United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
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”) 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.
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.
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.
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
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,
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 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.
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.
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.
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.
Travel of the Case
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).
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 ...