United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE
the Court is the motion of Plaintiff Lauren Ekenavie to
reverse the Commissioner's decision denying Supplemental
Security Income (“SSI”) under § 1631(c)(3)
of the Social Security Act, 42 U.S.C. §§ 405(g),
1383(c)(3) (the “Act”). Plaintiff contends that
the Administrative Law Judge (“ALJ”) erred in
weighing the opinion evidence from her treating psychiatrist
and the non-examining expert psychologists in establishing
Plaintiff's mental residual functional capacity
(“RFC”) and that the ALJ's findings regarding
the credibility of Plaintiff's subjective statements are
contrary to applicable law. 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 consistent with
applicable law and amply supported by substantial evidence. I
recommend that Plaintiff's Motion to Reverse the Decision
of the Commissioner (ECF No. 10) be DENIED and
Defendant's Motion for an Order Affirming the Decision of
the Commissioner (ECF No. 11) be GRANTED.
closely approaching advanced age, Plaintiff's childhood
was marred by violence among her seven siblings and sexual
abuse by one of her brothers. Tr. 333. After dropping out of
high school before completing the eleventh grade, she had
seven children and was in a relationship with a man who
physically abused her and sexually abused two of the
daughters. Id. Several of her children were removed
by the state child protective service for reasons that are
unclear. See. Tr. 305 (husband placed children in
DCYF custody while Plaintiff in hospital for gall bladder);
Tr. 574 (children removed by DCYF due to Plaintiff's drug
use). Plaintiff's work history includes short stints at
such jobs as a cashier at McDonalds and Walmart, and most
recently as an assembler in a gun factory. Tr. 213. She
stopped working in March 2013 after she was let go due to
dropping boxes of materials that weighed more than twenty
pounds. Tr. 60. While she returned to work after the alleged
onset date of March 15, 2013, none of the post-onset work
amounted to substantial gainful activity. Tr. 13. During the
period in issue, Plaintiff was at times homeless, living in a
shelter, or living with one or the other of the two daughters
who are the only children with whom she has a relationship.
Tr. 246, 263, 334, 363.
the ALJ, Plaintiff contended that there are two principal
reasons why she cannot work: first, she relies on the
limitations in her ability to use her hands and arms due to
the impairments of carpal tunnel syndrome and cubital tunnel
syndrome; second, she points to the effects of her mental
health impairments, depression and anxiety with agoraphobia.
Tr. 61. The ALJ accepted that all of these impairments are
severe for purposes of Step Two and incorporated an array of
limitations based on them into his RFC determination.
Plaintiff now challenges only the ALJ's mental health RFC
findings, arguing that they are not based on substantial
evidence because greater weight should have been afforded to
the opinion of Plaintiff's treating psychiatrist, Dr.
Warren Ong, than to the opinions of the non-examining expert
psychologists, Drs. Clifford Gordon and Jeffrey Hughes, who
wrongly relied on a mischaracterization of Plaintiff's
activities of daily living. Plaintiff also asks the Court to
reexamine the reasoning marshaled by the ALJ to support his
conclusion that Plaintiff's subjective statements are not
entirely credible; because this reasoning is contrary to the
requirements of applicable law, she asks the Court to remand
the matter for further evaluation.
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. § 416.929(a). The Court must reverse
the ALJ's decision if the ALJ applies incorrect law, or
if the ALJ fails to provide the Court with sufficient
reasoning to determine that the law was applied properly.
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)
(per curiam); accord Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991). The Court may remand a case
for a rehearing under Sentence Four of 42 U.S.C. §
405(g), under Sentence Six of 42 U.S.C. § 405(g) or
under both. Jackson v. Chater, 99 F.3d 1086, 1097-98
(11th Cir. 1996).
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), 423(d)(1); 20 C.F.R. § 416.905. The
impairment must be severe, making the claimant unable to do
previous work, or any other substantial gainful activity
which exists in the national economy. 42 U.S.C. §
423(d)(2); 20 C.F.R. § 416.905-911.
The Five-Step Evaluation
must follow five steps in evaluating a claim of disability.
See 20 C.F.R. § 416.920. First, if a claimant
is working at a substantial gainful activity, the claimant is
not disabled. 20 C.F.R. § 416.920(b). Second, if a
claimant does not have any impairment or combination of
impairments that significantly limit physical or mental
ability to do basic work activities, then the claimant does
not have a severe impairment and is not disabled. 20 C.F.R.
§§ 416.920(c). Third, if a claimant's
impairments meet or equal an impairment listed in 20 C.F.R.
Part 404, Appendix 1, the claimant is disabled. 20 C.F.R.
§ 416.920(d). Fourth, if a claimant's impairments do
not prevent doing past relevant work, the claimant is not
disabled. 20 C.F.R. § 416.920(e)-(f). Fifth, if a
claimant's impairments (considering RFC, age, education
and past work) prevent doing other work that exists in the
local or national economy, a finding of disabled is
warranted. 20 C.F.R. § 416.920(g). Significantly, the
claimant bears the burden of proof at Steps One through Four,
but the Commissioner bears the burden at Step Five. Wells
v. Barnhart, 267 F.Supp.2d 138, 144 (D. Mass. 2003)
(five step process applies to SSI claims).
Treating Physicians and Other Sources
weight should be given to the opinion, diagnosis and medical
evidence of a treating physician unless there are good
reasons to do otherwise. See Rohrberg v. Apfel, 26
F.Supp.2d 303, 311 (D. Mass. 1998); 20 C.F.R. §
416.927(c). If a treating physician's opinion on the
nature and severity of a claimant's impairments is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques, and is not inconsistent
with the other substantial evidence in the record, the ALJ
must give it controlling weight. Konuch v. Astrue,
No. 11-193L, 2012 WL 5032667, at *4-5 (D.R.I. Sept. 13,
2012); 20 C.F.R. § 416.927(c)(2). The ALJ's decision
must articulate the weight given, providing “good
reasons” for the determination. See Sargent v.
Astrue, No. CA 11-220 ML, 2012 WL 5413132, at *7-8,
11-12 (D.R.I. Sept. 20, 2012) (where ALJ failed to point to
evidence to support weight accorded treating source opinion,
court will not speculate and try to glean from the record;
remand so that ALJ can explicitly set forth findings).
treating physician's opinion does not warrant controlling
weight, the ALJ must nevertheless weigh the medical opinion
based on the (1) length of the treatment relationship and the
frequency of examination; (2) nature and extent of the
treatment relationship; (3) medical evidence supporting the
opinion; (4) consistency with the record as a whole; (5)
specialization in the medical conditions at issue; and (6)
other factors which tend to support or contradict the
opinion. 20 C.F.R § 416.927(c). A treating
physician's opinion is generally entitled to more weight
than a consulting physician's opinion. See 20