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Ekenavie v. Berryhill

United States District Court, D. Rhode Island

February 22, 2018

LAUREN EKENAVIE, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE

         Before 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”)[1] 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.

         I. Background

         A woman 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.

         Before 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.

         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. § 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).

         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), 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.

         A. The Five-Step Evaluation

         The ALJ 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).

         B. Treating Physicians and Other Sources

         Substantial 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).

         When a 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 C.F.R. ...


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