Opinion
19-cv-195 (DTS)
06-10-2021
Paula Montry, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
ATTACHMENT 1
The Court attaches below a redlined comparison of Section 5 of the ALJ's 2018 and 2020 decisions. Changes between those two documents appear in red additions and strikethrough deletions.
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the individual is limited to simple routine tasks; may have occasional superficial contact with supervisors, and coworkers; and may have no contact with the public. By superficial, I mean rated no lower than an “8” on the Selected Characteristics of Occupations' people rating.
In making this finding, I have considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence based on the requirements of 20 CFR 404.1529 and 416.929 and SSR 16-3p. I have also considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927.
In considering the claimant's symptoms, I must follow a two-step process in which it must first be determined whether there is an underlying medically determinable physical or mental impairment(s)--i.e., an impairment(s) that can be shown by medically acceptable clinical or laboratory diagnostic techniques--that could reasonably be expected to produce the claimant's pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the claimant's pain or other symptoms has been shown, I must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitationswork-related activities. For this purpose, whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, I must consider other evidence in the record to determine if the claimant's symptoms limit the ability to do work-related activities.
The claimant, Paula Nanette Montry, is a 5355-year-old woman who has alleged a disability onset date of February 26, 2011. At the time, she was 46 years old. Again, however, for the purposes of this decision, the relevant timeframe begins on September 22, 2012, at which time she was 48 years old. She contends she has been unable to sustain a full-time job due to a number of physical and mental conditions and symptoms, including right ankle pain, hepatitis C, and depression (2E, 6E, 9E). Several work-related abilities have purportedly been affected, such as standing, walking, lifting, reaching, hearing, seeing, using hands, climbing stairs, concentrating, comprehending, remembering, following instructions, and completing tasks. According to the claimant, she can walk for only two blocks before having to stop to rest for 10 minutes. She can lift only 10 pounds. Her attention span is limited only a half an hour. She can no longer engage in some of her former activities, like riding her bicycle (4E, 7E). At the March 2018 hearing, the claimant testified that it is primarily her mental health issues that keep her from working. She has a fear of others, especially when someone knocks on her door or when the telephone rings. Because of paranoia, she barricades her door with a vacuum cleaner. She claimed she spends much of the day sleeping but cannot sleep at night due to sleep apnea. Her mind also “spins too much” to sleep. At the December 2019 hearing, the claimant claimed to have “a lot of difficulties due to mental health problems.” According to the claimant, she does “a lot of crying” and suffers from nightmares, which awaken her every two hours. She has concentration deficits and problems getting along with others. She testified that the combination of depression, anxiety, and posttraumatic stress disorder render her unable to work full-time.
After careful consideration of the evidence, I find that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.
The claimant carries diagnoses of generalized anxiety disorder/anxiety disorder, not otherwise specified (2F/21, 5F/37, 6F, 15F/7) and major depressive disorder (3F/37, 5F/37, 6F, 15F/7), which necessitate the mental parameters described in the above-residual functional capacity. The claimant's history of mental illness is long-standing and extends back to “a very young age.” There is no indication of a significant exacerbation of the claimant's mental symptoms occurring on or around the time of the alleged onset of disability. In fact, as discussed below, the claimant stopped working when she was fired for failing a drug test and not for mental health reasons (2E/3).
Self-reported symptoms have included crying jags, sleep disturbance, anhedonia, uncontrollable worry, difficulties with concentration and attention, lack of motivation, and feelings of hopelessness and helplessness (see, e.g., 6F/3). As noted above, the claimant has had periods of homelessness during the relevant timeframe. Her main issues in regards to mental health are some social difficulties that pertain to anxiety. Per the treatment notes, social situations and crowds are difficult for the claimant (see, e.g., 15F/14). However, she can take public transportation when she needs to. She is able to go to restaurants for Christmas dinner as is the habit in her family. In fact, from the objective medical records, there is not a single documented instance of the claimant's anxiety preventing her from doing something specific that she has to do.
Mental health treatment during the relevant claim period has been routine and conservative and has consisted primarily of a psychotropic medication regimen, along with some sporadic therapy and case management services (14E, 15F, 26F). During the consultative psychological evaluation, the claimant reported seeing a provider only once every three months for medication and counseling services (6F/3). During the relevant claim period, there have been no psychiatric hospitalizations, no electroconvulsive therapy, no participation in a mental health day treatment program, and no emergency treatments for mental health reasons. Thus, the level of mental health care has not been nearly what one would expect given the claimant's complaints of debilitating mental symptoms and limitations.
Mental status examinations and clinical observations indicate the claimant has been mentally capable of full-time work within the above-residual functional capacity. For example, during a November 2013 counseling session, the claimant exhibited no signs of mania or psychosis. She was oriented to person, place, time, and situation. She appeared well-groomed. Her psychomotor behavior was unremarkable. Her speech and affect were appropriate. Though she complained of anxious and irritable mood, her thought processes were logical and her thought content was unremarkable. She denied suicidal ideation. She had no difficulties with attention. Her memory was intact. Her consciousness was clear. Her insight and judgment were fair (5F/'37). In November 2013, the claimant was found to have a Global Assessment of Functioning (GAF) score of 55, which, per the DSM-IV, is indicative of only “moderate” mental health symptoms and/or functional limitations (5F/54). Other GAF scores of record have also been in the 50s.
During a may 2015 consultative psychological evaluation, the claimant appeared well-dressed and well-groomed. Her speech was well-articulated. Her affective reactions were fairly appropriate. Her overall mood was congruent. Her thoughts were logical and goal-directed. She denied suicidal ideation. There was no evidence of hallucinations, delusions, or a thought disorder. There was no evidence of mania. She maintained good eye contact. Her psychomotor activity was within normal range. Her fund of information was intact. Her conversational speech was consistent with an average IQ. She was able to perform serial sevens. Abstractive capacity was intact (6F/2-3).
In a February 2016 therapy intake session, the claimant reported she had same-age friends. She was cooperative and neatly groomed. Her thoughts and perceptions were clear and intact. Although she had an anxious and depressed mood, she was fully oriented. There were no vegetative symptoms. Her eye contact, insight, and judgment were good. Her speech was normal (15F/1-8).
Since we last evaluated the case, there are only about 400 new pages of exhibits (18F-29F). In these exhibits, the claimant's mental status has remained largely within normal limits. In July 2018, the claimant was adequately dressed and groomed. She was fully alert and oriented.
Though she reported a depressed mood, she denied any suicidality. Her thought form was logical. She had no speech deficits (26F/4). While the claimant appeared disheveled the following month and had a constricted affect, her orientation, speech, and thought form remained normal (26F/7). In an October 2018 therapy session, the claimant was alert and cooperative, with an appropriate affect. Her insight, judgment, and thought process were intact (26F/22). In January 2019, the claimant reported being “a little depressed.” Though her affect was again constricted, she had no deficits in regards to thought form or speech (26F/33). In another mental status examination from the same month, the claimant was alert, cooperative, and appropriate. Though she claimed an irritable, depressed, and anxious mood, her insight, judgment, and thought process remained intact (26F/55). In April 2019, the claimant had a “bright” affect, and her mental status examination was completely normal (26F/41). It remained slightly normal in August 2019 (26F/47). In another August 2019 examination, the claimant was alert and oriented to person, place, and time (23F/59).
Additionally, the claimant betrayed no evidence of significant mental health problems while testifying at the March 2018 and December 2019 hearings. Indeed, at both hearings, she appeared polite, attentive, and responsive. While the hearings waswere short-lived and cannot be considered a conclusive indicators of the claimant's overall level of mental functioning on a day-to-day basis, the apparent lack mental health impediments during the hearings is given some slight weight in reaching the conclusion regarding the consistency of the claimant's allegations and her mental residual functional capacity.
Other than that, the claimant did have some treatment for some mild hepatitis C-related encephalitis but this was treated successfully and also did not create durationally severe symptoms. So this remains nonsevere. She did gain a recent diagnosis for posttraumatic stress disorder, which I have added to the severe diagnoses but it does not change any of the ratings as far as the “B” criteria are concerned.
I note that the new exhibits also show a couple of Drug and/or Alcohol (DAA) relapses, none of them durationally severe. While I have made the polysubstance abuse/dependence dependence diagnoses severe, there is no indication that the claimant would be disabled in the context of DAA. As a result, DAA is immaterial to the determination of disability.
Thus, the objective clinical findings and signs in regards to the claimant's severe mental impairments, along with her courses of and responses to treatments, have been fully consistent with the above-residual functional capacity and inconsistent with the alleged degree of limitation.
A review of the claimant's extended work history shows that she worked only sporadically prior to the alleged disability onset date, which raises a question as to whether her continuing unemployment is actually due to medical impairments. Certified earnings records indicate there have were many which the claimant worked at levels well below substantial gainful activity (e.g., 2000, 2001, 2003, 2004, 2005, 2006, 2007) (6D). Her spotty long-term work history further undermines her allegations that she became medically disabled from all full-time employment in February 2011. In fact, she has admitted that she stopped working for nonmedical reasons and that she was fired after failing a drug test (2E/3).
As mentioned earlier, the record also reflects some work activity after the alleged onset date, with sub substantial gainful activity level earnings taking place at the Dollar Tree in 2016 and 2017 (10D). Although that work activity did not constitute disqualifying substantial gainful activity, it does indicate that the claimant's daily activities have, at least at times, been somewhat greater than the claimant has generally reported. Under the regulations, even sub substantial gainful activity work can demonstrate the ability to perform substantial gainful activity (20 CFR 404.1571, 416.971).
The claimant has described other activities that are not nearly limited to the extent one would expect, given the complaints of disabling symptoms and limitations. As noted, during the relevant claim period, she has been able to independently attend her personal care needs; get around by walking or by using public transportation; shop in stores; prepare simple meals; do some housework; manage her personal finances; read; do crossword puzzles; follow television programs; maintain friendships with same-age friends; go to restaurants with her family for Christmas dinners; attend Narcotics Anonymous meetings; go to powwows; and transition into living independently in her own apartment (4E, 7E, 6F, 15F). these activities are fully consistent with, and likely well in excess of, the limitations described in the above-residual functional capacity. The fact that the claimant remains independent and able to carry out a broad range of activities significantly undercuts her allegations of disability.
As for the opinion evidence, following the May 2015 consultative psychological evaluation, Craig Barron, Psy.D., concluded the claimant appears capable of communicating, comprehending, and retaining simple directions at an unskilled, competitive employment. She appears capable of withstanding work-related stresses, attending work regularly, rapidly performing routine, repetitive activities on a sustained basis, meaning production requirements, and relating to others at an unskilled, competitive employment level (6F/5-6). Dr. Barron personally examined the claimant, had access to some of her medical records, and is familiar with Social Security disability regulations. His findings are consistent with the substantial evidence, including the overall clinical findings and signs of mental illness, as evidenced by mental status examinations and observations made by providers; the claimant's generally good response to routine and conservative mental health treatment modalities; and the claimant's daily and other activities. As result, I have given Dr. Barron's conclusions great weight. The additional social restrictions described in the above-residual functional capacity are based upon the subsequently received evidence, along with the claimant's subjective complaints.
The residual functional capacity conclusions reached by the psychologists employed by the State Disability Determination Services also support a finding of “not disabled.” Ray Conroe, PhD, reviewed the claimant's medical records at the initial level and reached the exact same conclusions regarding the claimant's mental workability as Dr. Barron (1A, 2A). later, upon reconsideration, Jeffrey Boyd, PhD, agreed (7A, 8A). These psychologists have specialized, programmatic knowledge of Social Security disability regulations and were in the unique position of having had access the claimant's comprehensive, objective, longitudinal medical records as they existed at the times of their reviews. Their findings are consistent with the substantial mental evidence for the same reasons discussed above in the analysis of Dr. Barron's opinion. As a result, I have also given their expert conclusions great weight.
In September 2017, the claimant's treating psychiatrist, Timothy Gibbs, M.D., ticked off some boxes on a boilerplate “mental medical source statement” form, in which he indicated the claimant has had “marked” to “extreme” mental work-related limitations in several domains, including maintaining attention and concentration for more than two hours segments; performing activities within a schedule; maintaining regular attendance and punctuality; working in coordination with her proximity to others without being unduly distracted; completing a normal workday/workweek without interruptions from psychologically-based symptoms; performing at a consistent pace without an unreasonable number and length the rest periods; tolerating ordinary levels of stress, and so on. Dr. Gibbs speculated that if the claimant were to work, she would require additional work breaks and would likely miss more than three days a month. He also indicated the claimant's mental impairments have met the former “C” criteria of the mental listings (10F). I have given Dr. Gibbs' conjectures little weight, as they are not supported by the mostly normal mental status examinations; the overall Global Assessment of Functioning scores in the 50s; the claimant's routine, yet effective, modalities of mental health treatment; or the claimant's daily and other activities. Dr. Gibbs cited no evidence and provided no explanation to support his opinion. In reaching his speculations as of the claimant's workability, Dr. Gibbs apparently relied quite heavily on the subjective report of symptoms and limitations provided by the claimant, and seemed to uncritically accept as true most, if not all, of what the claimant reported. Yet, as explained elsewhere in this decision, there exist good reasons for questioning the reliability of the claimant's subjective complaints.
In regards to the other, non-medical opinion evidence, the claimant's treating therapist, Paul Blaske, M.A., filled out the same mental check-box form in August 2016, in which he also indicated the claimant has had “marked” to “extreme” mental work-related limitations and that she would require extra work breaks and would be absent from work 2 to 3 times a month (9F). these conjectures are inconsistent with the substantial mental evidence for the same reasons discussed above in the analysis of Dr. Gibbs' opinion. He also provided no explanation and cited no evidence to support his assertions. Therefore, I have also given Mr. Blaske's opinion little weight.
As for the newly submitted opinion evidence, the claimant's current psychotropic medication management provider, Paul Ekberg, D.O., wrote a “To Whom It May Concern” letter in March 2019, in which he wrote that the claimant “still struggles with reported symptoms of depressed mood, diminished interest in almost all activities, sleep disturbance, decreased energy, very low self-esteem, (and) impairments (in) concentration of motivation.” He wrote that, “She has essentially been unable to work due to her symptoms…” However, he wrote that, “Because her symptoms are subjective and based on reports by her, other than her history, there is not really a lot of objective observable data that would support the appropriateness for her to be appropriate for disability status, although I cannot definitely rule that out” (20F). It is a bit difficult to decide how much weight to give this Dr. Ekberg's opinion because he is saying that the claimant is disabled while also saying she is not. In his treatment notes, Dr. Ekberg authors a couple of notes where he flat out says that he thinks the claimant is exaggerating her symptoms to get disability (see specifically 19F/6, 8, 19). The bottom line is Dr. Ekberg can site no objective evidence for disability which can be given any weight.
In sum, the above residual functional capacity assessment is supported by the comprehensive, objective, longitudinal medical evidence, including the overall clinical findings and signs; the claimant's courses of and responses to treatments; the claimant's daily and other activities; and the expert medical opinions provided by Dr. Barron and the DDS psychologists.