United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, Magistrate Judge.
administrative appeal focuses on the credibility of a
disability claimant suffering from fibromyalgia and
depression. It is before the Court on Plaintiff Nicole
Howcroft's motion for reversal of the decision of the
Commissioner of Social Security (the
"Commissioner"), denying Disability Insurance
Benefits ("DIB") under 42 U.S.C. Â§ 405(g) of the
Social Security Act (the "Act") based on errors
made by the administrative law judge ("ALJ") that
taint his credibility finding. 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. Â§ 636(b)(1)(B).
Having reviewed the entire record, I find that the ALJ's
findings are sufficiently supported by substantial evidence
and recommend that Plaintiff's Motion to Reverse the
Decision of the Commissioner (ECF No. 13) be DENIED and
Defendant's Motion for an Order Affirming the Decision of
the Commissioner (ECF No. 14) be GRANTED.
a younger individual, was forty-one years old when she
stopped working on January 6, 2013, her alleged
onset-of-disability date. See Tr. 180. She had attended
college for two years at the Community College of Rhode
Island and received her medical assistant certification from
the Sawyer School in 1994. Tr. 45, 346. She had been married
and, as of the hearing date, had a sixteen-year-old son and a
twenty-two year old daughter; for much of the relevant
period, she lived in a house with her husband of many years,
their two children, her daughter's child and briefly, her
daughter's boyfriend. By the end of the relevant period,
Plaintiff and her husband had separated and she was living
alone with her son. Tr. 45, 49, 57, 347.
two years before she stopped work on January 6, 2013,
Plaintiff had been employed at the Katharine Gibbs School as
an instructor in the medical assistant program; for four
years prior to that, she worked at the Sawyer School, first
as an instructor and then as a site administrator. Tr. 46-47,
49, 71, 213, 224. After stopping work, she collected Rhode
Island Temporary Disability Insurance ("TDI") and
then unemployment benefits, which ended in February 2014. Tr.
48, 52. Shortly before the ALJ hearing in September 2014,
Plaintiff accepted a part-time (four hours a week) position
with the adult education section of the Cranston school
department, a former employer, which had asked her to develop
and then teach an educational program. Tr. 49, 53.
Medical History - Fibromyalgia
was twenty-six when she was diagnosed by a rheumatologist
with fibromyalgia. Tr. 332. After the diagnosis, she was
treated initially by specialists, but by early 2012, a year
before her alleged onset date, she was receiving fibromyalgia
treatment from her primary care physician, Dr. Matthew
Salisbury, who prescribed medication for pain, with increased
doses, including opiates, to address fibromyalgia flares. Tr.
281-326, 334-41, 396-406. According to her testimony,
Plaintiff left her job as an instructor at the Katharine
Gibbs School on a medical leave in early 2013 because "I
was starting to get really sick at the time, and that's
when I was pulled out of work by the doctor." Tr. 47.
However, there is no record reference reflecting that any
physician advised her to take a medical leave of absence; the
only medical record for the period immediately preceding the
date of onset is the note of her primary care physician, Dr.
Matthew Salisbury, which focused largely on stress related to
family conflict as a result of which Plaintiff was
"feeling very overwhelmed emotionally" and had
experienced a fibromyalgia flare. Tr. 295-96. While Dr.
Salisbury increased the dose of one medication to address the
flare and made a referral for psychotherapy, there is no
reference suggesting that he opined that Plaintiff needed a
leave from work. Tr. 295.
Plaintiff's next appointment with Dr. Salisbury on
January 23, 2013, his note confirms that she would be
"OOW [out of work] for another month, " that
Plaintiff had "really clicked" with the therapist,
that she was "looking forward to... going forward with
her life, " and that "[s]he has noted some trouble
with flare of fibromyalgia pain." Tr. 293. On physical
examination, Dr. Salisbury recorded no findings of any
matters of concern and observed that she was "well
developed well nourished and in no acute distress." Tr.
293. He scheduled a follow-up appointment in a month. Tr.
end of February 2013, Plaintiff had another fibromyalgia
flare because she stopped taking one pain medication due to
insurance issues; Dr. Salisbury noted that she
"continue[s] OOW as she believes that she is not yet
ready to return." Tr. 291. In March 2013, Plaintiff
complained of arm and hand pain and Dr. Salisbury continued
her medications, noting that she could use opiates for
breakthrough. Tr. 289. At the same appointment, Dr. Salisbury
noted that he talked to her about "making a plan to
resume work as she has been out for a long time." Tr.
289. In May 2013, Plaintiff's pain flared after she
wrenched her back and ankle while carrying laundry upstairs.
Tr. 283. Noting that the incident made the pain hard to
control, Dr. Salisbury temporarily increased her opiate dose.
Tr. 283. In August 2013, when she experienced pain in her
upper back due to whiplash from a motor vehicle accident, Dr.
Salisbury made no change in medication dosage, but continued
oxycodone on "very slow ongoing taper." Tr. 336. In
October 2013, Dr. Salisbury noted that Plaintiff was weaning
down on opiates, taking a lower dose, "with overall good
effect, " and no significant "constipation or
sedation." Tr. 338. In December 2013, Plaintiff had
another flare in her hands and arms; Dr. Salisbury referred
her to a specialist but the record does not reflect that she
followed up on this referral, apparently because of lack of
money for the copay. Tr. 340, 405. In early 2014,
fibromyalgia pain flared again because Plaintiff had run out
of medication three weeks prior; Dr. Salisbury increased the
dose of one of her medications. Tr. 403. In June 2014, Dr.
Salisbury noted swelling of her hands and feet; he advised
her to stop one medication and prescribed a new medication.
Tr. 396. As Plaintiff testified, this treatment got "rid
of the swelling." Tr. 66.
hearing, Plaintiff testified about the efficaciousness of Dr.
Salisbury's use of various medications for the treatment
of fibromyalgia: "I think I'm finally on the right
combination [of medication], because I was almost bedridden
when I was diagnosed with it years ago. It, kind of eases the
pain and gets me up a little bit." Tr. 67.
Mental Health History - Depression
addition to long-standing fibromyalgia, Plaintiff had
suffered from depression since childhood, although the record
does not reflect treatment until 2012. Tr. 348. She has no
history of inpatient psychiatric treatment. Tr. 346. During
the period beginning one year prior to onset, Plaintiff
received mental health treatment from four different sources.
earliest record reflecting mental health treatment is from
January 2012, when her primary care physician, Dr. Salisbury,
prescribed anti-depressant medication. Tr. 318. In April
2012, he noted that "[f]ollow up/depression, feels
better with new medicati[on]." Tr. 308. Even after he
believed she was treating with other mental
health providers, Dr. Salisbury continued to monitor
Plaintiff's mood and to prescribe certain mental health
medications. See, e.g., Tr. 281, 287, 401. To the extent that
he performed mental status examinations in the post-onset
period, the results appear to be largely normal. For example,
on January 23, 2013, at an appointment just two weeks after
the alleged onset of disability, he performed a neurological
examination and recorded: "judgement and insite nl,
memory nl. mood nl, no delusions or hallucinations. No
suicidal or homicidal ideations." Tr. 293; see Tr. 291
(Feb. 26, 2013: same); Tr. 289 (Mar. 27, 2013: "some
obvious psychomotor agitation is about at baseline, good eye
contact, well kempt, no SI/HI at this time").
began treatment with the second mental health provider at the
very end of 2012, when Dr. Salisbury referred Plaintiff to a
psychologist, Dr. Danielle DeSantis, for therapy. Tr. 295.
According to his note, the precipitant for the referral was
"sign[ificant] stress because of issues at home (her
daughter has a restraining order against the father of her
baby and he is threatening violence), financial things (she
is trying to sell her house), emotional issues (she and her
husband have been arguing a great deal)." Tr. 295-96.
While Plaintiff apparently saw Dr. DeSantis, who submitted an
opinion regarding Plaintiff's mental residual functional
capacity ("RFC"),  the length, nature and
intensity of the DeSantis therapy and whether Dr. DeSantis
performed any testing or employed other clinical diagnostic
techniques are all impossible to ascertain because Dr.
DeSantis provided no treating records. Further, the record
references to this therapy are inconsistent. On one hand, Dr.
Salisbury noted "weekly" therapy with Dr. DeSantis
starting in January 2013, resulting in "good progress,
" Tr. 285-93, and ending in April 2014, when Dr.
Salisbury recorded that Plaintiff was "transitioning...
away" from Dr. DeSantis. Tr. 401. By contrast, in March
2014, Plaintiff told a Butler Hospital physician, "that
she began seeing a therapist about 8 months ago but stopped
after approximately 6 sessions because she did not find it
helpful." Tr. 410. And Nurse Hickey noted that Plaintiff
was "no longer in therapy with Dr. DeSantis" on
January 14, 2014. Tr. 342.
third treating mental health provider is Brian Hickey, a
nurse at West Bay Psychiatric Associates. She began to see
him in May 2013, at the same time (according to Dr.
Salisbury) that she was still treating with Dr. DeSantis. Tr.
281, 283, 285. Nurse Hickey's treating notes are in the
record; they reflect a total of eight appointments from May
2013 until May 2014, all of which seem to be for medication
prescriptions. Tr. 276-80, 342-44, 390-95. As Plaintiff
explained to the ALJ, Nurse Hickey prescribed certain of her
mental health medications, while Dr. Salisbury continued to
prescribe others. Tr. 52. Nurse Hickey's notes are brief,
difficult to read, reflect one significant gap in treatment
and seem to contain only Plaintiff's subjective
complaints. See, e.g., Tr. 342 ("hasn't been seen in
four months); Tr. 343 ("still crying a lot"). They
do not appear to reflect any diagnostic techniques, mental
status examinations, testing or treatment apart from
medication. Oddly, Nurse Hickey seems to have repeatedly been
described by Plaintiff as a "psychiatrist" in her
statements about him to other providers. See, e.g., Tr. 285
("She has seen (finally) a psychiatrist (Dr.
Hickey")), 346 ("She indicated a history of
psychiatric services with Brian Hickey, M.D."), 384
("Pt began seeing an outpatient psychiatrist about 8
months ago"), 405 ("She has followed with her
psychiatrist who recently has change her abilify to
wellbutrin"), 410 ("referred to [Butler] from her
outpatient psychiatrist"). At the hearing, however,
Plaintiff confirmed that she knows that he is a nurse. Tr.
fourth mental health provider is Butler Hospital. Tr. 384-89.
She was admitted to the partial hospitalization program on
March 21, 2014, because of "worsening symptoms of
depression" due to chaos at home and a deteriorating
relationship with her daughter. Tr. 384, 410. On mental
status examination, Butler staff noted that Plaintiff
reported feelings of "inadequacy/worthlessness,
hopelessness, " "sad/depressed, anxious,
worried" mood and "depressed" affect, that she
had difficulty with concentration, reading and watching
television although she was able to attend to the interview,
that she had normal memory and intellectual functioning with
adequate insight and judgment and that she denied
hallucinations. Tr. 385-86. At intake, Butler assigned a
Global Assessment of Function ("GAF") score of 40,
which reflects impairment in reality testing or
communication; by the time she was discharged, her GAF was
assessed at 50 (serious impairment), with a score of 60
(moderate symptoms) for the preceding year. Tr. 387, 413.
Plaintiff did not complete the program; citing "pain and
fatigue" to explain one absence and "family
commitments" to explain two others, she attended three
of six scheduled days and was discharged because she was
"unable to attend regularly." Tr. 387. The record
does not reflect that Plaintiff sought further intensive
mental health treatment.
first opinion comes from Dr. DeSantis, the treating
psychologist who submitted no treating notes. Dated September
18, 2013, it was written nine months after onset and four
months after the filing of Plaintiff's DIB application.
Tr. 327-30. Part of the opinion is written on a form labeled
"Substance Abuse Materiality Questionnaire, " which
opines that Plaintiff has "major depression that
prevents her from functioning in all aspects of her
life" and "impacts her relationships, thinking,
behavior, and coping skills." Tr. 327. Noting that
"Nicole presents as hopeless, " Dr. DeSantis wrote
that "[s]he has difficulties with thinking clearly,
memory, concentration, & sustaining attention." Tr. 327.
Inconsistent with anything else in this record, Dr. DeSantis
wrote that "[s]he uses substances as a way to cope with
her depression" and concluded that "cognitive and
behavioral impairments affect her ability to hold and sustain
a job." Tr. 327-28. In the RFC portion of her opinion,
Dr. DeSantis recorded moderately severe to severe limitations
in every area of mental functioning. Tr. 329-30. Dr. DeSantis
provides no information about the basis for her opinion,
including how often she observed Plaintiff or whether she
relied on any testing or other clinical diagnostic
techniques, particularly with respect to the "cognitive
and behavioral impairments, " except for the telling
admission that she was not even sure what medications
Plaintiff was taking. Tr. 330. While Dr. DeSantis checked
"yes" to the question whether a psychological
evaluation had been performed, the only one in the record was
not done until March 2014, six months after Dr. DeSantis
signed her opinion. See Tr. 409-14 (Butler Hospital
"Initial Psychiatric Evaluation").
next opinion is based on a consultative examination performed
on September 25, 2013, by Social Security Administration
("SSA") consulting rheumatologist, Dr. J. Scott
Toder. Tr. 332. Plaintiff told him that she was being
followed for depression by a psychiatrist; she also reported
that she had been diagnosed with fibromyalgia at the age of
twenty-six. Tr. 332. On examination, Dr. Toder confirmed the
diagnosis of fibromyalgia, but observed no evidence of
swollen, warm or erythematous joints but rather found normal
gait, normal strength, normal reflexes and full range of
motion in all joints, with slight discomfort in knees and
shoulders and "[l]umbar flexion decreased 20% with the
patient noting low back discomfort." Tr. 332.
October 23, 2013, SSA consultant physician Dr. Kenneth
Nanian, reviewed the record, including Dr. Toder's
report; he opined that fibromyalgia was a severe impairment
and concluded that Plaintiff could lift up to ten pounds and
occasionally up to twenty pounds, could sit, stand or walk
for six hours in an eight-hour workday, could occasionally
perform postural activities but must avoid extreme
temperatures, humidity, vibration, pulmonary irritants and
workplace hazards. Tr. 113-15. Shortly after Dr. Nanian's
opinion was signed, Plaintiff's claim was denied
initially. Tr. 108.
the reconsideration phase, the treating nurse, Nurse Hickey,
submitted an RFC signed on January 15, 2014. Tr. 381-83. In
it, he acknowledged that no psychological evaluation had been
obtained but opined that Plaintiff's mental impairments
caused moderately severe to severe impairment in every area
of mental functioning. Tr. 381-82. He also filled in a
"Substance Abuse Materiality Questionnaire, " in
which he noted diagnoses of major depression, generalized
anxiety disorder and "chronic pain fibromyalgia."
Tr. 383. For "objective findings, " he cited poor
sleep, social anxiety, very depressed mood, low energy and
poor concentration, but provided no information regarding
whether those "findings" had been based on
Plaintiff's subjective report or on his own clinical
testing and observation. Tr. 383. He left blank the answer to
how pain affected Plaintiff's ability to function. Tr.
March 5, 2014, Plaintiff finally attended a consultative
examination with SSA psychologist Dr. William Unger. Tr. 345.
Dr. Unger noted his observations that she exhibited fair
hygiene, had a normal gait and made adequate eye contact. Tr.
345. During the clinical interview, Plaintiff told Dr. Unger
that she had been treating for "psychiatric services
with Brian Hickey, M.D. during the past six months, "
that she has trouble sleeping, relies on her husband for
household chores, maintains a driver's license and enjoys
reading, watching television, listening to music, playing
games with her granddaughter and occasionally talking to
friends, although she also reported that she isolates
herself. Tr. 346-47. During the clinical interview, she said
that she experiences auditory and tactile
hallucinations. Tr. 348. Dr. Unger's clinical
testing and observations resulted in findings of adequate
task persistence, insight, judgment, attention and
concentration; he noted poor short-term memory but grossly
intact long-term memory. Tr. 347-48. He diagnosed "major
depressive disorder, recurrent with mood congruent psychotic
features" and assessed a GAF score of "46 now"
and "48 during the previous year." Tr. 349. By
contrast with Nurse Hickey, who diagnosed anxiety but is not
an acceptable medical source,  Dr. Unger opined that
Plaintiff did not display symptoms consistent with anxiety
disorder. Tr. 349.
reconsideration file reviews were performed by SSA
psychologist Dr. Clifford Gordon and SSA physician Dr.
Navjeet Singh. Dr. Gordon provided his analysis on March 24,
2014, opining that Plaintiff has a severe affective disorder
that moderately limits her activities of daily living, social
functioning, and concentration, persistence, and pace, but
that she has had no episodes of decompensation of extended
duration. Tr. 125. Based on his findings, he opined that
Plaintiff could understand, remember and attend to simple,
routine, repetitive, familiar basic tasks, could complete
these tasks in two-hour blocks, could relate to coworkers and
supervisors if contact was minimal and superficial, but could
not work with the public and could follow through on basic
tasks and adapt to ordinary changes. Tr. 128-29. On April 2,
2014, Dr. Singh opined that fibromyalgia is a severe
impairment; based on this impairment, he concluded that
Plaintiff could lift up to ten pounds, and occasionally up to
twenty pounds, could stand or walk for four hours in an
eight-hour workday and sit for six hours in an eight-hour
workday, could occasionally perform postural activities but
must avoid concentrated exposure to extreme temperatures,
wetness, humidity, vibration, pulmonary irritants and
workplace hazards. Tr. 124, 126-27.
June 2013 Pain Questionnaire, Plaintiff wrote that she tries
to walk a mile a day but there are days when she cannot get
out of bed due to pain that (as of then) had been
debilitating for approximately six months. Tr. 231-32. In her
first Function Report, dated in June 2013 Plaintiff stated
that she does stretching exercises, basic cleaning and
straightening of the house, tries to take a walk, prepares
simple meals, picks up her son, drives, shops and attends
church two-to-three times a month. Tr. 234-37. She reported
no trouble with personal care, though she did report
difficulty with lifting, squatting, bending, standing,
walking, kneeling, climbing stairs, memory, completing tasks,
concentrating, using her hands and getting along with others.
Tr. 234-38. The second Function Report was prepared seven
months later. In it, Plaintiff reported that it was so
painful and difficult to bathe that her husband sometimes
assisted. Tr. 257. She did housework when she was able, could
walk up one flight of stairs, drove short distances, shopped
in stores and by computer, spent time watching television
"all the time" and socialized with a friend. Tr.
258-61. She reported problems with lifting, squatting,
bending, standing, reaching, walking, kneeling, talking,
climbing stairs, memory, completing tasks, concentrating,
understanding, following instructions, using her hands and
getting along with others. Tr. 261.
September 2, 2014, hearing, Plaintiff testified that she was
living with her sixteen-year-old son and had recently been
hired to work four hours a week developing an adult education
program for the Cranston school department that she would
teach upon its completion. Tr. 45-46. She said that this
part-time job was a struggle - unable to work four hours on
one day, she worked two hours on two days and in the past
month had missed two days of work. Tr. 62. She claimed that
her health problems affect her memory and concentration so
that, while she had been working full time, she made mistakes
and was frequently late or out sick. Tr. 50-53. Since she
stopped working, she spends her days lying in her room and
watching television, though she interacts with her son when
he comes home from school. Tr. 56. Nevertheless, she also
testified that she loads the dishwasher, sometimes sweeps,
does laundry, grocery shops with her son's help and still
drives (but has no car). Tr. 57-59. She claimed that she can
lift no more than five to eight pounds, walk for no more than
forty minutes and sit for only ten to fifteen minutes before
needing to move; she also alleged that she has trouble
writing and gripping and experiences constant leg pain. Tr.
59-60, 66. Her medications make her dizzy and fatigued,
although they reduce the pain, except for occasional flares.
Tr. 61, 66-67.
her admission that she collected unemployment from the end of
her entitlement to TDI until February 2014, Tr. 48, 52,
Plaintiff testified that she applied for unemployment after
she was "released" following the medical leave from
the Katharine Gibbs School because the school's closing
meant that there "was no position to go back to."
Tr. 48. While collecting unemployment, she testified that
"I was going to try to go back to work... I was actively
looking, " an effort ...