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Vay v. Berryhill

United States District Court, D. Rhode Island

January 15, 2018

CHANNY VAY, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, United States Magistrate Judge.

         Plaintiff 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.

         In this 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”)[1] 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.

         I. Background

         Plaintiff 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.

         In the 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.

         Because 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, [2] and 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.

         These 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).

         The SSA 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.[3] 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 Rouge”).

         Based 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.

         II. Standard of Review

         The 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).

         The 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).

         III. Disability Determination

         The law 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 ...


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