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Lodge v. Colvin

United States District Court, D. Rhode Island

January 5, 2015

JAMES LODGE, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

PATRICIA A. SULLIVAN, Magistrate Judge.

Plaintiff James Lodge stopped working in June 2002 after he was fired. From then until 2009 there is no record that he sought medical treatment for any impairment; nevertheless, on July 29, 2010, he applied for benefits claiming that he had been disabled since he last worked. After the application was filed, he initiated treatment, ultimately amending his onset date to November 9, 2010, to reflect the earliest period for which there are records arguably supporting his claim. He now contends that he has been disabled since November 9, 2010, because of bipolar disorder, manic-depressive disorder, major depressive disorder, paranoid schizophrenia, hallucinations, anxiety, post-traumatic stress disorder ("PTSD"), chronic obstructive pulmonary disease ("COPD"), back problems and obesity.[1] He is before this Court on his Motion to reverse the decision of the Commissioner of Social Security (the "Commissioner"), denying Supplemental Security Income ("SSI") under § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3) (the "Act").[2]

Plaintiff contends that the decision of the Administrative Law Judge ("ALJ") was infected by errors of law and not supported by substantial evidence because the ALJ did not assign controlling weight to the opinions of Plaintiff's treating psychologist Dr. Joshua Magee but accorded great weight to the examining agency consultant and substantial weight to the non-examining state agency consultants. 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 that the Commissioner's decision that Plaintiff is not disabled legally correct and well supported by substantial evidence. Accordingly, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 8) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 10) be GRANTED.

I. Background Facts

Born in 1965, Plaintiff was thirty-six when he stopped working and forty-five as of the amended alleged disability onset date of November 9, 2010. Tr. 16, 21, 181. He graduated from high school and attended college for three years, after which he worked as a waiter fairly consistently until January 2002 when he was hired and trained (spending a week in Italy) for a job in retail sales as a skincare consultant. Tr. 58, 211, 217. This job ended in June 2002, when he was fired; he never worked again. Tr. 210. According to his application, prepared before he engaged counsel, he moved in with his mother sometime after he stopped working and she took care of him. Tr. 182, 239-40. There are records suggesting that he lived in Florida for at least part of the time prior to 2009, the date of the first medical records in the file. Tr. 263. In his application, Plaintiff purported to explain this record gap, claiming that the records from his primary physician "have been lost as he has tried to obtain them so he does not know if we will find his medical history going back to 2002." Tr. 207. Inconsistently, in dropping his DIB claim, his attorney represented that "[t]he claimant... has not sustained more [treatment] since... '02;" in questioning her client, she stated, "you didn't see any doctors between [2002] until, I think, eight/nine years later." Tr. 38, 405-06. In any event, apart from Plaintiff's anecdotal statements, [3] there is no evidence of any disabling impairment prior to the amended onset date, November 9, 2010, even though Plaintiff had not been working for eight years.

The earliest available record is from Roger Williams Hospital, where Plaintiff was treated in the Emergency Department for acute bronchitis in April 2009. Tr. 324-32. Next is the record of primary care physician, Dr. Shahzad Khurshid, who treated Plaintiff from December 7, 2009, until June 9, 2010. His notes indicate that Plaintiff told him he was taking medications for blood pressure, anxiety, heartburn, attention deficit disorder, as well as Vicodin and Soma (a muscle relaxant) for "[l]ow back problems." Tr. 261. At intake, Dr. Khurshid's notes indicate that Plaintiff told him that he had "ch[ronic] back Pain, takes NASID, prn no help, " and that an imaging study would not be possible due to lack of insurance, though Plaintiff claimed that older records would support a prescription for Vicodin. Tr. 262. Based on what Plaintiff told him, Dr. Khurshid prescribed Vicodin, Xanax and Adderall; however, by June 2010, Plaintiff had still not produced records and Dr. Khurshid wrote that he "told him that I don't feel comfortable writing any narcotics. He need[s] to find new PCP he agrees." Tr. 265.

Two months later, on August 20, 2010, without the assistance of an attorney, Plaintiff filed applications for both DIB and SSI alleging that he had been disabled since June 1, 2002. Tr. 174, 181.

The first post-filing record is puzzling: on August 27, 2010, the office of Dr. Russell Settipane returned an inquiry from Disability Determination Services ("DDS") for records checked, "Not our patient, " while a DDS records request made on October 14, 2010, to Dr. Settipane has a hand note stating, "Do Not Have Any Recds on this Patient."[4] Tr. 267-69. However, there is also a "Physician Examination Report" form apparently signed by Dr. Settipane on October 26, 2010, opining that Plaintiff has asthma/COPD that "will require chronic lifelong treatment" and that he cannot walk or stand for even two hours and is moderately or markedly limited in all of the mental activities listed on the form. Tr. 270-73. Unsurprisingly, the ALJ declined to afford the Settipane opinion controlling weight because it is conclusory, fails to provide disabling limitations, and assesses Plaintiff's ability to work, which is an opinion reserved to the Commissioner; Plaintiff does not question these findings. Tr. 19.

Apart from these records, the only other treatment in the period between the filing of the application on July 29, 2010, and the amended onset on November 9, 2010, relates to Plaintiff's complaints of back pain. First, on October 5, 2010, he went to the Emergency Department of Roger Williams Hospital for lower back pain. Tr. 315. An x-ray ruled out fracture and disc spaces seemed within normal limits. Tr. 319. Plaintiff was sent home with ibuprofen, soma (a muscle relaxant) and tramadol. Tr. 322. On October 23, 2010, he saw chiropractor Dr. Roger Redleaf, who reported that Plaintiff was walking with a limp and forward lean; he provided a kind of treatment that usually is effective with mechanical low back pain, but it did not work for Plaintiff. Tr. 363. Dr. Redleaf recommended a diagnostic MRI to see what might be going on. Id.

To develop the record, on November 9, 2010, on a DDS referral, Plaintiff was sent for a psychological evaluation with Corrin Champagne, M.A., performed under the supervision of clinical psychologist Dr. Jorge Armesto ("the Champagne/Armesto evaluation"). Tr. 275-79. During the interview, Plaintiff claimed that he was first in mental health treatment at the age of 10, that he was sexually and physically abused as a child, that he began to experience auditory and visual hallucinations just before his alleged onset date in 2002, and that he experiences depressed appetite, insomnia, anxiety and depression so severe he spends most of the time in bed. Tr. 275-78. On mental status examination, Plaintiff was neatly groomed, with appropriate eye contact and good behavioral control, he was alert and oriented to time and place, his speech was within normal limits, his mood seemed fatigued, and his sustained attention and concentration were intact; a global assessment of functioning ("GAF")[5] score of 45 was assigned. Tr. 277-28. Ms. Champagne and Dr. Armesto noted diagnoses of major depressive disorder, recurrent, severe with psychotic symptoms, PTSD with delayed onset, and rule-out diagnosis of schizoaffective disorder. Tr. 278. The evaluation also records Ms. Champagne's observations of Plaintiff's apparent physical discomfort, getting out of his seat, stretching and leaning against the wall "in what appeared to be an effort to alleviate physical pain." Tr. 277.[6]

Also on November 9, 2010, DDS sent Plaintiff for pulmonary function tests in light of his claim of COPD; these tests showed no evidence of an obstructive ventilator defect, with forced vital capacity and single breath diffusing capacity all in normal range. Tr. 281. Notably, Plaintiff told the tester that he had not smoked for a year, id., though he testified at the ALJ hearing in 2012 that he has continued to smoke a pack a day. Tr. 35. Two weeks later, DDS sent Plaintiff for a third examination, by Dr. Seok Suh Lee, an internist. Dr. Lee's report records his observation that Plaintiff could not stand up, walk, sit or climb onto the examination table, which he claimed was due to back pain. Tr. 284. Nevertheless, Dr. Lee's opinion is inconclusive: he advised an MRI to diagnose what was going on with Plaintiff's lower back; apparently unaware that the testing had just been done and was all normal, he recommended complete pulmonary function tests. Also unaware of the Champagne/Armesto evaluation, he recommended a psychiatric evaluation to evaluate depression. Tr. 286.

On January 21, 2011, Plaintiff's claim was administratively denied. Tr. 117. Soon after, he engaged counsel. Tr. 123.

The first record of any mental health treatment of Plaintiff is a behavioral assessment at Comprehensive Community Action Program ("CCAP") on March 1, 2011. Tr. 305-12. In this mental status evaluation, Plaintiff was found to be well-groomed, cooperative, calm and appropriate, with depressed and anxious mood and normal speech. Tr. 310. His thought process was intact, hallucinations and delusions were not present, he had no suicidal or homicidal ideation, and he was fully oriented with intact memory, intact general knowledge, but minimally impaired judgment and insight. Id . No diagnosis was made, but his current GAF score was assessed to be 50, with 60 as his highest GAF.[7] Tr. 312. At CCAP, Plaintiff also continued to seek treatment for lower back pain. In February and March 2011, he saw Dr. Carol Chancro three times for "unbearable" pain. Tr. 287-92. At the last appointment, Dr. Chancro advised "that he is not a candidate for Vicodin or opioid stronger than tramadol given chronicity of back pain." Tr. 288. Soon after, he switched to the Rhode Island Free Clinic. Meanwhile, on April 19, 2011, his request for reconsideration of the denial of his disability application was denied. Tr. 126-28.

In April 2011, Plaintiff's new primary care physician, Dr. John Cece of the Rhode Island Free Clinic, referred him for a spinal MRI and for psychotherapy due to depression with anxiety. Tr. 294-96.

The spinal MRI was performed on April 15, 2011. Tr. 293. It revealed a small disc protrusion that impressed on the transiting right nerve root. Dr. Cece sent Plaintiff to neurosurgeon Dr. Stephen Saris who opined that the protrusion is a type that "generally causes no symptoms." Tr. 354. Rather, Dr. Saris found that Plaintiff's pain is a muscular issue and recommended exercise and weight loss, though Plaintiff did neither. Tr. 32-33, 354-57. Dr. Cece's summary of Dr. Saris's conclusion is unvarnished: "saw Dr. Saris stated nothing wrong it's in his head." Tr. 351. Plaintiff had a brief course of physical therapy from June 22 to July 8, 2011, at which point he was "progressing well." Tr. 364. Because the handwriting is illegible it is impossible to ascertain why this treatment ended a week later. Id.

Based on Dr. Cece's referral for mental health treatment, Plaintiff commenced therapy with psychologist Dr. Joshua Magee on May 16, 2011. Tr. 340. This therapy involved thirty-five sessions, ending a year later on May 21, 2012. Tr. 334-38, 340, 373-97, 398-401. A threshold observation about Dr. Magee's medical records is that every therapy note is headed with a list of diagnoses - PTSD, depression (major) and pain disorder associated with both psychological factor and general medical condition - yet there is no record reflecting that Dr. Magee ever performed a mental status examination or did anything other than supportive therapy. See Tr. 340 (intake interview focused on Plaintiff's self-description as suffering from anxiety and depression).[8]

Dr. Magee's notes reflect several themes that are pertinent to Plaintiff's claim. First, he focused on helping Plaintiff to improve his relationships with family and friends, including Plaintiff's relationships with romantic partners, with several sessions focused on one person and at least one discussion of ways for them to "have fun." Tr. 338, 376, 384-85, 391. Second, the therapy sessions reflect Plaintiff's activities, such as taking his mother to her thrice weekly medical appointments, completing hospital training and taking charge of changing his mother's feeding tube, dealing with negative feelings that might arise during his Thanksgiving meal with his family, going to a party and positive feelings that followed, and going to a bar and avoiding future conflict with someone he met there. Tr. 334-35, 375, 387, 390. Third, the therapy sessions address Plaintiff's worry about how he would live after his mother, by then in poor health, could no longer support him. Tr. 334, 336, 374, 386, 389. He describes his sisters' unwillingness to take him in and the possibility that he might move to Florida to live with a friend; he spends much time discussing his hope that "his persistence will pay off with his ongoing attempt to seek SSI." Tr. 336, 384, 385, 386, 389, 390, 395, 396, 397, 400. Finally, Plaintiff talked to Dr. Magee about managing anger, including his "anger about physicians sometimes suspect that he may be medication-seeking when in fact he is willing to try any treatment that could help with his back pain." Tr. 394. Notably, Dr. Magee's extensive notes make no reference to hallucinations, voices, [9] delusions, seclusion or the inability to get out of bed or leave home. The note from the final session states that "[d]uring treatment, [Plaintiff] showed significant progress in his ability to tolerate the distress that his interpersonal interactions and back pain cause him." Tr. 400.

At Dr. Magee's suggestion, Plaintiff had a consultation with psychiatrist Dr. Patricia Wold on February 28, 2012. Tr. 361. She prescribed psychiatric medication, but Plaintiff stopped taking it because he did not like the way it affected his sexual response. Tr. 361. While there are suggestions that Dr. Wold may have seen Plaintiff more than once, [10] the record reflects only one visit where his response to medication was the only issue covered. Tr. 361. As of the hearing, Plaintiff confirmed that he was not taking any psychiatric medication. Tr. 31, 37.

II. Travel of the Case

Plaintiff filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on August 20, 2010, with a protective filing date of July 29, 2010. Tr. 174-75, 181-87, 206.

On November 30, 2010, based principally on the Champagne/Armesto evaluation report, state agency psychologist Dr. J. Stephen Clifford reviewed Plaintiff's records and concluded that his affective and anxiety disorders are severe, resulting in moderate restriction of activities of daily living, maintaining social functioning, and maintaining concentration, persistence or pace. Tr. 79-80. Dr. Clifford prepared a Mental Residual Functional Capacity ("RFC")[11] Assessment, opining that Plaintiff retains the ability to "understand most directions but memory is reliable only for simple directions of 1-2-3 steps;" that Plaintiff's memory, attention and concentration were "adequate only for completion of simple tasks, " but that "[i]f limited to simple procedures, [he] retains ability to complete a normal eight hour work day and normal work week;" and that while he "would do poorly in a service type position where required to serve general public/customers, " he retains the capacity to "accept supervision but would be more effective in role [sic] in which social contact and demands were reduced." Tr. 84-85.

Plaintiff's physical limitations were assessed by an orthopedic file review performed by state agency physician Dr. Anselmo Mamaril, on January 13, 2011. Tr. 69-70, 78-79, 82-83. Despite Plaintiff's reports of severe back pain, Dr. Mamaril noted the absence of any evidence of degenerative disc disease or arthritis, neurological deficits, antalgic gait and muscle atrophy, as well as essentially normal x-rays; he nevertheless found that the pain could be related to obesity and factored severe obesity into his analysis.[12] Tr. 70. He concluded that Plaintiff's RFC is limited by the ability to lift only twenty-five pounds frequently, and to stand, walk or sit for six hours of an eight hour day. Tr. 82-83. The file was also reviewed on January 13, 2011, by state agency physician, Dr. Barbara Cochran, an internist, who concluded that COPD is not a severe impairment based on the normal pulmonary function tests and the lack of treatment or hospital visits. Tr. 70.

On January 21, 2011, Plaintiff's applications were denied initially. Tr. 117, 120. With the assistance of counsel, he ...


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