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Phan v. Colvin

United States District Court, D. Rhode Island

October 20, 2014

ANN PHAN, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

PATRICIA A. SULLIVAN, Magistrate Judge.

A refugee who fled war-torn Cambodia when she was twenty-two, Plaintiff Ann Phan claims that she has been disabled since May 2007 because of major depressive disorder, post-traumatic stress disorder ("PTSD"), an anxiety disorder, a pain syndrome, carpal tunnel syndrome, De Quervain's syndrome and right shoulder tendinitis.[1] She is before this Court on her Motion for reversal of the decision of the Commissioner of Social Security (the "Commissioner"), 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"). She contends that the Administrative Law Judge ("ALJ") erred in failing to reopen the adverse determination on her prior applications; in failing to have a medical expert testify at the administrative hearing (and, therefore, interpreting raw data himself); and in failing to find that De Quervain's syndrome and carpal tunnel syndrome are severe impairments at Step Two. She also contends that substantial evidence does not support the ALJ's decision to give considerable weight to the non-examining state agency opinions regarding her physical and mental residual functional capacity ("RFC") and to reject the only contrary opinion, from a social worker who saw Plaintiff twice and is not an acceptable treating source. Defendant Carolyn W. Colvin has filed a Motion for an order affirming the Commissioner's decision.

This 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 record, I find no legal error and that the ALJ's findings are well supported by substantial evidence; I also find that this Court is not authorized to review the Commissioner's determination regarding reopening. Accordingly, I recommend that Plaintiff's Motion for Reversal of the Disability Determination of the Commissioner of Social Security (ECF No. 7) be DENIED and the Commissioner's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 9) be GRANTED.

I. Background Facts

Plaintiff Ann Phan was born in 1958 in Cambodia. Tr. 158, 165, 502. During her childhood, she and her family were swept up in the violence of war; her mother died in childbirth, her father was executed and two half siblings died due to the lack of medical treatment. Tr. 351, 479. She was able to attend school only through third grade. Tr. 207. She speaks and understands English with difficulty, and cannot read or write it. Tr. 202, 207.

Plaintiff escaped Cambodia with her husband when she was twenty-two. Tr. 502. Over the years since, she has lived in Rhode Island, had three children, divorced her overly controlling husband and worked full-time in factories as an assembler, an inspector/mender and a stone setter. Tr. 241, 351. In January 2007, a workplace injury caused cervical radiculitis and shoulder tendinitis, which was covered by worker's compensation. Plaintiff was treated and, in May 2007, released to return to work. Tr. 305. By the end of May 2007, she had resumed "pretty much all her regular work activities." Tr. 304. Soon after, however, she was fired, she believes, as retaliation for having filed a worker's compensation claim. Tr. 304; but see Tr. 315 (Plaintiff reports that she was "laid off" in 2007). She collected unemployment benefits. Tr. 46. By the end of 2007, her treating physician, Dr. Gregory Austin, opined that "[s]he obviously could be in alternative work with limitations of no lifting over 25 pounds." Tr. 298, 299. Nevertheless, she now claims she decided not to look for another job because she believed she was in too much pain. Tr. 46. Instead, on September 15, 2008, without the assistance of an attorney, she filed her first set of applications for DIB and SSI, alleging onset of disability in May 2007. Tr. 158, 165. She was 49 as of the onset date; because she has not worked since, she is insured for Social Security purposes only through the end of 2012. Tr. 183.

A. First Disability Applications

Plaintiff's 2008 applications alleged disability since May 2007 as a result of bilateral shoulder pain, neck pain, knee pain, depression, PTSD, poor memory, anxiety, nightmares and stomach pain. Tr. 86. The only treating source opinion from this period is that of Dr. Austin, who opined that she is able to work with a limitation only on lifting more than twenty-five pounds. Tr. 298. Otherwise, her medical records do not reflect any seriously limiting condition. For example, during 2009, her primary care physician at the Rhode Island Hospital primary care clinic, [2] Dr. Lakshmi Ravindran, treated her complaints of pain with over-the-counter analgesics. E.g., Tr. 472-73. She was also treated for depression, but the clinic notes in November 2009 record that "[h]er depression is stable." Tr. 320, 465-66, 468. No other mental health treatment was recommended.

In October 2008, Dr. Erik P. Purins, a state agency physician, reviewed Plaintiff's medical records and concluded that she could perform light work, with limitations on lifting more than ten pounds frequently and twenty pounds occasionally, as well as on overhead reaching; his opinion refers to Dr. Austin's conclusions. Tr. 308-14. In December 2008, state agency psychologist, Dr. Louis Turchetta, performed a consultative psychological evaluation. Tr. 315. He assigned a Global Assessment of Functioning ("GAF") score of 50;[3] based on a mental status examination that notes "difficulty maintaining attention and concentration." Tr. 316-17. In January 2009, state agency psychologist, Dr. J. Stephen Clifford, prepared a mental RFC assessment; he found moderate limitations in her ability to understand, remember and carry out detailed instructions, in attention and concentration and in the ability to respond to changes in the workplace. Tr. 329-47. In reliance on Dr. Turchetta's observations, he noted that her concentration and short term memory are poor and found that she is limited to simple directions and simple repetitive tasks. Tr. 345.

On February 18, 2009, Plaintiff's first set of applications were denied initially. Tr. 86. A few months later, Dr. Ravindran observed that testing to determine the etiology of Plaintiff's complaints of muscle pain was negative; he had considered chronic fatigue syndrome, fibromyalgia or somatization of depression but made no diagnosis. Tr. 473. In light of an increase in the severity of her depression, he recommended psychological therapy, in addition to medication, and made arrangements for her to start treatment at Kent Mental Health Services ("Kent"). Id. At about the same time, Dr. Michael Slavit, a state agency psychologist, reviewed the updated record, including Dr. Ravindran's new treatment notes, and concurred with Dr. Clifford's January 2009 assessment. Tr. 347.

On October 31, 2009, Plaintiff's request for reconsideration of the adverse decision on her first set of disability applications was denied. Tr. 91. Although the notice from the Social Security Administration ("SSA") plainly advised that Plaintiff had the right to request a hearing if she did not agree with the decision, Tr. 91, Plaintiff did nothing. Sixty days later, the adverse decision became final.

B. Second Disability Applications

Within one year of the denial of the first set of applications, this time with the assistance of an attorney, Plaintiff filed her second set of applications on February 3, 2010. Tr. 289. They allege the same onset date and claim similar disabling conditions: major depressive disorder, PTSD, an anxiety disorder, a pain syndrome, carpal tunnel syndrome, De Quervain's syndrome, right shoulder tendinitis and other conditions not relevant to this proceeding. Tr. 21-22, 39. At the same time, Plaintiff requested reopening of the prior claims. Tr. 41, 293.

1. Mental Health

Based on the referral by Dr. Ravindran, in November 2009, Plaintiff began mental health treatment at Kent. An initial assessment resulted in diagnoses of major depression, PTSD and an anxiety disorder, as well as a GAF score of 45.[4] Tr. 351, 357. Kent psychologist Dr. Tamra Ringeling developed a treatment plan and conducted approximately nine counselling sessions. In June 2010, Plaintiff was discharged at own her request to take a "treatment holiday, " having "accomplished tx goals... depression & anxiety no longer interfere c0304 daily functioning." Tr. 420-21. At discharge, Dr. Ringeling opined that the depression was "in remission" and opined to a dramatically improved GAF score of 75. Tr. 416. After discharge by Kent, Plaintiff continued to see her primary care physician, Dr. Ravindran, for mental health treatment. In July 2010, Dr. Ravindran described her mental status as stable, and in September 2010, he noted that her depression was under reasonably good control. Tr. 444-45, 533.

In May 2010, state agency psychiatrist, Dr. Charles Hale reviewed the evidence and recommended a complete mental status evaluation. Tr. 414. In June, state agency psychologist J. Stephen Clifford reviewed the case and noted that the references to memory loss were not supported by memory testing and echoed the need for a psychiatric consultative examination. Tr. 415. In response, in July 2010, Plaintiff underwent a consultative psychological evaluation conducted by state agency psychologist, Dr. William Unger. Tr. 501. He found symptoms of depression, that Plaintiff's attention, concentration and task persistence were poor, but that she denied hallucinations, delusions, manic symptoms or suicidal ideation. Tr. 504. No symptoms of PTSD, panic disorder, or a formal anxiety disorder were reported or observed. Tr. 504. Dr. Unger assigned a GAF score of 55.[5] Tr. 505.

In August 2010, state agency psychologist Dr. MaryAnn A. Paxon reviewed the file, including Dr. Turchetta's report from the prior application, the Kent records, Dr. Ravindran's notes and Dr. Unger's report. She prepared a mental RFC that concluded that Plaintiff was moderately limited in attention and concentration and the ability to understand, remember and carry out detailed instructions, to complete a work week without interruptions and to respond to changes in the work setting, but otherwise not significantly limited. Tr. 497-99. On August 27, 2010, Plaintiff's new applications were denied initially. Tr. 99. In October 2010, state agency psychologist Dr. Michael Slavit reviewed the updated medical record and agreed with Dr. Paxson's assessment. Tr. 508. On January 4, 2011, Plaintiff's request for reconsideration of the adverse decision was denied. Tr. 103. She requested a hearing, set for February 2, 2012.

Following the administrative denial, in the spring of 2011, Dr. Ravindran's notes reflect a worsening of Plaintiff's depression. Tr. 525, 530. Several months before the hearing, after a gap of over a year, Plaintiff returned to Kent for a mental health assessment in October 2011. Instead of seeing a psychologist, she had an initial meeting with Priscilla Heslin, a licensed social worker, who diagnosed manic/depressive disorder, PTSD and an unspecified anxiety disorder, assessed a GAF score of 47 and developed a treatment plan, which included a notation that Plaintiff is "looking for a new job." Tr. 548-49, 562. Plaintiff apparently saw Ms. Heslin for treatment once, on November 1, 2011. Tr. 559. Her notes from that session state that Plaintiff was cooperative, appropriate in talk, speech, behavior and appearance, adequate in mood, though sad/depressed, and that no other symptoms (such as hallucinations or delusional beliefs) were observed. Tr. 559-60. Less than two months later, on December 28, 2011, Ms. Heslin filled out a mental RFC questionnaire form opining that Plaintiff has no useful ability to do unskilled work, in effect that she is almost completely dysfunctional. Tr. 568-69. Contrary to the record and her own treatment notes, Ms. Heslin also opined that Plaintiff had hallucinations, recurrent severe panic attacks and other symptoms. Tr. 567. Ms. Heslin is the only treating source whose opinion supports the conclusion that Plaintiff is disabled.

2. Physical Health

Plaintiff's medical record reflects complaints of pain but no aggressive treatment. To develop the record, in April 2010, state agency physician Dr. Okosun Edoro performed a consultative examination to explore neck, shoulder and back pain and carpal tunnel syndrome. Tr. 410. Examination of Plaintiff's spine showed some tenderness with mild limitation of motion. Tr. 411-12. Otherwise, she exhibited negative straight leg raising, the ability to walk with a normal gait and squat without difficulty, full range of shoulder motion (despite some tenderness) and no swelling or tenderness of hand or wrist joints; Dr. Edoro found full range of motion and normal sense of touch and bilateral grip strength in both hands, noting only that Tinel's sign was positive bilaterally, showing possible nerve irritation. Tr. 411-12. In April 2010, Dr. Joseph Callaghan, a state agency reviewer, concluded that Plaintiff could stand/or walk for six hours a day and sit for six hours a day based on the absence of objective findings of carpal tunnel syndrome, the absence of surgery and limited treatment for the other complaints. Tr. 402-09. In August 2010, Plaintiff's applications were denied initially. Tr. 99. Nerve conduction studies and an EMG in October 2010 were normal, with no sign of carpal tunnel syndrome. Tr. 511. In connection with reconsideration, in December 2010, Dr. Henry Laurelli reviewed the updated record and affirmed Dr. Callaghan's April 2010 assessment. Tr. 509. No treating source opined to the contrary. In January 2011, her request for reconsideration of the adverse determination was denied. Tr. 103.

During 2011, Plaintiff continued to see her primary care providers about her complaints of generalized body aches, low back pain and left wrist and forearm pain. Tr. 527. With the persistence of these complaints, Dr. Ravindran referred Plaintiff to a rheumatologist, Dr. Candace Yuvienco, who noted that fibromyalgia and osteoarthritis contribute to her pain, though it is not clear who diagnosed those conditions. Tr. 522, 525. Dr. Yuvienco did diagnose De Quervain's tenosynovitis in the left wrist due to repetitive trauma, but noted that the pain resolved with a steroid injection; she also recommended physical therapy to address shoulder pain, concluded that Lyrica was helping with the other pains and made an appointment for Plaintiff to return for follow-up in six months. Tr. 521-22.

II. Travel of the Case

After Plaintiff's applications were denied initially on August 27, 2010, and on reconsideration on January 4, 2011, Tr. 82-85, 99-108, Plaintiff sought a hearing before an ALJ, which was held on February 2, 2012. Tr. 37, 109. At the hearing, Plaintiff was represented by counsel. She testified with the assistance of an interpreter; vocational expert Paul Murgo and Plaintiff's daughter Jenda Chi also testified. Tr. 37-77. On February 12, 2012, the ALJ issued a decision that denied Plaintiff's applications and rejected her request to reopen her prior applications. Tr. 16-36. Plaintiff subsequently sought review by the Appeals Council, which denied her request on July 26, 2013, making the ALJ's decision final. Tr. 1-6. Plaintiff timely filed this action. Unlike her first applications, Plaintiff's second applications were consistently pursued with the assistance of an attorney.

III. The ALJ's Hearing and Decision

At the hearing, Plaintiff testified that she had been fired in May 2007 and had not looked for work after that due to pain in her shoulder and hands. Tr. 45-46. She claimed she can only sit for twenty minutes at a time, stand for ten minutes, walk for twenty minutes, lift and carry only eight pounds (and for no more than three minutes). Tr. 46-47. She asserted that she has trouble using her hands (and can write only briefly) and arms for repetitive actions and overhead reaching. Tr. 48. She has trouble using her legs for operation of foot controls and with stooping, crouching and kneeling. Tr. 48-49. She has problems with memory and concentration, stress and interacting with coworkers and supervisors. Tr. 49. She claimed that she does virtually no house chores, does not shop, never visits friends or relatives, goes to religious events only twice a year and has no hobbies. Tr. 51-52. During the day, she watches a little television and takes four rest breaks (thirty minutes each). Tr. 52.

The vocational expert, Paul Murgo, testified that Plaintiff's past jobs as an assembler and fabric inspector are light and unskilled. Tr. 63. The ALJ asked Mr. Murgo to assume that Plaintiff: 1) is limited to lifting and carrying no more than twenty-five pounds; 2) can stand and walk at least six hours in an eight-hour work day and can also sit for six hours; 3) can occasionally crawl and reach above shoulder level with her right arm; 4) would have to avoid all exposure to hazardous machinery and heights; and 5) is limited to simple, routine, repetitive tasks in a stable environment. Tr. 70. Given such limitations, Mr. Murgo opined that Plaintiff should be able to do both her past light jobs. Tr. 71.

In his written decision, the ALJ first found that Plaintiff met the insured requirements of the Act through December 31, 2012. Tr. 21. At Step One, he found that Plaintiff had not engaged in substantial gainful activity since May 30, 2007, the date she allegedly became disabled. Id. At Step Two, he found that Plaintiff had established the severe medically determinable impairments of major depressive disorder, PTSD, an anxiety disorder, a pain syndrome and right shoulder tendonitis. Tr. 21-22. Finding no probative evidence to establish any significant work limitations from either carpal tunnel syndrome or De Quervain's syndrome, he declined to find that they constitute serious impairments. Id. He based this finding on the absence of atrophy or specific manipulative limitations, the normal tests from October 2010, the absence of any recommendation for surgery and the resolution ...


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