Opinion
CIVIL ACTION NO. 06-10503-PBS.
July 18, 2007
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff Keith B. Pina seeks remand of a decision of the Commissioner of Social Security Administration on the ground that the findings of the Administrative Law Judge ("ALJ") were not supported by substantial evidence. For the reasons set forth below, the Court DENIES plaintiff's motion for summary judgment and ALLOWS defendant's motion for an order affirming the decision of the ALJ.
II. FACTUAL BACKGROUND
A. Procedural History
On April 9, 2003, plaintiff applied for Social Security Disability Insurance ("SSDI") benefits, and Supplemental Security Income ("SSI") benefits. After his claim was initially denied on August 11, 2003, and on reconsideration on November 12, 2003, plaintiff requested an administrative hearing, which was held before ALJ Martha H. Bower on January 5, 2005. Three witnesses testified at the hearing: a vocational expert ("VE"), the plaintiff, who was represented by counsel, and plaintiff's friend. On April 4, 2005, the ALJ issued a decision finding that plaintiff was not disabled. The Appeals Council denied plaintiff's request for review on January 17, 2006, rendering the ALJ's decision the final decision of the Commissioner.B. Employment History
Plaintiff was 42 at the time of the hearing. (Tr. 50.) He has completed the eleventh grade and previously worked as a cook and as a landscape laborer. (Tr. 70, 65.) Plaintiff claims that he has been disabled since December 31, 2002 because of mental and physical problems.
C. Medical History
Plaintiff first received mental health treatment October 3, 2002 through March 20, 2003 at the Professional Counseling Center. (Tr. 154-56.) Plaintiff was self-referred and complained of anxiety due to caring for his father and conflicts with his girlfriend. (Tr. 154.) These symptoms increased after he was involved in a motor vehicle accident. (Tr. 155.) Plaintiff was diagnosed with generalized anxiety disorder and treated in both individual and couples counseling. (Id.) Following the treatment, he showed some improvement and was discharged from the Professional Counseling Center with a Global Assessment of Functioning ("GAF") score of 65. (Id.) The Professional Counseling Center report also noted that plaintiff had a history of substance abuse. (Id.)
A GAF of 61-70 indicates presence of "some mild symptoms" with possible difficulty in occupational or social functioning, but generally functioning fairly well. See Diagnostic and Statistical Manual of mental Disorders, Text Revision, 34 (4th ed) ("DSM-IV-TR").
Plaintiff began treatment with Dr. Guillermo Gonzalez on June 9, 2003, and saw him again on September 17, 2003. (Tr. 184, 189.) Dr. Gonzalez's notes from June 9 show that plaintiff's GAF score was 60. (Tr. 188.) Notes from September 17 indicated that plaintiff had moderately severe symptoms in the areas of alcohol, depression, disorientation, obsessions, irritability, suspiciousness, and tension. (Tr. 189.) In addition, plaintiff suffered from moderate anxiety and severe distractibility, and had marked restrictions of daily living activity and moderate social limitations. (Id.)
A GAF of 51-60 indicates "moderate symptoms" or moderate difficulty in social or occupational functioning See DSM-IV-TR at 34.
On November 3, 2003, plaintiff was evaluated by Dr. Steven J. Hirsch to assist in making a Social Security eligibility determination. (Tr. 198.) During this evaluation, plaintiff reported that he had abused alcohol, marijuana and cocaine in the past (Tr. 199); he experienced mood swings and frequently felt rage towards others (Tr. 200); and he had once attacked his wife with a meat cleaver (id.). He told Dr. Hirsch that he had been incarcerated for disorderly conduct, resisting arrest, and assault and battery, and that he was on probation and undergoing court-ordered anger management treatment. (Tr. 199.) Dr. Hirsch rated plaintiff's memory as fair, his attention span as adequate, and his affect as appropriate, with no indications of delusional thinking. (Id.) Plaintiff did not appear anxious when Dr. Hirsch was assessing him, and tended to minimize the effect of substance abuse on his life. (Tr. 200.) Dr. Hirsch did note, however, that plaintiff had poor impulse control and low frustration tolerance. (Id.) Dr. Hirsch diagnosed plaintiff with alcohol abuse, poly-substance abuse, bipolar disorder, and a personality disorder. (Tr. 201.)
On November 10, 2003, a state agency psychologist completed a Psychiatric Review Technique Form. (Tr. 202-15.) The psychologist found evidence of a mood disorder, an anxiety disorder, a personality disorder, and substance abuse disorder. (Id.) She found moderate limitations on plaintiff's daily living activities, social interactions, and ability to maintain concentration, consistency, and pace. (Tr. 212.) The same day, the psychologist completed a mental RFC assessment. (Tr. 216-19.) The results indicate that plaintiff would be able to comprehend and recall simple instructions, complete simple tasks, sustain concentration for two-hour increments, and adapt to routine changes. (Tr. 218.) Though plaintiff was impaired in his social interactions, the psychologist found that this behavior could be controlled with abstinence from drugs and alcohol. (Id.) Moreover, plaintiff's mood and anxiety disorders were likely related to his substance abuse. (Id.)
Plaintiff was next treated at the Center for Health and Human Resources from February 4 through June 22, 2004. (Tr. 225, 235.) He saw a counselor at that Center on a weekly basis and a medication-prescribing doctor once a month. (Tr. 240.) When treatment began on February 4, 2004, plaintiff was diagnosed with major depression with psychotic features, a history of alcohol abuse and dependence, and possible bipolar disorder, panic disorder and ADHD. (Tr. 225-36.) He was given a GAF of 50. (Tr. 225.) The treating physician's notes (which were difficult to read) indicate that plaintiff had abused cocaine for approximately two years before the examination, and had not had alcohol for six months. (Tr. 227.) Over the course of treatment at the Center, plaintiff complained of irritability, impulsivity, poor sleep, hearing voices, mood swings, low motivation, sadness, and difficulty concentrating. (Tr. 226, 228-29, 232, 234.) By June 22, 2004, plaintiff's symptoms had improved significantly: he was finding relief with a combination of the medications Paxil and Seroquel, he felt calmer, he was sleeping better, his racing thoughts had improved, his depressive symptoms had decreased, and he was only hearing voices on occasion. (Tr. 235.)
A GAF of 41-50 indicates "serious symptoms" or serious impairment in social or occupational functioning. See DSM-IV-TR at 34.
Treatment notes from Dr. Michael McGuire at the Center for Health and Human Resources indicate that plaintiff's condition appeared stable by November 5, 2004. (Tr. 240, 248.) He was diagnosed with bipolar disorder and alcohol dependence in remission. (Tr. 248.) Plaintiff reported feeling "a little depressed" because he was not working and stated that he still heard a voice calling his name occasionally. (Id.) Dr. McGuire's treatment notes from December 6, 2004 state that plaintiff felt anxious and nervous and had difficulty sleeping, but his previous diagnoses remained the same. (Tr. 249.)
One week prior to the hearing, on December 28, 2004, plaintiff's attorney arranged an evaluation by Dr. John Parsons. (Tr. 237.) At this meeting, plaintiff reported that he had not consumed alcohol in over ten years and that he had never used illicit drugs other than marijuana, which he had not used in over twenty years. (Tr. 240.) Dr. Parsons diagnosed plaintiff with major depressive disorder, nicotine dependence, alcohol dependence in sustained full remission, borderline intellectual functioning, and no personality disorder. (Tr. 244.) Dr. Parsons completed the Beck Anxiety Inventory and Beck Depression Inventory, both of which indicated moderate problems with plaintiff's emotional state. (Tr. 242.) Dr. Parsons assessed a GAF score of 49. (Tr. 245.) Additionally, Dr. Parsons completed a Supplemental Questionnaire as to Residual Functional Capacity ("RFC"), which indicated that plaintiff was severely limited in responding appropriately to supervisors and customary work pressures. (Tr. 246-47.) Furthermore, the questionnaire showed that plaintiff was limited in his ability to understand, carry out and remember instructions; to respond appropriately to co-workers; and to perform other work-related tasks. (Id.) These limitations were reported as being moderately severe. (Id.)
The ALJ Hearing and Findings
At the January 5, 2005 hearing, plaintiff reported that he had stopped working to take care of his wheelchair-bound father, who had had a stroke and who suffered from emphysema. (Tr. 292.) Plaintiff's daily routine included fixing coffee for his father, getting him the newspaper, preparing meals for himself and his father, shopping with his friend, Angie Perez, and completing household chores. (Id.) Plaintiff was able to care for his own and his father's personal needs, attend counseling appointments, and take his prescribed medication. (Tr. 293-94, 300-02.)
Plaintiff testified that he was quick to anger and that he was frequently in fights. (Tr. 305.) He did not like having people tell him what to do. (Tr. 306.) He admitted that he had problems with substance abuse in the past, but testified that he had not consumed alcohol for about six years and had not used cocaine for about ten years. (Tr. 303-04, 311.)
Angie Perez, plaintiff's friend, testified that she had known plaintiff for about four years and that they lived in the same apartment building. (Tr. 312.) She had previously dated the plaintiff. (Tr. 313.) Ms. Perez cared for her seven year old son and was on disability because of bipolar disorder. (Tr. 316.) She testified that she saw plaintiff daily and that she helped plaintiff with many of his responsibilities, such as cooking, running errands, shopping for food, and managing plaintiff's father's medications. (Tr. 313-14.) Ms. Perez testified that she had been in a physical altercation with plaintiff and that she was concerned about continuing her relationship with him because of his anxiety and mood swings. (Tr. 313-15.) She also testified that plaintiff had trouble concentrating and did not like being around other people. (Tr. 317-18.) She said that she had never seen plaintiff use marijuana or cocaine and she had not seen him drink alcohol in over two years. (Tr. 316.)
The VE also testified at the hearing. He has a Bachelor of Science degree in Business Administration and a Master of Arts degree in Rehabilitation Counseling. (Tr. 47.) He holds two certifications as a rehabilitation counselor and has worked for six years as a vocational rehabilitation counselor. (Id.) In addition, at the time of the administrative hearing he had seven years of experience as a vocational consultant. (Id.) At the hearing, the VE was asked about the type of work an individual the same age and with the same educational and vocational background as plaintiff could perform, given the plaintiff's limitations in social skills and concentration. (Tr. 319-20.)
The VE testified that plaintiff's past relevant work ranged from light to medium and was skilled to semi-skilled. (Tr. 320.) He testified that such an individual would not be able to perform the plaintiff's past work, but that a significant number of other positions were available in Rhode Island and Massachusetts that plaintiff was capable of performing. (Tr. 321.) The VE testified to the numbers of available jobs in Rhode Island and Massachusetts that an individual such as the plaintiff could hold. (Tr. 321-22.) These categories include only light, unskilled jobs that require minimal judgment and reasoning as well as very limited interaction with the public or co-workers. (Tr. 323.) Representative jobs include assembler, inspector, production laborer, and machine tender. (Tr. 321.) The VE stated that he had obtained an estimate of the number of available jobs as a result of his own analysis of the labor market, but could not provide any further verification of such numbers when asked by plaintiff's counsel. (Tr. 324.) Plaintiff's counsel did not further explore this topic during cross-examination.
The ALJ found that plaintiff suffered from various physical impairments, which, though severe, did not rise to the level of one of the listed impairments. (Tr. 17, 21.) She held:
The claimant has the following residual functional capacity: The claimant is limited to light work, as defined in the regulations. His capacity for the full range of light work is further diminished by an inability to repetitively climb ropes, ladders, scaffolds, stairs or ladders. He further cannot repetitively crouch, crawl, stoop, or kneel. He cannot repetitively lift or reach overhead. He is unable to work at unprotected heights or hazardous machinery. Mentally, he has a moderate limitation in concentration such that he is limited to the performance of simple, repetitive tasks. He has a mild limitation in social functioning, such that he can work in environments involving minimal interaction with co-workers and the public.
(Id.) She found that claimant's mental limitation could be considered "at most moderate" and pointed out that one treating doctor "found the claimant's problems based more upon substance abuse than any overt psychopathology." (Tr. 19.) She also found that, while plaintiff could not perform the same type of work he had performed in the past, plaintiff could perform work involving simple, repetitive tasks and minimal interaction with the public and co-workers. (Tr. 19, 21.) Furthermore, the ALJ found there were a significant number of jobs available in the national economy that plaintiff could perform. (Tr. 19-21, 22.)
III. STANDARD
A. Disability Determination Process
An individual may be entitled to Social Security disability benefits by demonstrating that he is unable 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 can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An impairment is disabling if it "results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).The Commissioner has developed a five-step sequential evaluation process to determine whether a person is disabled. See 20 C.F.R. § 404.1520; Goodermote v. Sec'y of Health Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). "Step one determines whether the claimant is engaged in substantial gainful activity. If he is, disability benefits are denied. If he is not, the decisionmaker proceeds to step two, which determines whether the claimant has a medically severe impairment or combination of impairments." Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987) (citations omitted). The governing severity regulation states:
If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.20 C.F.R. §§ 404.1520(c), 416.920(c).
"Basic work activities" are defined as "the abilities and aptitudes necessary to do most jobs." Bowen, 482 U.S. at 140-41 (citing 20 C.F.R. §§ 404.1521(b), 416.921(b)). Thus, "the severity regulation requires the claimant to show that he or she has an `impairment or combination of impairments which significantly limits . . . the abilities and aptitudes necessary to do most jobs.'" Id. at 146 (quoting 20 C.F.R. §§ 404.1520(c), 404.1521(b)).
If the claimant has a severe impairment, the third step requires a determination of "whether the impairment is equivalent to one of [the] listed impairments that . . . are so severe as to preclude substantial gainful activity." Id. at 141 (citing 20 C.F.R. §§ 404.1520(d), 416.920(d)). If the impairment is not "conclusively presumed to be disabling," the fourth step evaluates whether the impairment prevents the claimant from performing his past work. Id. "If the claimant is able to perform his previous work, he is not disabled." Id. However, if he cannot perform his past work, the burden shifts to the Commissioner to prove that the claimant "is able to perform other work in the national economy in view of his age, education, and work experience." Id. at 142, 146 n. 5. During steps one, two, and four, the burden of proof is on the claimant. Id.
B. Standard of Review
Judicial review of SSDI determinations is governed by 42 U.S.C. § 405(g), which provides that the Court "shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing."
In reviewing such decisions, the Court does not make de novo determinations. Lizotte v. Sec'y of Health Human Servs., 654 F.2d 127, 128 (1st Cir. 1981). Rather, this Court "must affirm the [Commissioner's] findings if they are supported by substantial evidence." Cashman v. Shalala, 817 F. Supp. 217, 220 (D. Mass. 1993); see also Rodriguez Pagan v. Sec'y of Health Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (stating that the Commissioner's determination must be affirmed, "even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence").
Substantial evidence is "more than a mere scintilla."Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229 (1938)). Substantial evidence means such relevant evidence as a "reasonable mind, reviewing the evidence in the record as a whole, [would] accept . . . as adequate to support [a] conclusion." Ortiz v. Sec'y of Health Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (citing Rodriguez v. Sec'y of Health Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). In reviewing the record for substantial evidence, "issues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the [Commissioner]." Rodriguez, 647 F.2d at 222 (quoting Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965)). When a conflict exists in the record, the Commissioner bears the duty to weigh the evidence and resolve material conflicts in testimony. See Richardson, 402 U.S. at 399;Ortiz, 955 F.2d at 769.
In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must consider whether the proper legal standard was applied. "Failure of the [Commissioner] to apply the correct legal standards as promulgated by the regulations or failure to provide the reviewing court with the sufficient basis to determine that the [Commissioner] applied the correct legal standards are grounds for reversal." Weiler v. Shalala, 922 F. Supp. 689, 694 (D. Mass. 1996) (citing Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982)).
IV. DISCUSSION
A. Plaintiff's Residual Functional Capacity
Plaintiff does not contest the ALJ's assessment of his physical functioning but does challenge her findings with respect to mental residual functional capacity (RFC), arguing that the findings are not supported by substantial evidence and that the ALJ ignored evidence favorable to plaintiff's claim. Specifically, plaintiff contends that the ALJ ignored Dr. Hirsch's report of interpersonal difficulties and his diagnosis of a personality disorder; that she disregarded Dr. Parsons' findings of interpersonal struggles, moodiness, irritability, and difficulty with authority; that she improperly relied on Dr. Gonzalez's assessment of plaintiff's GAF of 60 while ignoring notes of moderately severe and severe limitations in areas of functioning; and that she ignored portions of testimony by plaintiff and by his neighbor as to his difficulty in functioning. (Id.)
A person's RFC is determined by looking at the effect that impairments and related symptoms have on capabilities in the work setting. See 20 C.F.R. §§ 404.1545(a), 416.945(a) ("Your residual functional capacity is the most you can still do despite your limitations."). An ALJ uses all relevant evidence appearing in the record to determine the RFC; however, she is not "required to recite every piece of evidence which favored appellant." Santiago v. Sec'y of Health Human Servs., 46 F.3d 1114 (1st Cir. 1995).
Substantial evidence exists in the record to support the ALJ's determination of plaintiff's RFC. If a person's impairment is mental, the inquiry will focus on whether the individual can "understand, carry out and remember simple instructions; respond appropriately to supervision, coworkers and usual work situations; and deal with changes in a routine work setting." Social Security Ruling 85-15, Capability to Do Other Work — The Medical-Vocational Rules as a Framework for Evaluating Solely Nonexertional Impairments, 1985 WL 56857, at *4. While it is true that some of plaintiff's treating physicians reported that plaintiff's mental health might stand in the way of his ability to work, there is ample evidence to the contrary from other physicians.
Plaintiff complains that the ALJ did not place enough emphasis on the most recent evaluation, that of Dr. Parsons, which is highly favorable to plaintiff's disability claim. Dr. Parsons stated that "maintaining gainful employment on a sustained basis would be an extremely difficult task for [plaintiff]." (Tr. 245-47.)
While medical opinions of treating physicians are helpful in directing a determination of disability, the court must examine the length and frequency of the treatment, nature and extent of the treatment, supportability of the evidence, consistency with the record, and speciality of the physician. 20 C.F.R. § 404.1527(d)(2-6). Plaintiff saw Dr. Parsons only one time, at the recommendation of his lawyer, a week before his hearing. Because a "claimant's statements alone are not enough to establish that there is a physical or mental impairment," it would be difficult for a therapist to make the requisite determination based on only a single appointment. 20 C.F.R. § 404.1528(a). Using a plaintiff's statements alone is particularly troublesome in this case because plaintiff admitted on record that he previously had a substance abuse problem, including cocaine use. (Tr. 304.) Yet at his appointment with Dr. Parsons, plaintiff reported that he had never used any illicit drugs besides marijuana. (Tr. 240.)
Furthermore, "[a]n individual shall not be considered to be disabled for purposes of [the Social Security Act] if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 423(d)(2)(C). Some of plaintiff's treating physicians attributed at least a few of his symptoms to substance abuse. In fact, though plaintiff admitted on the record that he had a substance abuse problem until a year prior to the hearing, he told Dr. Parsons he had not smoked marijuana for more than two decades, had never used any other unprescribed drugs, had no dependance on marijuana, and had no negative consequences from drug use. (Tr. 240.)
The evidence of the severity of plaintiff's mental impairments (were they mild, moderate or moderately severe?) varied over time. Plaintiff's own psychiatrists gave him GAF scores of 60 and 65 in 2003. While he dipped to a low of 50 in early 2004, he had improved with medication and treatment by year-end. The ALJ "piece[d] together the relevant medical facts from the findings and opinions of multiple physicians," an appropriate method for coming to her conclusion as to plaintiff's RFC. Evangelista v. Sec'y of Health Human Servs., 826 F.2d 136, 144 (1st Cir. 1987). As such, there was substantial evidence in the record to support the ALJ's finding that plaintiff had at most moderate mental limitations and was capable of work involving "minimal interaction with co-workers and the public."
B. Reliance on the Vocation Expert's Testimony
Plaintiff next argues that the vocational expert's testimony as to the number of available jobs in the national economy was unsubstantiated. Plaintiff takes issue with the lack of verifying sources for the specific data in the VE's testimony regarding the number of jobs that the plaintiff could hold. The VE provided specific examples of jobs, citing their reference numbers in the Dictionary of Occupational Titles, that an individual could hold despite having the plaintiff's limitations. (Tr. 323-24.) According to the VE, plaintiff was capable of "light, unskilled" jobs including assembler, inspector, production laborer, and machine tenderer. (Tr. 321.) These jobs involve "very little need for interaction with either the public, co-workers, or supervisors." (Tr. 323.) When plaintiff's counsel asked for his source for the estimates, the VE responded that his estimates were based on his analysis of the job market. (Tr. 324.)
However, plaintiff's challenge to the VE's credibility is untimely because plaintiff failed to object at the hearing to the VE's testimony. It was not until plaintiff's counsel sent a letter to the ALJ on February 22, 2005 that any objection to the testimony appeared in the record. (Tr. 98.) Thus the objection is waived as untimely. See Donahue v. Barnhart, 279 F.3d 441, 447 (7th Cir. 2002) (finding that because there were "no questions asked that reveal any shortcomings in the vocational expert's data or reasoning — the ALJ was entitled to reach the conclusion she did").
ORDER
After review of the briefs and the administrative record, plaintiff's motion for summary judgment (Docket No. 15) is DENIED , and defendant's motion for an order to affirm the decision of the ALJ (Docket No. 18) is ALLOWED .