United States District Court, D. Rhode Island
MICHAEL J. BIBBY, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
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,  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”) assessment is not supported by substantial
evidence. Defendant Nancy A. Berryhill asks the Court to
affirm the Commissioner's decision.
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
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.
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.
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.”)
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.
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.
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.
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.
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.
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 ...