United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
Channy Vay was born in Cambodia in 1957. After suffering
horrific experiences during the Khmer Rouge regime, including
experiencing torture and the deaths of her parents and
witnessing the deaths of her siblings, as well as exposure to
other unspeakable violence, in 2000, she immigrated to the
United States to reunite with her husband, who had thought
she was dead. She settled in Rhode Island and, despite being
functionally illiterate and unable to communicate in English,
worked as a jewelry assembler from 2003 until 2008 and as an
electronic product assembler from 2008 until 2012. In May
2012, she was involved in a motor vehicle accident and
stopped working; a year later (on July 24, 2013), she applied
for Disability Insurance Benefits (“DIB”) under
42 U.S.C. § 405(g) of the Social Security Act (the
“Act”). Her application was denied following a
hearing before an Administrative Law Judge
(“ALJ”). During the ALJ hearing, Plaintiff
required the assistance of a Cambodian interpreter.
case, Plaintiff seeks reversal of the decision of the
Commissioner of Social Security (the
“Commissioner”) denying her DIB application.
Defendant Nancy A. Berryhill (“Defendant”) has
filed a motion for an order affirming 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 erred in failing to consider the
impairment of post-traumatic stress disorder
(“PTSD”) and in affording no weight to the
opinion of Plaintiff's treating nurse practitioner,
instead basing his Step Two and residual functional capacity
(“RFC”) determinations on the examining state
agency experts, who did not review the treating and opinion
records from CCAP and the October 2014 records from Rhode
Island Hospital. I also find that the ALJ relied on an
inadequately supported finding regarding the training needed
for Plaintiff's prior work as a jewelry assembler.
Accordingly, I recommend that Plaintiff's Motion to
Reverse the Decision of the Commissioner (ECF No. 11) be
granted and the Commissioner's Motion to Affirm Her
Decision (ECF No. 17) be denied.
was 55 years old (“Advanced Age” in Social
Security parlance) at the time of her alleged onset date. Tr.
75. She completed the first grade in Cambodia but has not
learned to read. Tr. 157. She speaks no English. This
language deficit is highly pertinent to the issues presented
in the case: the medical record reflects her challenges in
communicating with treating providers; the consulting
examination report reflects the opinion of the Social
Security Administration (“SSA”) expert
psychologist that, because of the language barrier, “it
would be difficult for her to engage in psychotherapy”
to treat her mental impairments, Tr. 405; and the ALJ hearing
transcript reflects repeated misunderstandings and
miscommunications culminating in the answer of questionable
reliability that became the foundation for the pivotal
finding regarding the skill required for her prior work.
aftermath of a May 3, 2012, automobile accident, Plaintiff
was treated at Coastal Medical and University Orthopedics for
a possible concussion, as well as for neck, right shoulder
and arm, leg and back injuries. E.g., Tr. 208, 321.
In addition to right-side injuries, the treating notes also
reflect depression, fatigue and memory loss associated with
the injuries caused by the accident. E.g., Tr. 208.
Plaintiff was treated with pain medication and was referred
to Paladin Physical Therapy for physical therapy. From
October 2012 through December 2012, she attended physical
therapy; the treating notes reflect some improvement in the
level of pain and limitation of motion in her lower back and
neck, although severe activity limitations persisted,
including a complete inability to lift more than one pound or
to lift and carry anything in her hand. Tr. 269-76. By
January 2013, Plaintiff had stopped going to physical therapy
because of the cost. Tr. 295, 408. By early 2014, Plaintiff
was still complaining of difficulty sleeping due to pain,
with limited range of motion, knee issues and a right
shoulder tear. Tr. 408-09. Also as of early 2014, Plaintiff
had never had any mental health treatment, except for an
occasional prescription for an anti-depressant; the only
mental health symptoms in the treating record to that date
are occasional reports of depression. In addition, as far as
the Court's review reveals, the treating record as of
early 2014 contains nothing reflecting Plaintiff's
horrendous experiences in Cambodia many years before.
of the references to depression in some of the treating
notes, Plaintiff was sent to an expert psychologist, Dr.
Louis A. Cerbo, for a consultative examination, which was
performed on November 23, 2013, with the assistance of an
interpreter. Tr. 403. To Dr. Cerbo, Plaintiff (for the first
time as far as the record reveals) disclosed the horrifying
details of what she endured in Cambodia. Tr. 403-05. Based on
this clinical interview and a mental status examination, Dr.
Cerbo diagnosed PTSD, as well as depression and a learning
disability (due to Plaintiff's illiteracy). Tr. 405. His
report notes that Plaintiff was unwilling to engage in
conversation about her Cambodian experiences “due to
poor coping skills to discuss such horrific trauma.”
Id. Based on her difficulty in even speaking about
her ordeal, as well as the language barrier, he opined that
her prognosis was “poor to guarded” because it
would be “difficult for her to engage in
psychotherapy.” Id. He assigned a Global
Assessment of Functioning (“GAF”) score of 43,
opined that Plaintiff would need a representative to manage
her funds, as well as that her mental impairments
significantly limit her ability to perform activities of
daily living, constrict her interests, create difficulties in
performing tasks requiring concentration and significantly
affect the ability to complete tasks. Tr. 405-06.
records (principally, those from Coastal Medical, University
Orthopedics and Paladin Physical Therapy, as well as Dr.
Cerbo's report) were reviewed initially and on
reconsideration by two SSA expert physicians and two expert
psychologists. Noting references to walking forty-five
minutes and gardening, as well as the complete absence of
mental health treatment, they found severe spinal, anxiety,
affective and learning disorders, and opined to an RFC
permitting light work and the ability to perform simple tasks
with regular breaks; they found no manipulative or
communicative limitations. Tr. 67-68, 69-71, 80-85. While
they acknowledged the symptoms of PTSD reflected in Dr.
Cerbo's report, they rejected PTSD as an impairment
because of Plaintiff's years of work preceding the car
accident. Tr. 68, 81. Accordingly, they did not even consider
whether Plaintiff's post-accident PTSD symptoms meet or
equal the PTSD Listing (12.15).
examiners completed their work in June 2014. As a result,
they did not see the October 2014 treating record from
Plaintiff's brief admission to Rhode Island Hospital,
where she presented with serious, potentially psychiatric,
symptoms (right-side pain, weakness, confusion and altered
mental status) that resolved in twenty-four hours. Tr.
412-36; see Tr. 426 (“unclear whether there
may be a psychiatric component to this problem list”).
They also did not see any of the treating records and opinion
evidence from CCAP, where Plaintiff's treating provider
was Nurse Practitioner David Greenblatt. Tr. 441-80. Nurse
Greenblatt's treating notes are detailed and loaded with
the results of clinical observation, physical examination and
testing. They reflect pain and joint swelling in the knees;
significant knee pain on palpation and manipulation; antalgic
gait; a complete absence of right arm range of motion and the
complete inability to lift the right arm; and extremely
serious PTSD. E.g., Tr. 449, 454, 457, 470-71. The
notes include Nurse Greenblatt's observation that the
knee and shoulder pain, which he found resulted in
significant functional limitations, appear to be related to
specific torture to those areas of Plaintiff's body by
the Khmer Rouge. E.g., Tr. 460. The 2014 CCAP
treating note references to torture are consistent with those
in Dr. Cerbo's 2013 report. E.g., compare Tr.
460 (“Was tortured by KR who cut tendons as a mean to
torture and wound her”), with Tr. 405
(“she was threatened to have legs sort off by the Khmer
on his clinical observations and testing, Nurse Greenblatt
submitted an opinion dated April 9, 2015. Tr. 437-40. In it,
he opined that PTSD and depression affect Plaintiff's
physical condition; that she cannot stand for more than one
hour, cannot sit or stand/walk for more than two hours, and
must use a cane; that she is limited to work with a sit/stand
option and must take frequent breaks; that she cannot lift
even ten pounds and effectively cannot use her right hand,
fingers or arm; and that she cannot twist, stoop, crouch or
climb ladders. Tr. 438-39. The Greenblatt opinion was
rejected by the ALJ in favor of those of the SSA examiners at
the reconsideration phase. Tr. 23-25.
Standard of Review
Commissioner's findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla - that is, the
evidence must do more than merely create a suspicion of the
existence of a fact, and must include such relevant evidence
as a reasonable person would accept as adequate to support
the conclusion. Ortiz v. Sec'y of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam);
Rodriguez v. Sec'y of Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981); Brown v. Apfel,
71 F.Supp.2d 28, 30 (D.R.I. 1999). Once the Court concludes
that the decision is supported by substantial evidence, the
Commissioner must be affirmed, even if the Court would have
reached a contrary result as finder of fact. Rodriguez
Pagan v. Sec'y of Health & Human Servs., 819
F.2d 1, 3 (1st Cir. 1987); see also Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991);
Lizotte v. Sec'y of Health & Human Servs.,
654 F.2d 127, 128 (1st Cir. 1981).
determination of substantiality is based upon an evaluation
of the record as a whole. Brown, 71 F.Supp.2d at 30;
see also Frustaglia v. Sec'y of Health & Human
Servs., 829 F.2d 192, 195 (1st Cir. 1987); Parker v.
Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (court also
must consider evidence detracting from evidence on which
Commissioner relied). Thus, the Court's role in reviewing
the Commissioner's decision is limited. Brown,
71 F.Supp.2d at 30. The Court does not reinterpret the
evidence or otherwise substitute its own judgment for that of
the Commissioner. Id. at 30-31 (citing Colon v.
Sec'y of Health & Human Servs., 877 F.2d 148,
153 (1st Cir. 1989)). “[T]he resolution of conflicts in
the evidence is for the Commissioner, not the courts.”
Id. at 31 (citing Richardson v. Perales,
402 U.S. 389, 399 (1971)). A claimant's complaints alone
cannot provide a basis for entitlement when they are not
supported by medical evidence. See Avery v. Sec'y of
Health & Human Servs., 797 F.2d 19, 20-21 (1st Cir.
1986); 20 C.F.R. § 404.1529(a).
defines disability as the inability to do any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C.
§ 416(I); 20 C.F.R. § 404.1505. The impairment must
be severe, making the claimant unable to do previous work, or
any other ...