, as well as to marked social impairments. Tr. 643-45, 696-97. Ms. Barden concludes
that, “it is not likely that [Plaintiff] would be capable of engaging in any substantial gainful
employment.” Tr. 642.
In his decision, the ALJ accepted as severe impairments substance addiction disorder,
personality disorder, anxiety and ADHD. Tr. 22. Affording “great weight” to the non-examining
5
Plaintiff sued the New Hampshire police in connection with the October 2011 head injury. Tr. 724.
6
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expert psychologists (Drs. Warren and Clifford) 6 and “little weight” to the therapist, Ms. Barden, he
found that Plaintiff’s RFC permitted him to perform simple, routine, repetitive work with social
limitations. Tr. 29-30. In reliance on the testimony of a vocational expert, the ALJ found that
Plaintiff could perform his prior work as a dishwasher, as well as office cleaner, both of which
require educational development Reasoning Level 2, and price marker, which can be done by an
individual limited to Reasoning Level 1. Accordingly, the ALJ concluded that Plaintiff was not
disabled. Tr. 33. This case followed.
II.
Standard of Review
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405(g). Substantial evidence is more than a scintilla – that is, the evidence must do
more than merely create a suspicion of the existence of a fact, and must include such relevant
evidence as a reasonable person would accept as adequate to support the conclusion. Ortiz v.
Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam); Rodriguez v.
Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981); Brown v. Apfel, 71 F.
Supp. 2d 28, 30 (D.R.I. 1999). Once the Court concludes that the decision is supported by
substantial evidence, the Commissioner must be affirmed, even if the Court would have reached
a contrary result as finder of fact. Rodriguez Pagan v. Sec’y of Health & Human Servs., 819
F.2d 1, 3 (1st Cir. 1987) (per curiam); see also Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th
Cir. 1991) (per curiam); Lizotte v. Sec’y of Health & Human Servs., 654 F.2d 127, 128 (1st Cir.
1981).
6
The ALJ also gave great weight to the non-examining psychologist who opined in connection with the second
application that was denied in 2012. This psychologist concluded that Plaintiff had RFC limitations similar to those
found by Drs. Warren and Clifford after considering a record that includes a time period overlapping with the period
in issue in this case. Tr. 29.
7
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The determination of substantiality is based upon an evaluation of the record as a whole.
Brown, 71 F. Supp. 2d at 30; see also Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d
192, 195 (1st Cir. 1987); Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (court also
must consider evidence detracting from evidence on which Commissioner relied). Thus, the
Court’s role in reviewing the Commissioner’s decision is limited. Brown, 71 F. Supp. 2d at 30.
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)). “[T]he resolution of conflicts in the evidence is for the Commissioner, not
the courts.” Id. at 31 (citing Richardson v. Perales, 402 U.S. 389, 399 (1971)). 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).
III.
Disability Determination
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. § 416(I); 20 C.F.R. § 404.1505. The impairment must be severe,
making the claimant unable to do previous work, or any other substantial gainful activity which
exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-1511.
A.
Five-Step Analytical Framework
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §
404.1520. First, if a claimant is working at a substantial gainful activity, the claimant is not
disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or
8
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combination of impairments that significantly limit physical or mental ability to do basic work
activities, then the claimant does not have a severe impairment and is not disabled. 20 C.F.R. §
404.1520(c). Third, if a claimant’s impairments meet or equal an impairment listed in 20 C.F.R.
Part 404, Appendix 1, the claimant is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant’s
impairments do not prevent doing past relevant work, the claimant is not disabled. 20 C.F.R. §
404.1520(e)-(f). Fifth, if a claimant’s impairments (considering RFC, age, education and past
work) prevent doing other work that exists in the local or national economy, a finding of disabled
is warranted. 20 C.F.R. § 404.1520(g). Significantly, the claimant bears the burden of proof at
Steps One through Four, but the Commissioner bears the burden at Step Five. Wells v. Barnhart,
267 F. Supp. 2d 138, 144 (D. Mass. 2003) (five step process applies to both DIB and SSI
claims). That is, once the ALJ finds that a claimant cannot return to the prior work, the burden
of proof shifts to the Commissioner to establish that the claimant could perform other work that
exists in the local or national economy. Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). To
meet this burden, the ALJ must develop a full record regarding the vocational opportunities
available to a claimant. Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989).
B.
Treating Physicians and Other Sources
Substantial weight should be given to the opinion, diagnosis and medical evidence of a
treating physician unless there are good reasons to do otherwise. See Rohrberg v. Apfel, 26 F.
Supp. 2d 303, 311 (D. Mass. 1998); 20 C.F.R. §§ 404.1527(c), 416.927(c). If a treating
physician’s opinion on the nature and severity of a claimant’s impairments is well-supported by
medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with
the other substantial evidence in the record, the ALJ must give it controlling weight. Konuch v.
Astrue, No. 11-193L, 2012 WL 5032667, at *4-5 (D.R.I. Sept. 13, 2012); 20 C.F.R. §§
9
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404.1527(c)(2), 416.927(c)(2). The ALJ may discount a treating physician’s opinion or report
regarding an inability to work if it is unsupported by objective medical evidence or is wholly
conclusory. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275-76 (1st Cir.
1988). The ALJ’s decision must articulate the weight given, providing “good reasons” for the
determination. See Sargent v. Astrue, No. CA 11–220 ML, 2012 WL 5413132, at *7-8, 11-12
(D.R.I. Sept. 20, 2012) (where ALJ failed to point to evidence to support weight accorded
treating source opinion, court will not speculate and try to glean from the record; remand so that
ALJ can explicitly set forth findings).
When a treating physician’s opinion does not warrant controlling weight, the ALJ must
nevertheless weigh the medical opinion based on the (1) length of the treatment relationship and
the frequency of examination; (2) nature and extent of the treatment relationship; (3) medical
evidence supporting the opinion; (4) consistency with the record as a whole; (5) specialization in
the medical conditions at issue; and (6) other factors which tend to support or contradict the
opinion. 20 C.F.R §§ 404.1527(c), 416.927(c). A treating physician’s opinion is generally
entitled to more weight than a consulting physician’s opinion. See 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). If a treating source is not accorded controlling weight, the ALJ must apply the
factors listed in 20 C.F.R. § 404.1527(c) for DIB claims or 20 C.F.R. § 416.9279(c) for SSI
claims. As SSR 96-2p provides:
The notice of the determination or decision must contain specific reasons for the
weight given to the treating source’s medical opinion, supported by the evidence
in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s
medical opinion and the reasons for that weight.
SSR 96-2p, 1996 WL 374188 (July 2, 1996). The regulations confirm that, “[w]e will always
give good reasons in our notice of determination or decision for the weight we give your treating
10
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source’s opinion.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). However, where a treating
physician has merely made conclusory statements, the ALJ may afford them such weight as is
supported by clinical or laboratory findings and other consistent evidence of a claimant’s
impairments. See Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986).
A treating source who is not a licensed physician or psychologist is not an “acceptable
medical source.” 20 C.F.R. §§ 404.1513, 416.913; SSR 06-03p, 2006 WL 2263437, at *2 (Aug.
9, 2006). Only an acceptable medical source may provide a medical opinion entitled to
controlling weight to establish the existence of a medically determinable impairment. SSR 0603p, 2006 WL 2263437, at *2. An “other source,” such as a nurse practitioner or licensed
clinical social worker, is not an “acceptable medical source,” and cannot establish the existence
of a medically determinable impairment, though such a source may provide insight into the
severity of an impairment, including its impact on the individual’s ability to function. SSR 0603p, 2006 WL 2263437, at *2-3. In general, an opinion from an “other source” is not entitled to
the same deference as an opinion from a treating physician or psychologist. Id. at *5.
Nevertheless, the opinions of medical sources who are not “acceptable medical sources” are
important and should be evaluated on key issues such as severity and functional effects, along
with other relevant evidence in the file. Id. at *4.
The ALJ is required to review all of the medical findings and other evidence that support
a medical source’s statement that a claimant is disabled. However, the ALJ is responsible for
making the ultimate determination about whether a claimant meets the statutory definition of
disability. 20 C.F.R. §§ 404.1527(d), 416.927(d). The ALJ is not required to give any special
significance to the status of a physician as treating or non-treating in weighing an opinion on
whether the claimant meets a listed impairment, a claimant’s residual functional capacity
11
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(“RFC”), see 20 C.F.R. §§ 404.1545-46, 416.945-46, or the application of vocational factors
because that ultimate determination is the province of the Commissioner. 20 C.F.R. §§
404.1527(d), 416.927(d); see also Dudley v. Sec’y of Health & Human Servs., 816 F.2d 792, 794
(1st Cir. 1987) (per curiam).
IV.
Analysis
A.
Limitations Based on Structure and One-Task-at-a-Time Reasoning
Plaintiff asks the Court to focus on two sentences in the opinions of two sources. First,
he highlights a sentence in the Step Two/Three explanation by the non-examining expert
psychologist, Dr. Warren, which was affirmed by the non-examining psychologist at the
reconsideration phase, Dr. Clifford. The sentence is as follows:
Overall, a rather chronic clinical picture indicating that when sober and involved
in some form of structured programing, claimant retains the capacity to
perform basic tasks and relate with others well enough for routine workplace
purposes.
Tr. 91, 102, 115, 126 (emphasis added). Plaintiff argues that this sentence must be interpreted as
cabining Dr. Warren’s RFC, meaning that Dr. Warren really opined that Plaintiff can perform
simple tasks only in a structured setting, which is inconsistent with the ability to engage in
substantial gainful activity. Second, Plaintiff points to the Flashman/Baldasarre report, which
states:
[H]e may wish to complete one task before moving on to the next, as he may
have a harder time when he is trying to multi-task or manage multiple projects at
one time.
Tr. 620 (emphasis added). Plaintiff asks the Court to interpret this Flashman/Baldasarre
suggestion as a functional limitation to performing one task at a time, which he asks the Court to
find amounts to an RFC that precludes “simple, repetitive work” at jobs that require Reasoning
Levels 1 or 2.
12
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Both arguments fail for the same reason. The non-examining expert psychologists
opined to function-by-function limitations, comprising Plaintiff’s RFC. All of the medical
information that informed Dr. Warren’s comment about “structured programming” was also
considered and incorporated into his RFC opinion.7 Dr. Warren could have opined to a more
limited RFC by adding the need to work in a “highly structured setting,” but he did not. See
Lyons v. Colvin, No. 7:13-CV-00614, 2014 WL 4826789, at *10 (N.D.N.Y. Sept. 29, 2014)
(inability to function outside a highly structured setting requires remand for further
consideration). Dr. Clifford reviewed the same records (and more), noted Dr. Warren’s
observation about “structured programming,” and affirmed both it and Dr. Warren’s RFC
findings “as written.” Tr. 115, 126, 118, 129. Like Dr. Warren, Dr. Clifford did not include an
RFC limitation to work only in a “highly structured setting.” Similarly, Dr. Warren’s file review
specifically referenced the records from New Hampshire Hospital, which included the
Flashman/Baldasarre report (as well as the Hospital discharge summary that interpreted the
Flashman/Baldasarre report as showing that “he was generally intact”). 8 Tr. 613. Deploying his
7
Plaintiff’s argument about the need for structure also fails because, as the Commissioner correctly points out,
Plaintiff misinterprets Dr. Warren’s reference to “structured programming” by converting its meaning into a
reference to work in a “structured setting.” Rather, it seems clear that Dr. Warren’s words meant what he wrote –
that Plaintiff can perform simple work when he is sober and getting treatment, to include “structured programming,”
such as outpatient psychiatric care. This interpretation of the phrase “structured programming” is consistent with its
use in the case law. See, e.g. Pelletier v. Colvin, No. 13-651, 2015 WL 247711, at *4 n.3 (D.R.I. Jan. 20, 2015)
(“Partial hospitalization is a structured program of outpatient psychiatric treatment provided as an alternative to
inpatient psychiatric care.”) (citation omitted); Kosiski v. Frakes, No. 16-345, 2017 WL 401826, at *3 (D. Neb. Jan.
30, 2017) (sex offender treatment as an example of “structured programming”); Barber v. Hartley, No. 10-484, 2010
WL 3463794, at *7 (E.D. Cal. Sept. 1, 2010) (Alcoholics Anonymous as an example of “structured programming”).
8
Plaintiff’s reliance on the Flashman/Baldasarre report also is unavailing because the quoted sentence is clearly a
suggestion, not a functional limitation. See Mills v. Apfel, 84 F. Supp. 2d 146, 149 n.6 (D. Me. 2000) (“Although
Dr. Doane concedes that Mills may have difficulties standing for an extended period or walking without stopping, he
never concludes that these are significant limitations”) (emphasis in original). In any event, as Plaintiff’s brief
concedes, ECF No. 11 at 17, the argument does not make sense: Reasoning Level 1 requires commonsense
understanding to carry out simple one or two step instructions, while the vocational expert testified that Plaintiff
could work as a cleaner, which requires only Reasoning Level 1. See Meissl v. Barnhart, 403 F. Supp. 2d 981, 984
(C.D. Cal. 2005) (“reasoning level of one indicates, both by the fact that it is the lowest rung on the development
scale as well as the fairly limited reasoning required to do the job, as applying to the most elementary of
occupations; only the slightest bit of rote reasoning being required”). Thus, even if Flashman/Baldasarre intended
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expertise in psychology, Dr. Warren interpreted the New Hampshire Hospital findings, along
with the rest of the record, and converted them into his function-by-function RFC; he did not
include a reasoning limitation restricting Plaintiff to the ability to do only one task at a time. Dr.
Clifford reviewed the same records (and more) and reached the same opinion.
I find no error in the ALJ’s reliance on the Warren/Clifford RFC conclusions and do not
recommend remand based on these arguments. Bianco v. Astrue, No. 09-021, 2010 WL
2382855, at *12 (D.R.I. Apr. 20, 2010).
B.
Barden Opinions
The ALJ’s decision states that, “[l]ittle evidentiary weight is given to the mental residual
functional capacity offered by one of the claimant’s treating therapist, Stacey Barden, LCSW.”
Tr. 30. As a reason, the ALJ concluded:
While Ms. Barden’s determinations are valuable given her treatment history with
the claimant, the extent of her opinions are not consistent with the medical
evidence of record when viewed in its entirety.”
Tr. 30 (citing records from Thundermist and Kent Center). Plaintiff contends that this case must
be remanded because the ALJ erred in not affording controlling weight or, at least, great weight
to the Barden opinions. As grounds, he asks the Court to consider Dr. Koyfman’s mental status
examination findings, which often include the observations of impaired impulse control, insight
and judgment, as well as occasionally impaired memory. He also asks the Court to credit his
own statements, all of which he claims are consistent with and supportive of the Barden
opinions.
There are serious problems with this argument. For starters, Ms. Barden is a nonacceptable medical source. See Alcantara v. Astrue, 257 F. App’x 333, 334-35 (1st Cir. 2007).
their suggestion as an RFC limitation, it would appear that an individual who performs better by doing one task at a
time could still perform at least one of the jobs on which the ALJ relied.
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Thus, Plaintiff’s argument that her opinions are entitled to the controlling weight potentially
available to a treating physician or psychologist pursuant to SSR 96-2p(6) is simply unavailing.
SSR 06-03p. Rather, at best, the opinion of a therapist like Ms. Barden may be used to provide
“evidence about the severity and effects of impairment, as well as a general source of evidence.”
Alcantara, 257 F. App’x at 334-35. Further, while the ALJ assumed that Ms. Barden had a
treating relationship with Plaintiff, the record reflects only a single encounter, making it
impossible to ascertain the frequency with which he was seen or the “kinds and extent of
examination and testing” Ms. Barden performed, if any. 9 20 C.F.R. § 404.1527(c)(2)(i-ii), (f)(1)
(more weight is to be afforded to non-acceptable treating source with longer relationship and
more frequent examinations, as well as based on “kinds and extent of examinations and testing”
performed); see Cookson v. Colvin, 111 F. Supp. 3d 142, 152 (D.R.I. 2015) (opinion properly
afforded minimal weight because source only met with claimant once and record contained no
contemporaneous mental health notes to provide context to opinions). Most importantly, the
applicable regulations provide that “the more consistent a medical opinion is with the record as a
whole,” the more weight it may be given; thus, the ALJ’s stated basis for discounting the Barden
opinions – their inconsistency with the Thundermist and Kent Center records – is well grounded
in the law. 20 C.F.R. § 404.1527(c)(4), (f)(1). Further, the consistency between the Barden
9
Ms. Barden’s December 14, 2015, opinion seems to describe a treating relationship of six-months duration as of
the date of her March 2015 opinion, in that she wrote: “Began treatment 9/25/14. Biweekly sessions.” Tr. 694.
Plaintiff’s vague answer during the hearing seems to confirm the existence of a treating relationship. Tr. 47 (“her
name’s Stacy . . . She’s my therapist. She helped me a lot with what I should do –”). However, the Kent Center’s
records contradict Ms. Barden’s opinion in that they do not reflect that she began treating Plaintiff on September 25,
2014; to the contrary, the first (and only) encounter with Ms. Barden is on October 16, 2014. Tr. 610. Further, Ms.
Barden’s October 16, 2014, note specifically states that it is the “1st appt,” Tr. 610, contrary to Ms. Barden’s
assertion in her opinion that she had seen Plaintiff three weeks prior, on “9/25/14.” Despite this confusion, the ALJ
gave Plaintiff the benefit of the doubt and viewed the Barden opinions as from a treating source, finding them to
include “determinations [that] are valuable given her treatment history.” Tr. 30. See Costa v. Colvin, No. 15-540,
2016 WL 7974120, at *4 (D.R.I. Dec. 21, 2016), adopted, 2017 WL 354284 (D.R.I. Jan. 24, 2017) (“opinions from
sources who are not ‘acceptable medical sources’ are important and should be evaluated on key issues such as
severity and functional effects, along with other relevant evidence in the file”).
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opinions and Plaintiff’s statements does not undermine the ALJ’s decision to afford the Barden
opinions little weight because Plaintiff has not challenged the ALJ’s well-founded determination
to discount the credibility of those statements. Finally, Plaintiff is simply wrong in arguing that
the ALJ chose to disregard the Barden opinions. To the contrary, both are expressly referenced
in the decision. The March 2015 opinion is cited as one of the sources used to formulate the ALJ
Step Three analysis of Plaintiff’s difficulties with “concentration, persistence or pace.” Tr. 23.
And the Barden conclusions regarding Plaintiff’s “mental residual functional capacity” 10 are
expressly discussed in connection with the ALJ’s RFC analysis, which notes that her
determinations are “valuable given her treatment history,” but affords them little (but not no)
weight in light of their inconsistency with the “entirety” of the other medical evidence. Tr. 30.
At bottom, Plaintiff argues only that the record contains some evidence that is consistent
with the Barden opinions. He does not challenge the ALJ’s well-supported finding that there is
also inconsistent evidence or the ALJ’s weighing of the evidence resulting in the pivotal finding
of inconsistency when the record is “viewed in its entirety.” Tr. 30. Nor could he, with the mental
status examinations from the Kent Center a mix of normal and abnormal observations, while
several from Thundermist are completely normal. See, e.g., Tr. 555 (mental status observations
of Nurse Shea of Thundermist entirely normal, including focused attention, euthymic mood and
appropriate affect); Tr. 658 (mental status examination of Dr. Filip of Thundermist largely
normal); Tr. 686 (mental status observations of Dr. Koyfman normal except for dysphoric mood).
While Plaintiff may be right that some of the observations of his treating sources are consistent
10
The Court declines to chase the red herring based on the ALJ’s inclusion of a citation to the December 2015
Barden opinion “(See 16F)”, but omission of the analogous citation to the March 2015 Barden opinion, in his
discussion of the weight to be afforded to “the mental residual function capacity offered by one of the claimant’s
treating therapist, Stacie Barden, LCSW.” Tr. 30. It is plain from the words used in the decision that the ALJ is
referring to both the March and December opinions, in that both amount to Ms. Barden’s opinion regarding
Plaintiff’s mental residual functional capacity.
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with the Barden opinions, while many are not, that is not enough to require remand. As the
adjudicator, the ALJ is permitted to thread through the record to conclude that, “viewed in its
entirety,” it is sufficiently inconsistent with Ms. Barden’s extreme and unsupported limitations as
to afford the latter little weight. Brown, 71 F. Supp. 2d at 31 (“[T]he resolution of conflicts in the
evidence is for the Commissioner, not the courts.”); see Ortiz v. Berryhill, No. 16-584JJM, 2017
WL 6001698, at *12 (D.R.I. Nov. 9, 2017), adopted, 2017 WL 5992276 (D.R.I. Dec. 1, 2017)
(court may not reweigh the evidence). When substantial evidence supports the ALJ’s decision,
record evidence supportive of a different outcome is not a reason to overturn it. See Rodriguez
Pagan, 819 F.2d at 3.
I find that the ALJ’s treatment of the Barden opinions rests on a correct application of law to
the substantial evidence of record. I do not recommend remand.
V.
Conclusion
Based on the foregoing analysis, I recommend that Plaintiff’s Motion to Reverse the
Decision of the Commissioner (ECF No. 11) be DENIED and Defendant’s Motion for an Order
Affirming the Decision of the Commissioner (ECF No. 12) be GRANTED.
Any objection to this report and recommendation must be specific and must be served
and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting
party. See Fed. R. Civ. P. 72(b)(2); DRI LR Cv 72(d). Failure to file specific objections in a
timely manner constitutes waiver of the right to review by the district judge and the right to
appeal the Court’s decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008);
Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
February 23, 2018
17
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