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Ortiz v. Berryhill

United States District Court, D. Rhode Island

November 9, 2017

SHAIRA APONTE ORTIZ, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

         On October 23, 2013, Plaintiff Shaira Aponte Ortiz, a non-English-speaking mother of three who moved to New England from Puerto Rico in August 2013, filed her second application for Supplemental Security Income (“SSI”) under § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3) (the “Act”), based on alleged limitations arising from claimed mental impairments consisting of panic attacks, anxiety, depression and bipolar disorder. The Commissioner of Social Security (the “Commissioner”) denied her application in reliance on the determination of an Administrative Law Judge (“ALJ”) that, despite the impairments of affective disorder and anxiety disorder, she retains the residual functional capacity (“RFC”)[1] to perform simple, routine tasks with simple, demonstrated (not written or oral) instructions, limited contact with coworkers and supervisors and no interaction with the public.

         Plaintiff has moved to remand or for reversal, arguing that the ALJ failed properly to weigh the medical and other opinion evidence in the record, failed properly to assess Plaintiff's statements regarding the severity of her symptoms, and improperly acted as his own medical expert. Defendant Nancy A. Berryhill asks the Court to affirm the Commissioner's decision. The 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 amply supported by substantial evidence and recommend that Plaintiff's Motion for Reversal or Remand (ECF No. 9) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 11) be GRANTED.

         I. Background

         A. Plaintiff's Background

         Plaintiff was a “younger person, ” twenty-nine years old, on the date she alleges as the onset of disability - March 9, 2012. Tr. 79. At that time she was living in Puerto Rico with her two children, then aged eight and eleven; her third child was born in April 2013. Tr. 196, 359-60. She has her GED and had two brief employment experiences, preparing and delivering pizza and working as a hostess at a school. Tr. 280. Otherwise, she has no past relevant work. Tr. 34, 49-50. While living in Puerto Rico, Plaintiff was found to be fully disabled by the Puerto Rican Administration of Socio-Economic Development Department of Family Nutritional Assistance and Bread-Work Program; documents from Puerto Rico indicate that she was receiving mental health treatment for unspecified conditions and was prescribed Prozac and Klonopin. Tr. 337-40, 346-50. After she moved to Rhode Island and initiated treatment at The Providence Center (“TPC”), Plaintiff stated that medical sources in Puerto Rico had diagnosed bipolar disorder and panic attacks and prescribed Depakote, Paxil, Prozac and Klonopin. Tr. 352. The file under review contains no treating records for the period prior to October 2013 when Plaintiff was first treated at TPC.

         Plaintiff's first SSA disability application, also alleging onset on March 9, 2012, was filed on August 13, 2012. Tr. 70. In it, she alleged panic attacks, anxiety and depression. Tr. 70. As far as the record reveals, Tr. 71-74, the only medical evidence presented to support her first application was a consultative examination performed on September 19, 2012, by psychologist Dr. Mark Daniel Sokol.[2] Tr. 341-43. In his report, Dr. Sokol recorded that Plaintiff's behavior was “bizarre, ” seemingly psychotic, and that she was unable to respond to even basic questions; he was so concerned about her inability to care for her children in light of the displayed level of total incapacity that he contacted the appropriate child protection agency. Tr. 342. After a child welfare investigator told Dr. Sokol that Plaintiff had been interviewed and appeared to the investigator to be “normal . . . no appearance of psychiatric problems, ” he reported that, “[i]t appears that this claimant was malingering.” Tr. 341-42. The application was denied initially on October 12, 2012; no further review was requested. Tr. 275-76.

         In connection with the current application, Plaintiff's October 25, 2013, function report states that she cannot be around too many people, but that she is able to care for her six-month-old daughter and two older children, that she goes out for appointments and to take the children to school, that she shops for food, that she attends church twice a week and that she gets along with authority figures (such as “bosses”) “fairly well.” Tr. 293-300. During her application interview, the field office staffer noted, “[n]o limitations noted, very pleasant, education average, interview in native language.” Tr. 277.

         Also in connection with the current application, Plaintiff submitted to a consultative examination with psychologist Dr. Lux Teixeira, performed on December 5, 2014. Tr. 359-62. This examination was conducted before Plaintiff began taking prescribed medication to address the symptoms caused by her mental health impairments. Tr. 360. Dr. Teixeira noted that he formed an adequate rapport with Plaintiff; based on testing and observation, he found anxious/depressed affect, depressed mood, fair to poor attention and concentration and impaired abstract reasoning. Tr. 361. He assigned a GAF score[3] of 44. Tr. 362. Nevertheless, he also found that her cognitive functioning was in the low average range, that she did not appear to have “significant impairment” in the area of relationships and social functioning, as well as that her “task persistence was adequate.” Id.

         At the hearing before the ALJ, Plaintiff claimed that she cannot work because she cannot be in a group with too many people. Tr. 50. She described debilitating panic attacks, as well as visual and audial hallucinations; she said that she gets upset easily, is depressed and tired, and that her social activities out of the house are limited in that they do not include parties. Tr. 53, 55. Nevertheless, she also testified that she lives with her boyfriend, cares for her youngest child, prepares breakfast, does the cleaning and visits her mother. Tr. 52-53, 54, 57. When asked if there are times when “you just don't do [chores and cleaning] because of how you feel, ” she responded, “[t]here are moments that I feel very depressed, but - I don't want to do anything at home, but I have to do it.” Tr. 54 (emphasis supplied).

         Apart from her report that she once went to an emergency room, Plaintiff has never been hospitalized in connection with her mental health impairments.

         B. Plaintiff's Medical and Opinion History through Reconsideration Phase

         As of her October 2013 intake at TPC, Plaintiff had been in New England for just a few months, spoke no English, had a five-month-old baby, was living with her three children (whose father was in prison) and a cousin she did not get along with, and had been off all medications since leaving her prescribers in Puerto Rico. Tr. 352-58. Despite these stresses, the TPC intake assessment notes that she had no limitations in adaptive functioning, except for nutrition (because of her poor appetite), that she had no impairment that might preclude employment for at least one year, that, while her interpersonal circle was limited to family, she was looking for a church to attend. Tr. 353. On mental status examination, she was found to be pleasant with no abnormalities except for her self-report of sadness, depression and anxiety. Tr. 355. The examiner specifically recorded his own observation - inconsistent with her self-report - of “euthymic” affect. Tr. 355. The report concludes:

Client presented as cooperative with her 5 month old infant daughter. She seems to take good care of daughter and attends to her needs. Client had a good attention span, able to provide information, no flight of ideas or grandiosity, no mood swings, affect and mood euthymic, even though she has not been in medications for about 2 months.

Tr. 358. A further assessment to rule out bipolar disorder (based on her report that it was a past diagnosis), therapy and a medication evaluation were recommended. Id.

         From November 2013 until January 2014, Plaintiff pursued the recommended therapy with a licensed social worker, Sandra Victorino. Tr. 365-73. Not yet on medication, Plaintiff described herself as irritable and with mood swings, Tr. 371, yet she was able to “manage mood with children, ” her attention and concentration were “alert” and she reported having a supportive family. Tr. 365, 370. Ms. Victorino wrote: “Reports that when she was taking medication reports that she is able to concentrate, have conversations with other and calm. Reports that when on medication she feels goal oriented and focused.” Tr. 371.

         On January 21, 2014, Plaintiff had the required (by TPC) pre-medication psychiatric evaluation with Dr. Sharath Puttichanda. Tr. 374-76. Despite the observation that “for the past five months she has not been on medication, ” Dr. Puttichanda found her to be “pleasant and cooperative, ” “future oriented, ” “caring for the 8 month old well, ” that “she seems to convey situational depression induced by stressors, ” “no disturbances of appetite” and “[n]o gross disturbances of sleep.” Tr. 374. On examination, Dr. Puttichanda found:

She is polite and cooperative . . . speaks in a regular rate and rhythm. She expresses her mood as anxious but affect is stable, full range and appropriate, Thought process is linear and logical. No delusions elicited. Denied SI or HI; No perceptual abnormality; Insight is fair and judgment is good.

Tr. 375. Dr. Puttichanda rejected the diagnosis of bipolar disorder:

Given her past diagnosis of bipolar disorder I tried to screen for mania/ hypomania or severe MDD. She did not endorse any of those symptoms. Also in screening for post partum depression and the risk associated with bipolar disorder there was no convincing evidence in her case.

Id. He noted that her “history of mood lability and fluctuation she describes seems very situational.” Id. Dr. Puttichanda found that “her obvious psychosocial stressors contribute heavily to mood and a general sense of feeling overwhelmed, ” and that she would “greatly benefit” from therapy; he also prescribed medication for anxiety and depression, with limits on quantity. Id.

         After this appointment, through May 2014, Ms. Victorino continued therapy while Plaintiff was taking prescribed medication, which was efficacious. Tr. 379-80 (“Ct. reports that feels medication is starting to help”). During these therapy appointments, Ms. Victorino's observations were largely normal, except for depressed and anxious mood, coherent but rapid speech, frequent waking at night and decrease in energy. Tr. 365, 370-73, 379-80, 397. Plaintiff also began to see Nurse Marol Kerge for what the record labels as “medication visit[s].” Tr. 377, 381, 419. Nurse Kerge is described in the record as the “prescriber.” E.g., Tr. 379. Plaintiff saw Nurse Kerge three times through the end of April 2014; during these appointments Nurse Kerge's observations on examination are normal except for depressed and anxious mood, which improved as Plaintiff began taking prescribed medication. 377, 381, 419; see Tr. 381 (“mood is more stable since Depakote was started and has less irritability . . . Behavior: calm, cooperative”).

         C. Opinion of Expert SSA Psychologist during Reconsideration Phase

         The ALJ's RFC rested on the “substantial weight” he afforded to the opinion of the expert Social Security Administration (“SSA”) psychologist, Dr. Jan Jacobson, during the reconsideration phase. Dr. Jacobson based his opinion on his review of the medical records, function report and field office observations summarized above. Signed on May 8, 2014, the opinion concludes that Plaintiff's affective and anxiety disorders amounted to severe impairments, but that the impact on her activities of daily living was mild, while the impact on her social functioning and ability to maintain concentration, persistence and pace was moderate, particularly in light of her “improvement in depression.” Tr. 92-93. In forming this opinion, Dr. Jacobson considered the consultative examination report of Dr. Teixeira but noted that the low GAF score mentioned in it was not supported by the treating record. Tr. 93. Regarding Plaintiff's RFC, Dr. Jacobson opined that she is limited in her ability to concentrate, persist and adapt, but that she can perform simple, basic tasks as evidenced by activities reflected in the record, including her capacity to care for and raise three children and attend to activities of daily living and basic household tasks like cooking and ...


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