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Cruz v. Colvin

United States District Court, D. Rhode Island

February 18, 2016



PATRICIA A. SULLIVAN, Magistrate Judge.

This matter is before the Court on Plaintiff's 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"). Because Plaintiff's son, the original claimant, Luis Fonseca, tragically died for reasons not disclosed in the record, Tr. 205, before the Appeals Council decision, only Plaintiff's DIB appeal remains pending.[1] Plaintiff contends that the Administrative Law Judge ("ALJ") committed reversible error by failing properly to evaluate the opinions of a physician and a psychologist, both of whom opined based on one-time consultative examinations. Defendant Carolyn W. Colvin ("Defendant") 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 entire record, I find no material legal error and that the ALJ's findings are well supported by substantial evidence. Accordingly, I recommend that Plaintiff's Motion to Reverse with a Remand for Rehearing of the Commissioner's Final Decision (ECF No. 7) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 10) be GRANTED.

I. Background Facts

A. Plaintiff's Relevant Background

A "younger" claimant, Luis Fonseca was twenty-seven years old at the time of his alleged disability onset date. Tr. 47. He had an eleventh grade education and past work experience as a roofer, assistant retail store manager, busboy and hotel houseman. Tr. 193-202, 213. His roofing job lasted for several years and yielded income of up to $26, 000 in 2006. Tr. 198-99. After an interruption due to hernia surgeries in 2009 and part of 2010, Tr. 51, 193, he worked for a year and a half as an assistant store manager, earning as much as $8, 500 in 2011. Tr. 48, 194. Although the medical record reflects that the surgery was over a year later, he testified that he stopped working at the alleged onset of disability on July 15, 2011, because of heart surgery. Tr. 22, 48-49.

As the ALJ found, Mr. Fonseca suffered from serious heart issues. Tr. 25. Severe mitral regurgitation resulted in major surgery at Rhode Island Hospital on August 1, 2012. Tr. 298. Soon after, Mr. Fonseca was rehospitalized for fever and possible pericarditis. Tr. 300-03. He also was treated with blood thinners for atrial fibrillation ("Afib"). Tr. 332. The heart surgery incision resulted in a ventral hernia that had to be surgically repaired on April 26, 2013. Tr. 404. Mr. Fonseca's high blood pressure was treated with various medications. Tr. 270. Notwithstanding Mr. Fonseca's persistent complaints, the medical record reflects that this treatment was efficacious. For example, at a January 29, 2013, appointment at the Rhode Island Hospital ("RIH") Medical Primary Care Unit, he told one of his primary care providers that he was "same old, same old, " with no new concerns, no complaints, no numbness, weakness, chest pain or other neurological symptoms. Tr. 347. By August 2013, his cardiologist described his cardiac condition as stable and, in September 2013, his echocardiogram revealed only mild mitral regurgitation. Tr. 641-43.

Apart from cardiac impairments, Mr. Fonseca complained of pain. He went several times to the emergency room complaining of chest pain, numbness, weakness and headache, resulting in consideration by emergency room staff of transient ischemic attack ("TIA") or complex migraine. All of the objective testing done during these visits resulted in largely normal brain findings. Tr. 476-78 ("no acute intracranial pathology"); Tr. 482-93 (MRI brain is negative; kidney stone diagnosed, but "urology feel stone will be able to be passed"); Tr. 624-30 (physical examination normal). During one of these visits, Mr. Fonseca left the hospital against medical advice and did not seek further treatment. Tr. 624, 630. Although some records refer to a history of TIA or migraine, e.g., Tr. 494, 640, it is not clear whether either was ever conclusively diagnosed. These complaints of chest pain are complicated by repeated references to opioid dependence, including the suggestion that Mr. Fonseca's complaints of pain were exaggerated to induce providers to prescribe opioids. For example, on November 27, 2012, Dr. O'Brien noted that he complained of pain, could not describe its "quality nor severity" and became angry and aggressive when the doctor resisted prescribing an opioid to treat it. Tr. 351-52 (warning that "he was taking dangerous combinations of medications... and that he is at risk of injury, respiratory/CNS depression or even death if he continues in his present pattern"). Similarly, at a January 29, 2013, appointment with Dr. O'Brien at the RIH Primary Care Unit, the record reflects a confrontation with Mr. Fonseca regarding the Pain Committee's decision to refuse further opioid prescriptions because he had been seeing multiple providers seeking opioid prescriptions (such as complaining of pain at emergency rooms and to an urgent care provider), his false denial of marijuana use as demonstrated by a positive drug screen, his procurement of prescriptions for benzodiazepine from multiple providers (a pattern flagged by the Rhode Island Assistance Program), and other "multiple red-flags for misuse or abuse of [opioid] medication." Tr. 347-49.

Mr. Fonseca's other complaint of pain focuses on his back, which he began to mention in late 2013. At first, it appeared to be related to other conditions. Tr. 483-85 (September 2013 complaint of back pain leads to discovery of kidney stone). Then, in October 2013, an MRI disclosed "degenerative changes of the spine." Tr. 580. And in December 2013, a second MRI resulted in the diagnosis of disc protrusion; the treatment note arising from this diagnosis states, "back pain... well controlled on Flexeril." Tr. 593, 636. At the hearing, Mr. Fonseca testified that he had recently begun treating with a Dr. Hendell, who said he would need back surgery. Tr. 55. There is no record reference to such a recommendation.

Although Mr. Fonseca's claimed mental impairments are a critical component of his appeal, his mental health treatment record is limited. For most of the relevant period, he was treated for depression and anxiety by the prescription of medication by providers at the RIH Primary Care Unit; after he switched primary care providers from RIH to Dr. Mason of Anchor Medical, he apparently continued to be prescribed medication to treat depression. Tr. 270, 315. Apart from medication, there is no treating record reflecting any psychiatric evaluation, hospitalization, [2] therapy or other mental health treatment. The few record references to the effectiveness of treatment suggest that his symptoms were controlled by medication. See, e.g., Tr. 316 ("occasional anxiety outburst controlled by lorazepam"); Tr. 642 ("Psychiatric - negative"). One notable aspect of Mr. Fonseca's mental health treatment is the increasing discomfort of the RIH Primary Care Unit team about prescribing mental health medications (particularly benzodiazepines) without a psychiatric evaluation. Tr. 318, 349. Mr. Fonseca kept assuring them that he had an appointment at the Providence Center. Tr. 349, 354. Dr. O'Brien expressed skepticism - "it is also unclear at this time from Mr. Fonseca whether this was an actual psychiatry appointment." Tr. 354. At the hearing, Mr. Fonseca testified that he had seen a counselor at the Providence Center twice in 2013 and did not return because "[t]hey're booked." Tr. 64-65. However, his attorney confirmed that there are no Providence Center treating records. Tr. 65.

Also pertinent to the claim of disabling mental health impairments are the record references to Mr. Fonseca's mental status. With no treating mental health provider involved with Mr. Fonseca's care, these are found in the notes pertaining to treatment of his physical issues. None of them reflect any negative mental health findings. See, e.g., Tr. 277 ("Awake, alert, oriented x 3 with normal speech and mentation"); Tr. 306 ("Alert and oriented x3, no acute distress"); Tr. 422 ("Psych: Behavior, mood, and affect are within normal limits"); Tr. 441 ("pleasant, NAD"); Tr. 450 ("Behavior is cooperative"); Tr. 490 ("Psych: Negative for depression, anxiety, suicide ideation, homicidal ideation, and hallucinations.... Awake, alert, with orientation to person, place and time. Behavior, mood and affect are within normal limits.").

B. Opinion Evidence

On December 15, 2012, shortly before the RIH Primary Care Unit confrontation regarding opioids, benzodiazepine and marijuana, Tr. 349, Dr. Daniel Harrop performed an examination and provided physical and mental opinions, apparently at the request of the Rhode Island Department of Human Services. Tr. 333. Apart from a mental status examination, the report does not describe what sort of physical examination, clinical techniques or tests Dr. Harrop employed, if any, or whether he reviewed any of the medical record. Tr. 337-41. There is no indication that Mr. Fonseca disclosed to Dr. Harrop the pattern of seeking opioids and benzodiazepine from multiple providers, or his ongoing use of marijuana. In his report, Dr. Harrop opined that, due to "cardiac problems, " Mr. Fonseca could sit for four out of eight hours, stand and walk for less than two hours, occasionally lift and carry up to ten pounds, occasionally bend/stoop, and frequently reach and bend. Tr. 333-35. Dr. Harrop also concluded that "emergency" cardiac surgery and related medication had caused "permanent" cognitive damage, which was coupled to a longstanding history of depression and psychosis, resulting in marked or severe limitations in virtually every mental functional category. Tr. 335, 342.

On April 4, 2013, psychologist Dr. Jorge Armesto performed a consultative examination of Mr. Fonseca at the request of Disability Determination Services ("DDS"). Based on a clinical interview, record review and results from cognitive and achievement testing, Dr. Armesto found appropriate orientation to person and time, but not place, coherent thought processes, grossly intact concentration and attention, normal speech, sad, nervous and anxious affect/mood, no current suicidal or homicidal ideation, no evidence of delusional or psychotic thinking, some memory problems, and decreased psychomotor functioning. Tr. 385-88. Mr. Fonseca described feeling "lost" and reported a history of fire setting and self-mutilation, primarily through self-tattooing and at least one instance of burning himself with an iron, as well as past auditory hallucinations. Tr. 387. Testing revealed a below-average non-verbal intelligence quotient (IQ) of 82, with significant weakness in reading, sentence comprehension, math computation, and spelling. Tr. 385-86. Dr. Armesto assessed Mr. Fonseca's cognitive functioning with an MMSE-2 standard score of 98 and global assessment of functioning with a GAF score of 47.[3] Tr. 387-88. He diagnosed mood disorder, anxiety disorder, marijuana abuse, learning disorder and personality disorder and opined that the "ability to respond to customary work pressures is impaired." Tr. 385, 388.

On April 11, 2013, state agency psychologist Dr. Michael Slavit reviewed the entire record, including Dr. Armesto's test results, and concluded that the personality disorder was severe, while anxiety, depression, learning and substance abuse disorders were all non-severe; he opined that Mr. Fonseca could perform routine tasks for two-hours at a time for a total of eight hours, and could manage brief, superficial interactions in a work setting. Tr. 82-83, 94-95. In September 2013, state agency psychologist Dr. Jeffrey Hughes reviewed the entire record again on reconsideration and opined to the same conclusions. Tr. 110-11, 125-26.

On April 25, 2013, state agency physician Dr. Yousef Georgy reviewed the record as of that date; focusing on the "good result" with the mitral valve repair, he concluded that none of Mr. Fonseca's physical impairments were severe and did not prepare an RFC opinion. Tr. 79. In October 2013, state agency physician Dr. Phyllis Sandell reviewed the record on reconsideration; she found that both heart disease and recurrent arrhythmias were severe impairments. Tr. 120. Nevertheless, she opined that Mr. Fonseca could lift and carry fifty pounds occasionally, and twenty-five pounds frequently; could sit, stand and/or walk for six hours out of an eight-hour workday; could never climb ladders, ropes or scaffolds; ...

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