Kandzerski v. Colvin

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, United States Magistrate Judge.

         Plaintiff Lori Kandzerski filed disability applications seeking 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”) based on her perception that her back pain and mental impairments prevent her from performing any work. Two expert physicians and two expert psychologists carefully reviewed over five hundred pages of records and opined to less-than-disabling limitations. An occupational therapist who performed a comprehensive functional capacity evaluation at the request of Plaintiff's primary care physician observed that Plaintiff was able to perform at least at the sedentary level but declined opine to her maximum functional level because of “self-limitation and inconsistent level of effort.” Otherwise, no medical source has opined to disabling limitations, either physical or mental. Nevertheless, Plaintiff contends that the residual functional capacity (“RFC”)^[1] findings by the Administrative Law Judge (“ALJ”) are not supported by substantial evidence and that the ALJ did not properly evaluate Plaintiff's credibility. The matter is before the Court on Plaintiff's motion for reversal of the decision of the Commissioner of Social Security (the “Commissioner”). Defendant Carolyn W. Colvin (“Defendant”) has filed a motion for an order affirming the Commissioner's decision.

         The motion have 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 more than sufficiently supported by substantial evidence and recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 11) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 14) be GRANTED.

         I. Background

         Despite a record, mostly from the Providence Veteran's Administration Medical Center (“VA”), that exceeds 1000 pages, no source has opined that Plaintiff has disabling limitations. During the hearing, the ALJ pointed this deficit out to counsel - “while the records are voluminous, really nobody has indicated a precise functional limitation to rebut the DDS.” Tr. 63. In response, counsel represented that opinions were being prepared and would be submitted by Plaintiff's primary care provider (Dr. Dawna Blake) and her treating psychiatrist (Dr. Sadaf Ali). See Tr. 62-63. The ALJ agreed to hold the record open, but nothing was provided. Tr. 82.

         Instead, Plaintiff submitted a Functional Capacity Evaluation (“FCE”) report prepared by an occupational therapist based on testing conducted two days after the ALJ hearing, on December 6, 2013. Tr. 978. The FCE report states that it was “requested by the referring physician [Dr. Blake] to determine the client's current level of function for the purpose of completing disability determination documentation.” Id. In the report, the occupational therapist opined that her “[c]linical observations did not match [Plaintiff's] reported level of pain as she reported severely disabling pain however was able to move through full AROM without complaint of pain and was able to complete functional testing without report of increased pain.” Tr. 980. Based on this finding, the FCE report concludes that Plaintiff's “self-limitation and inconsistent level of effort, ” coupled with the observed ability to perform at least at a sedentary level, established only that “it is not known if this observed physical demand level is this client's maximum functional level.” Tr. 978-81. Despite the representation of counsel that Dr. Blake would be submitting an opinion to support Plaintiff's disability claim, after the FCE report that Dr. Blake requested “for the purpose of completing disability determination documentation, ” Tr. 978, no opinion from Dr. Blake was ever produced. Nor was anything provided from Dr. Ali.

         Plaintiff claims to perceive her lumbar and cervical spine as causing extreme pain and physical limits. However, the objective medical evidence reflects only “[m]ild degenerative changes.” Tr. 326, 398; see Tr. 69 (ALJ confirms with counsel that records reflect only mild disc disease). While some tests showed decreased range of motion and strength, Tr. 654-59, other examination findings reflect normal range of motion of the spine, normal gait, and negative straight leg raising tests, e.g., Tr. 327, 532-33, 601-03, 979, as well as normal musculoskeletal examination findings. Tr. 532-33, 916. To address her complaints of pain in her cervical and lumbar spine, Plaintiff was prescribed conservative care, including a TENS unit, physical therapy and pain medication. Tr. 322-24, 533, 654.

         To treat her mental impairments, Plaintiff has received regular psychotherapy with a VA therapist, Ms. Ingrid Werge, and had regular appointments for supportive therapy and medical management with VA psychiatrist, Dr. Ali; she also participated in group sessions addressing stress and anxiety led by an array of mental health professionals. Tr. 288-977. At the therapy appointments, she reported anxiety and family stress and had varied mood and/or affect; at times, she reported that she was depressed, anxious, and/or tearful, e.g., Tr. 305, 339-40, 719-20, and, at other times, reported that she was calm with euthymic affect. E.g., 486, 570-71, 714, 782. Otherwise, treating mental status examinations reflect generally normal findings, including that she was cooperative with good eye contact and had intact memory, concentration, and attention. E.g., Tr. 305, 339-40, 571. As the ALJ noted, Plaintiff's Global Assessment of Functioning (“GAF”) scores^[2] are “all over the place, ” but many are in the moderate or mild range. Tr. 73-75. In particular, the GAF scores assigned by Plaintiff's longtime treating psychiatrist, Dr. Ali, range from a low of 55, which reflects moderate symptoms, to a high of 70, which reflects mild symptoms. E.g., Tr. 304, 429, 795. By contrast, Plaintiff's treating therapist, a licensed social worker, usually assigned GAF scores of 49 or 50, which are at the top of the range for serious symptoms, though she also at least once opined to a score of 55, which is moderate. E.g., Tr. 306, 676, 880. Other VA providers often assessed Plaintiff's symptoms as moderate. E.g., Tr. 344 (GAF 52); Tr. 488 (GAF 58); Tr. 549 (GAF 65). Plaintiff has never been hospitalized for mental health treatment. Tr. 693.

         In June 2013, at her own request, Plaintiff underwent a “brief screening” by a VA psychologist for post-traumatic stress disorder (“PTSD”). Tr. 691-95. At the time of this evaluation, Plaintiff was treating with Ms. Werge and Dr. Ali; while Ms. Werge was on maternity leave (returning in August), the record does not reveal why Dr. Ali did not perform the evaluation. Tr. 691. During the evaluation, Dr. Schartel observed that Plaintiff's mood and affect were depressed, overwhelmed, anxious and very tearful. Tr. 693. Based on Plaintiff's complaint of repeated trauma over her life, although she denied a single traumatic event, and based on Plaintiff's descriptions of “significant hyperarousal, as evidenced by irritability, sleep disturbance, constant anxiety and panic attacks, ” Tr. 694, Dr. Schartel diagnosed PTSD and mood disorder. Based on history, Dr. Schartel diagnosed ADHD. Based on Plaintiff's descriptions of rage at a boyfriend (she broke his windshield) and her attack on a woman of whom she was jealous, Dr. Schartel diagnosed personality disorder, rule out borderline personality disorder. Tr. 693. Dr. Schartel discussed treatment options but Plaintiff declined any treatment other than what she was already doing, except that she asked Dr. Schartel to see her for therapy until Ms. Werge returned from maternity leave. Tr. 694-95. Based on this one-time fifty-minute session with Plaintiff, Dr. Schartel assessed a GAF score of 49, which reflects serious symptoms. Tr. 694.

         In addition to the activities listed in her function report and during her testimony (simple meal preparation, wash dishes, laundry, sweep, vacuum, mop, making the bed, cleaning the bathroom, taking out the trash, use of public transportation, shopping for food, sewing and visiting with friends), the medical record reflects that Plaintiff was treated several times for poison ivy contracted while she was “trimming bushes” and “in the garden yesterday, . . . digging and clearing weeds.” Tr. 704, 762. It also contains references to a trip to Florida with her daughter to help her move and “hobbies of caring for a fish tank, yardwork” and of “working on geneology.” Tr. 71-72, 241-43, 583, 594, 696. During the FCE examination in December 2013, Plaintiff told the examiner that she is independent “with self-care ADLs and light IADL tasks.” Tr. 978-79. The examiner noted that, despite the claim that she needed assistance with “community tasks especially grocery shopping, ” she drove herself to and from the FCE examination and “reports no difficulty with driving.” Tr. 979.

         During the hearing, Plaintiff told the ALJ that she had applied to the VA for a disability pension; however, the VA found her to be only 20% disabled. Tr. 52, 65-66. Also during the hearing, Plaintiff claimed that she must lie down for six hours out of every day and cannot leave her home for five days a week. Tr. 74.

         II. Travel of the Case

         On August 13, 2012, Plaintiff applied for DIB and SSI, alleging disability beginning December 1, 2011. Tr. 161-73. Plaintiff's application was denied initially, Tr. 84-109, 136-39, and on reconsideration, Tr. 110-35, 145-50. At Plaintiff's request, Tr. 153-55, the ALJ held a hearing on December 4, 2013, at which Plaintiff, who was represented by an attorney, testified, Tr. 58-76. An impartial vocational expert also testified. Tr. 76-83. On December 31, 2013, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Act from her alleged onset date through the date of the decision. Tr. 43-57. On June 3, 2015, the Appeals Council denied Plaintiff's request for review, Tr. 10-14, making the ALJ's decision the Commissioner's final decision subject to judicial review. 42 U.S.C. § 405(g).

         III. Issues Presented

         Plaintiff's motion for reversal rests principally on the argument that the ALJ's RFC finding is tainted by error in that it is based on the state agency physicians and psychologists, whose file review was performed before Dr. Schartel's diagnosis of PTSD and personality disorder and before the FCE report prepared by the occupational therapist at Dr. Blake's request. She also contends that the ALJ erred in basing his adverse credibility finding on ...