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Bibby v. Berryhill

United States District Court, D. Rhode Island

February 20, 2018

MICHAEL J. BIBBY, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Michael J. Bibby was a child of seventeen when he applied for disability, but turned eighteen, triggering adult disability analysis, while the matter was pending. He claims that he has been disabled since he was fifteen (alleging onset on January 1, 2011) due to developmental delays, attention deficit hyperactivity disorder (“ADHD”), conduct and oppositional-defiant disorders and other special needs. The matter is now before the Court on Plaintiff's motion to reverse the Commissioner's decision denying Supplemental Security Income (“SSI”) under § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3) (the “Act”). Focusing on the determination of the Administrative Law Judge (“ALJ”) that, since turning eighteen, he has not been disabled, [1] Plaintiff contends that the ALJ's adult analysis is tainted by his failure properly to consider the evidence of Plaintiff's inability to handle customary work pressures. Because of this error, he argues, the ALJ's residual functional capacity (“RFC”)[2] assessment is not supported by substantial evidence. 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 to Reverse the Decision of the Commissioner (ECF No. 12) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 15) be GRANTED.

         I. Background

         Plaintiff was born prematurely on October 14, 1995, and was placed in foster care for his first year. Tr. 301. Following several placements with his biological mother, punctuated by stints in various foster homes, at the age of two and a half, he was placed with and ultimately adopted by his grandmother. Id. From the age of three, he began attending the Providence Center's early childhood unit, which referred him at age four for a psychiatric evaluation with psychiatrist Dr. James Greer because of serious temper outbursts and aggressive behavior. Tr. 440. Noting “significant environmental stress, particularly removal from his mother's custody and placement with his grandmother, ” Dr. Greer observed that Plaintiff was restless and distractible with low frustration tolerance but was unable to make a definitive diagnosis, opining that both ADHD and bipolar disorder should be considered. Tr. 441. Dr. Greer continued as Plaintiff's treating psychiatrist, seeing him approximately every one to three months, from age four through age nineteen. In addition, the Providence Center's records for the period covered by the pending claim reflects that Plaintiff and his grandmother met regularly (approximately monthly) with Mr. Louis Charron, a licensed social worker, for family therapy.

         Throughout the period in issue, the Providence Center's diagnoses for Plaintiff were mood disorder, ADHD, conduct disorder, adjustment disorder and oppositional/defiant disorder. Tr. 279, 416. Nevertheless, testing of Plaintiff's intellectual and cognitive abilities was done by a school psychologist in 2012, who observed Plaintiff to be “polite and respectful” with “adequate focus and concentration, ” and with “excellent” effort, cooperation, perseverance and tolerance for frustration. Tr. 442. Her testing yielded scores in the average range for reasoning ability but low average for processing and working memory. Id. In connection with the disability application, on August 27, 2013, Plaintiff was tested again by Dr. Jorge Armesto, a state agency consultative examiner. Dr. Armesto's intellectual test scores are loosely consistent with those of the school psychologist; they establish intellectual ability in the low average range, with average academic achievement, but with certain areas (working memory and associative learning and retrieval) in the low or very low range. Tr. 302-07. Dr. Armesto also administered emotional tests, which reflect moderate elevation in depression and anxiety, but average scores for attitudes related to conduct disorder and oppositional defiant disorder and for thoughts about self and others. Tr. 305. Like the school psychologist, Dr. Armesto observed Plaintiff to be polite and in good behavioral control with age-appropriate attention span, appropriate concentration and task persistence, and no displays of frustration or aggression. Tr. 305-06.

         The Providence Center's treating notes reflect Plaintiff's substantial improvement since early childhood. For example, in January 2015, Dr. Greer wrote “notable improvement has been seen in explosivity in recent years, ” as well as that Plaintiff was attending school and “doing well.” Tr. 359. Dr. Greer's mental status examinations typically resulted in normal findings, sometimes with findings of anxious or labile mood and incongruent affect. E.g., Tr. 359, 361, 388, 435. The therapist, Mr. Charron, also made mental status observations at nearly every appointment; these are almost uniformly benign, except for occasional agitation and incongruent affect. Tr. 343, 346, 399. At almost every appointment, Mr. Charron noted that Plaintiff was either cooperative or very cooperative with his grandmother. E.g., 342, 371, 437. And while therapy sessions occasionally addressed Plaintiff's anger, Tr. 436, most of them reflect that Plaintiff was doing well. E.g., Tr. 399 (“Client is doing very well. . . . Grand parent is very pleased with client's behavior. . . . Client was cooperative in this session with his grandmother.”)

         At school, Plaintiff was provided special education services. An IEP from 2014 describes him as a “respectful student who gets along well with his peers, ” but who “needs to appropriately express his frustrations and not walk out of the room when upset.” Tr. 240. After high school graduation, he was placed at the Community College of Rhode Island for a fifth year of education to receive transitional instruction. Tr. 232. Plaintiff did well during this year, Tr. 359, but found the instruction “non-challenging” and felt he was being treated “like a kid.” Tr. 370, 435. The teacher for the fifth year scored Plaintiff as academically average with good attendance, no issues with acquiring and using information and some problems with attending and completing tasks; this teacher noted that Plaintiff had problems in dealing with others, although he “demonstrates more control over his feelings while he is at school.” Tr. 264-68. However, the teacher expressed concern that Plaintiff's emotions could hinder him from successfully transitioning to independent living and recommended a “strict routine and guidance in order to be successful and independent.” Tr. 271.

         Also in 2014, on a referral from Goodwill Industries, Plaintiff was placed at Miriam Hospital for a part-time security job. Supervisors reported that, for several weeks, he worked very hard, was able to complete all duties assigned and able to get along with supervisors, with a “very mature and respectable” manner at all times. Tr. 260-61. Next, he was placed for several weeks with CVS to work as a stocking clerk, still part-time but for a more intense schedule than at Miriam. Performance findings from CVS were even more positive - his evaluation noted that he worked “very hard” and “would stay productive throughout his entire shift, ” “worked well with supervisors and . . . was able to make a good impression.” Tr. 258-59. At the end of the CVS placement, Plaintiff was urged to apply for an open third-shift position. Tr. 259.

         To support Plaintiff's disability application, Dr. Greer, Plaintiff's life-long treating psychiatrist, submitted three opinions. The first, signed on June 26, 2014, included both a child and an adult assessment. Tr. 348-53. In the 2014 child RFC, Dr. Greer opined to extreme limitations in three domains (acquiring and using information, attending and completing tasks, and interacting with others), marked limitations in self-care and no limits in the others. Tr. 350-51. Dr. Greer's 2014 adult RFC is similar, with severe limits in the abilities to relate to other people, to engage in routine, repetitive unskilled work, and to respond to customary work pressures. Tr. 352-53. Signed on February 11, 2015, Dr. Greer's third opinion records that Plaintiff is markedly limited in the ability to carry out simple instructions and extremely limited in the ability to make simple work-related decisions. Tr. 357-58.

         The ALJ did not afford “any significant weight” to Dr. Greer's 2014 and 2015 opinions because of their inconsistency with Dr. Greer's own treating notes. For “good reasons” to explain the determination, Sargent v. Astrue, No. CA 11-220 ML, 2012 WL 5413132, at *7-8, 11-12 (D.R.I. Sept. 20, 2012), the ALJ noted that, during treatment, Dr. Greer had consistently found Plaintiff to be stable, with only occasional conflicts with his grandmother, and that he left Plaintiff's medications unchanged. See Tr. 30.

         Instead of relying on Dr. Greer, the ALJ's adult RFC is based on the opinion of the state agency reviewing expert psychologist, Dr. Michael Slavit. Dr. Slavit found Plaintiff's capacity for appropriate social interaction to be the most problematic domain, but nevertheless opined to moderate limitations based on the Providence Center's treating record and Dr. Armesto's report. Tr. 89. Similarly, Dr. Slavit relied heavily on Dr. Armesto in finding moderate limits in understanding, memory and the ability to sustain attention and persistence. Tr. 87-88. Based on the functional limitations opined to by Dr. Slavit, the ALJ found that Plaintiff retained the ability to perform simple work involving object-oriented tasks, with significant limits on social interaction. Tr. 28.

         II. Issue Presented

         Plaintiff contends that the ALJ failed properly to evaluate the record references that establish Plaintiff's inability to handle customary work pressures and that this error leaves the ...


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