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Howcroft v. Colvin

United States District Court, D. Rhode Island

April 29, 2016



          PATRICIA A. SULLIVAN, Magistrate Judge.

         This 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. § 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. § 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.

         I. Background Facts

         A. Plaintiff's Background

         Plaintiff, 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.

         For the 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.

         1. Medical History - Fibromyalgia

         Plaintiff 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.

         At 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. 293.

         At the 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.

         At the 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.

         2. Mental Health History - Depression

         In 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.

         The 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[1] 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").

         Plaintiff 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"), [2] 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.

         Plaintiff's 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. 51-52.

         Plaintiff's 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")[3] 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.

         B. Opinion Evidence

         The 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"[4] 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").

         The 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.

         On 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.[5] Tr. 108.

         During 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. 382.

         On March 5, 2014, Plaintiff finally[6] 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.[7] 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."[8] Tr. 349. By contrast with Nurse Hickey, who diagnosed anxiety but is not an acceptable medical source, [9] Dr. Unger opined that Plaintiff did not display symptoms consistent with anxiety disorder. Tr. 349.

         The 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.

         C. Plaintiff's Statements

         In a 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.

         At the 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.

         Regarding 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 ...

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