United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
Carlos Albert Pacheco Marques contends that he became fully
disabled in September 2012, when he was involved in a motor
vehicle accident, even though he stopped working over a year
before because of a dispute with his supervisor. His
disability application, based on spine/leg problems and
depression/anxiety, complicated by substance abuse, was
denied by an Administrative Law Judge (“ALJ”).
His claim is now 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 ALJ erred in the weight afforded
to the opinions of his family medicine physician, Dr.
Samantha Greenberg, and in his evaluation of Plaintiff's
credibility. Defendant Carolyn W. Colvin
(“Defendant”) has filed a motion for an order
affirming the Commissioner's decision.
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 there is no 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. 13) be GRANTED.
left school in eleventh grade; for many years, he worked at
various laboring jobs, but also abused alcohol, cocaine,
marijuana, opioids and benzodiazepines. Tr. 243, 246. His
criminal history includes four arrests for driving while
intoxicated and a conviction for assaulting his mother's
sixty-one-year-old boyfriend, for which he served a year in
prison. Tr. 244, 269. During the period of alleged
disability, he lived at times with his girlfriend and at
other times with his mother and brother; he also socializes
with friends. Tr. 30; 245. He lost his last job at a printing
company in April 2011 because of a dispute with his
supervisor. Tr. 186.
record reflects Plaintiff's persistent complaints of
extreme back pain radiating into his legs. Although there is
no medical record to confirm it, he contends that the
September 4, 2012, motor vehicle accident significantly
exacerbated spinal issues to the point that they became
disabling. See Tr. 235-40; 307 (Memorial Hospital CT
showed some degeneration but no acute findings). The
follow-up MRI performed in October 2012 showed one moderate
disc bulge causing severe foraminal narrowing and several
mild bulges. Tr. 240. Plaintiff was referred to Dr. Cielo at
the Neurosurgery Foundation; on May 7, 2013, Dr. Cielo
confirmed chronic lower back pain with radiculopathy
secondary to lumbar spondylitic disease, and discussed
treatment options, which included “surgical
management.” Tr. 250. Dr. Cielo's notes reflect
that Plaintiff told him that he was not using any
“recreational drugs, ” even though the record
reflects that he was actively using marijuana and
non-prescribed benzodiazepine and opioids during the same
time period. Compare Tr. 250, with Tr. 244,
263. Apart from this appointment with Dr. Cielo, all of the
treatment for Plaintiff's spine took place at the
Memorial Hospital Family Care Center or the Memorial Hospital
Pain Management clinic.
Family Care Center, Plaintiff's initial primary family
practitioner was Dr. Thorpe, who saw him from October 2012
until May 2013. Her records reflect that Plaintiff
consistently described back pain as “10/10, ”
that he declined surgery, and that the appointments were a
constant struggle over his desire for prescriptions for
strong muscle relaxants and pain medication. E.g.,
Tr. 253 (Plaintiff asks, “can't you give me a speed
pill?”; told not appropriate); Tr. 274 (Plaintiff told
“we will not be prescribing chronic pain meds and no
muscle relaxants”); Tr. 281 (asking for more Soma;
admitted taking marijuana and unprescribed Percocet,
clonazepam and possibly methadone). At one appointment, Dr.
Thorpe noted, “not obviously under the influence but
there was concern as he kept jumping from one topic to the
other and had a hard time following.” Tr. 282. Dr.
Thorpe's records establish that, despite his complaints
of pain at the level of “10/10, ” Plaintiff
consistently reported that he was taking care of his elderly
mother; he also said that he was “doing things (car
work)” for friends, for which he was paid with drugs,
such as “vicodins, percocets, speed in the am's,
clonidine, clonazepam.” Tr. 253, 259, 274; see
also Tr. 313 (Plaintiff cared for his girlfriend's
children). At her first two appointments, Dr. Thorpe's
physical examinations of his back resulted in her observation
of tenderness, positive leg raise and decreased sensation on
the left, but not decreased range of motion. Tr. 304. After
that, her notes on physical examination typically yielded no
findings, except occasional muscle tension. E.g.,
Tr. 257 (“neg straight leg raise . . . normal
ROM”); see Tr. 297 (“hypertrophic
paraspinal lumbar musculature”). Dr. Thorpe referred
him to the pain management clinic at Memorial Hospital, which
gave him three spinal injections, but only Tylenol, which
frustrated him. Tr. 263, 315-17.
the focus of her treatment was back pain, Dr. Thorpe also
addressed Plaintiff's complaints of depression. She
prescribed medication and referred him to psychiatrist Dr.
Ong for an evaluation in January 2013; Dr. Ong diagnosed
depression and post-traumatic stress disorder, as well as
polysubstance dependence in sustained partial remission. He
recommended medication and therapy as soon as Plaintiff was
stabilized. Tr. 269-70. At her last appointment with
Plaintiff in May 2013, Dr. Thorpe reiterated that she was
encouraging counseling, noted Plaintiff's report of pain
of “10/10, ” but refused to prescribe
“speed.” After her first appointment at which she
noted “flat affect, depressed mood, decreased desire to
do anything, ” Tr. 300, Dr. Thorpe's mental status
observations reflect no abnormal findings, except once she
noted that he was “at times laughing
inappropriately.” Tr. 254; see Tr. 257
(“Mood and affect appropriate”); Tr. 264
(“no abnormalities”); Tr. 267 (“[n]o
abnormalities”); Tr. 272 (“[n]o
abnormalities”); Tr. 282 (questioning whether he is
“under the influence”); Tr. 297 (“[n]o
Dr. Thorpe left the practice, Plaintiff appears to have been
switched to another family medicine doctor, Dr. Samantha
Greenberg,  although he did not begin to see her
regularly until December 2013. In November 2013, Dr.
Greenberg wrote a letter expressing the opinion of the
practice - not her own opinion as she had seen him only twice
as of that date - that Plaintiff's functional capacity
was adversely impacted by back pain particularly because his
prior work involved manual labor. Tr. 340. The letter does
not opine that he cannot work at all. After she began seeing
Plaintiff regularly, she continued to prescribe medication to
treat depression and to consider his requests for stronger
pain medication for his back. Her physical examinations do
not reflect many serious abnormal findings. Tr. 328
(“Back. No pain. . . Slightly down affect. Otherwise
appropriate”); Tr. 331 (“Pain to palp over L trap
. . . Upset, tearful . . . Full ROM, pain w/ ROM”); Tr.
352 (no observations of spine; “[d]enies SI, slightly
decreased affect but appropriate”); Tr. 359 (no
observations of spine; “[d]enies SI/HI”); Tr. 367
(no observations of spine; “[c]onstricted
affect”); Tr. 372 (no observations of spine;
“[a]ffect blunted.”); Tr. 377 (pain with
palpation and extension, “[p]ain to palp over R SI
joint, exquisite . . . [f]lexion limited”); Tr. 382
(“Pain to palp over R SI joint . . . Depressed mood and
affect”). Examinations by other physicians in the
practice yielded similarly benign results. See Tr.
338 (“Mild lumbar paraspinous tenderness. ROM limited
in flexion and extension . . . SLR neg. bilaterally”);
Tr. 363 (“muscles tight lumbar back and tender . . .
affect a tiny bit flat, mood a bit down”).
several months, in January 2013, Dr. Greenberg capitulated to
Plaintiff's persistent requests for narcotic pain
medication but only on condition that he get counseling
treatment for depression and that he follow-up on the
suggestion that surgery might mitigate his back pain. Tr.
373. Plaintiff was very “upset by this conversation . .
. [w]alked out of encounter.” Id. Following
this appointment, Plaintiff had what appears to be an intake
appointment with a psychologist and one counseling
appointment with another psychologist, both in April 2014,
just before the ALJ hearing; an appointment with Dr. Cielo,
the neurosurgeon, had been scheduled for shortly after the
ALJ hearing. Tr. 34, 374, 379. At the counseling appointment
with the psychologist, Plaintiff said that he believed the
depression was caused by chronic back pain and would be
alleviated if his primary care doctor would prescribe
narcotics. Tr. 379.
the period reflected in the record, except for the two
appointments with psychologists just before the ALJ hearing
that Plaintiff appears to have attended so he would be
prescribed narcotics, Plaintiff never accessed
therapy. Although Dr. Greenberg noted early in the
course of treatment that Plaintiff told her that he had
completed counseling at Gateway, Tr. 351, there are no
records reflecting that he did.
Travel of the Case
filed his DIB and SSI applications on October 15, 2012,
alleging disability beginning September 4, 2012. Tr. 152-67.
They were denied initially and on reconsideration, Tr. 96-99,
102-07. At the hearing, the ALJ heard testimony from
Plaintiff, who was represented by counsel, a medical expert,
psychiatrist Dr. John Ruggiano, and a vocational expert. Tr.
27-47. On June 10, 2014, the ALJ issued a decision finding
that Plaintiff was not disabled at any time since his
application date, and was therefore not entitled to receive
the requested benefits. Tr. 15-26. The Appeals Council denied
Plaintiff's request for review, Tr. 1-4, rendering the
ALJ's decision the final decision of the Commissioner.
Plaintiff has exhausted his administrative remedies, and this
case is now ripe for review. 42 U.S.C. §§ 405(g),