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Moreau v. Colvin

United States District Court, D. Rhode Island

August 17, 2016


          Ronnyann Moreau, Plaintiff, represented by Morris Greenberg, Green and Greenberg.

          Carolyn W. Colvin, Defendant, represented by Susan D. Beller, Social Security Administration.


          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"). Plaintiff contends that the Administrative Law Judge ("ALJ") erred in his evaluation of Plaintiff's credibility and that the ALJ's mental residual functional capacity ("RFC")[1] findings were not supported by substantial evidence. 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 the Decision of the Commissioner (ECF No. 10) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 11) be GRANTED.

         I. Background Facts

         A. Plaintiff's Background

         On her alleged disability onset date (March 1, 2012), Plaintiff was forty years old. Tr. 183. She had earned her GED and worked fairly consistently until the alleged onset of disability as a cashier, a leasing specialist, and a customer order clerk. Tr. 211. Her SSI and DIB applications were filed on June 26, 2012, claiming disability based both on physical impairments arising from migraines and arm, knee, back, wrist and elbow pain, and on mental impairments due to "bipolar, fear of death, depression, anxiety, impulsive behavior/outbursts." Tr. 210. Her claim of physical disability was rejected by the ALJ, who found that her physical impairments were non-severe and that her statements and testimony to the contrary lacked credibility. Plaintiff does not challenge these findings; her allegations regarding physical impairments will not be discussed further in this report and recommendation.

         Throughout the period of alleged disability, Plaintiff lived at times with some, at times with all, of her four children, a grandchild and unspecified pets. She was the primary caretaker for the younger children, including participating in the care of her grandchild. Tr. 279, 354. According to the medical record and her statements, she engaged in a wide range of activities, including light chores and laundry, driving, using public transportation, shopping, reading, attending her son's graduation and sports events, taking a vacation, texting friends and socializing with her mother. See, e.g., Tr. 22-23, 354. Also throughout the period of disability, in addition to her physical complaints, Plaintiff was treated for depression and anxiety, primarily by a nurse working with her primary care physician and by a licensed mental health counselor, as well as, for a six-month stretch, by a psychiatrist and once by the staff at Rhode Island Hospital's ("RIH") partial hospitalization program ("PHP"). These treating records are replete with her descriptions of her difficulties with depression and anger and the challenge of controlling her temper when she is around other people. See, e.g., Tr. 264, 371, 510, 518. Notwithstanding these concerns, the record reflects only one brush with the law - a disorderly conduct charge from an unspecified time in the past (not during the period of alleged disability) that resulted either in no incarceration or an overnight in jail and was expunged. Tr. 354, 368, 375. Over the course of the relevant period, Plaintiff's Global Assessment of Functioning ("GAF") score was assessed by various providers;[2] these scores, particularly following treatment, generally fell into range for moderate to mild symptoms or difficulties.[3] Despite her claims of anger and irritability directed towards other people, including anger with other patients when she received treatment in a group setting, the record does not reflect that Plaintiff engaged in violent or inappropriate behavior directed towards treatment providers. See, e.g., Tr. 273 (Plaintiff assessed by RIH staff as having cooperative manner and unremarkable speech); Tr. 369 (Dr. Rashid notes that speech, language and appearance normal); Tr. 451 (Plaintiff described by physical therapy provider as "pleasant, polite, anxious, motivated, cooperative"). Nevertheless, the mental status examinations reflected in the treating notes consistently record that her mood and affect are sad, depressed, anxious, angry, irritable or tearful. See, e.g., Tr. 274, 369; see Tr. 294 (Nurse Pio does not do full mental status examination but does review depression guidelines and finds Plaintiff meets criteria).

         B. Mental Health History

         Prior to onset, Plaintiff was treated in the RIH PHP from March 3 to March 13, 2011, for family stress, depression, social isolation, tearfulness, and anger outbursts, resulting in her fear that she would act out on her anger impulses. Tr. 264. At discharge, staff noted an improvement of her mood and a reduction of the symptoms of depression, anxiety and anger. Id . The RIH staff made an intake assessment reflective of major impairment (GAF 40), but increased their assessment to moderate symptoms (GAF 55) when she was discharged ten days later. Tr. 264-74. Shortly after onset, in May 2012, Plaintiff was admitted again to RIH PHP, but attended for only five days before being discharged on May 7, 2012, for excessive absences.[4] Tr. 371.

         Throughout the period of alleged disability, Plaintiff's primary mental health treating source was Nurse Katelyn Pio, who worked in the office of Plaintiff's primary care physician, Dr. Joyce Coppola. Tr. 276-317, 510-58. Nurse Pio's notes record Plaintiff's subjective complaints of mood swings, irritability, violent outbursts, and increased depression and anxiety. Tr. 459, 462, 479. However, apart from somewhat consistently making clinical inquiry into the diagnostic criteria for depression, e.g., Tr. 300, 303, these notes do not reflect that a mental status examination or other objective testing or clinical methods were ever deployed, except that Nurse Pio occasionally recorded a GAF assessment. Tr. 297, 300, 531, 536, 553, 557. These GAF scores range from GAF 51 (moderate symptoms) to GAF 75 (slight symptoms). Id . Nurse Pio prescribed medication and referred Plaintiff to counseling. By mid-2012 and thereafter, Nurse Pio's notes mostly reflect that Plaintiff was doing well, although at some appointments she reported difficulties. Tr. 306 ("she feels like she has better control of her emotions"); Tr. 315 ("feeling well"); Tr. 510 ("two episodes of destructive behavior... throwing objects, punching walls"); Tr. 515 ("feeling well"); Tr. 539 ("feeling not well, " son in jail, daughter's house foreclosed, grandchild molested); Tr. 556 ("depression more stable").

         Also during the period of alleged disability, Plaintiff apparently met regularly for therapy with a licensed mental health counselor, Mr. Phillip Lowry. Tr. 318-19, 562-65. Apart from his two opinions, which were submitted in August 2012 and May 2014, it is impossible to know what clinical observations and findings he might have made or how frequently he saw Plaintiff because none of his treating notes were submitted.[5] On January 29, 2013, Plaintiff started treatment with an RIH psychiatrist, Dr. Wasim Rashid. Tr. 368-70. At intake, Dr. Rashid diagnosed major depressive disorder, recurrent, moderate, estimated her GAF at 50 and prescribed Remeron; after he began treatment, her GAF score was increased to and sustained at 52 (moderate symptoms). Tr. 358-65. Except for his observations of angry mood and thought content reflective of worthlessness and guilt, Dr. Rashid's findings on mental status examinations were generally within normal limits. Tr. 358-70. For reasons not disclosed in the record, the treating relationship with Dr. Rashid ended on July 2, 2013. Tr. 358.

         C. Opinion Evidence

         On August 6, 2012, the counselor, Mr. Lowry, submitted a letter in support of Plaintiff's disability claim in which he reported diagnoses of major depressive disorder, recurrent, moderate, generalized anxiety disorder, parent-child relational problem, and personality disorder not otherwise specified, together with a GAF score of 51 (moderate symptoms). Based on her "enduring pattern of very poor interpersonal functioning and impulse control, " he opined that "these behaviors will impact her ability to work by: not being able to get along with co-workers, being unable to accept instructions and criticisms from any supervisor, and being unable to interact appropriately with the general public" and that "[h]er ability to follow simple instructions when angered would be poor." Tr. 318.

         On September 21, 2012, Nurse Pio completed a one-page form opining that Plaintiff was "significantly limited" (the worst category on the form) in every mental health function listed on the form. Tr. 381. These findings resulted in her conclusion that Plaintiff could not engage in any employment, education, or skills training on a daily or weekly basis. Tr. 381. Nurse Pio's contemporaneous treatment note is completely inconsistent: on September 17, 2012, she wrote that "[Plaintiff] is feeling well... is independent in all ADL's... is tolerating all medications well... [and] has no acute complaints at this time." Tr. 515.

         On February 7, 2013, Plaintiff was examined by SSA consultative psychiatrist Dr. Ghulam Mustafa Surti. Tr. 353-56. Plaintiff told Dr. Surti that her depressive symptoms were a 9 on a scale of 1 to 10. Tr. 353. On mental status examination, Plaintiff was able to perform serial 3s from 100 to 79 with no mistakes; memory registration was three out of three, but recall was one out of three. Tr. 354. Her affect was sad and tearful and her mood was depressed; her speech and thought process were linear and goal-directed. Tr. 354. Dr. Surti diagnosed major depression, recurrent, severe, and estimated her GAF at 45 to 50. Tr. 355.

         On October 29, 2013, State agency consultant psychologist Clifford Gordon, Ed.D., reviewed Plaintiff's records as of that date and determined that she was suffering various severe mental impairments: affective, anxiety, and personality disorders. Tr. 105, 117. His RFC opinion concludes that Plaintiff's memory and concentration limitations would limit her to "simple instructions only, " but that she "retains ability to complete a normal eight-hour work day and normal work week, " although her moodiness and violent outbursts would restrict her to "work in [a] situation where she is more involved with production/objects and less involved in social[ly] demanding situation." Tr. 108, 120.

         On May 24, 2014, Mr. Lowry submitted a second letter, this time with two RFC forms. Tr. 562-65. In the first, he found that most of Plaintiff's limitations were moderate, but that she has marked limitations in her abilities to deal with detailed instructions or to work with others, including the general public, supervisors or co-workers. Tr. 559-60. In the other RFC, he made similar findings, in addition to the conclusion that she has a moderate restriction of daily activities. Tr. 563-64. As the source for these opinions, he mentions his missing progress notes, but also noted that he did not rely on any psychological evaluation because none had been obtained. Tr. ...

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