United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
“younger person” of thirty at the time of his
administrative hearing, Plaintiff Bryan Keith Dixon alleges
that he is disabled due to bipolar disorder and attention
deficit hyperactivity disorder (“ADHD”), among
other impairments. In his motion to reverse the
Commissioner's decision denying Disability Insurance
Benefits (“DIB”) and Supplemental Security Income
(“SSI”) under §§ 205(g) and 1631(c)(3)
of the Social Security Act, 42 U.S.C. §§ 405(g),
1383(c)(3) (the “Act”), Plaintiff claims that the
Administrative Law Judge (“ALJ”) erred in failing
to include a limitation based on the alleged need to work in
“some form of structured programming, ” as
reflected in the explanation provided by the non-examining
expert psychologist for his initial-level mental review.
Plaintiff also claims that the ALJ erred in failing to
include a limitation based on the statement that “he
may wish to complete one task before moving on to the next,
” as reflected in a neuropsychological report prepared
during a 2014 psychiatric hospitalization. In addition,
Plaintiff disputes the limited weight afforded to the
opinions of a therapist he saw at the Kent Center. Because of
these errors, Plaintiff contends that the ALJ's residual
functional capacity findings are not supported by substantial
evidence. Defendant Nancy A. Berryhill
(“Defendant”) has filed a motion for an order
affirming 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 no error. Accordingly, I recommend that Plaintiff's
Motion to Reverse the Decision of the Commissioner (ECF No.
11) be DENIED and Defendant's Motion for an Order
Affirming the Decision of the Commissioner (ECF No. 12) be
childhood, Plaintiff received special education, was
repeatedly arrested for assault and for breaking into cars,
abused cocaine and alcohol, and was diagnosed with
schizoaffective disorder, ADHD and depression. Tr. 514, 525,
640. After completing high school, Plaintiff was criminally
charged (ten arrests) with such offenses as disorderly
conduct, burglary and cocaine distribution. Tr. 555, 724. He
used drugs including “cocaine, benzoes, all types,
opioids, heroin, hallucinogens, marijuana, ecstasy, and bath
salts.” Tr. 587. Plaintiff's work history was
sporadic, reflecting jobs, for example in 2011, as a
dishwasher, which lasted for no more than five to seven
months. Tr. 45, 278-85. The most he ever earned in a single
year was when he worked as a dishwasher in 2011; his reported
income was $8885. Tr. 207. His first disability application
was filed in 2003 and denied on reconsideration. Tr. 237. No
material from that application is in the record. Id.
October 20, 2011, Plaintiff was tazed by New Hampshire police
after a chase that was precipitated by his attempt to break
into a car while he was high on bath salts; during this
incident, he fell and hit his head. Tr. 331, 361. He was
hospitalized first at Wentworth-Douglas Hospital and then at
Massachusetts General Hospital (“MGH”) because of
a very serious head injury; he had surgery to address a brain
hemorrhage and remained at MGH until November 16, 2011. Tr.
375. The record reflects that he appeared to have made a good
recovery in that, by November 9, 2011, he was responding
“very well to Psych services, ” and was able to
follow three-step commands, although his concentration was
limited. Tr. 409. A mental status examination performed on
November 15, 2011, was largely normal although he was
occasionally sad, with constricted affect, and, while not
depressed, he said his mood was “terrible”
“b/c i am missing a person.” Tr. 407 (doing well,
with no agitation/behavioral outbursts). Treating staff
concluded that he displayed agitation deemed “2/2 to
brain injury superimposed on an individual who is impulsive
and socially deviant at baseline.” Id.
he was discharged from MGH, Plaintiff returned to Rhode
Island and initiated a primary care treating relationship at
Primary Medical Group in November 2011. Tr. 506. Within a
month of discharge, he also filed his second disability
application alleging onset in January 2010. Tr. 215. The
second application file contains a consultative examination
report from a psychologist, who found him capable of
functioning in the low average range with moderate
depression, mild-to-moderate anxiety and
“attention/concentration spans varied, ” Tr. 518,
as well as from a neurologist, who found hearing loss and
tinnitus, mild gait imbalance and brief positional vertigo
from the head injury. Tr. 522. The claim was denied initially
in April 2012, Tr. 71, and Plaintiff did not pursue it. After
a hiatus without treatment from December 2011 through
September 2012, in October, Plaintiff resumed treatment with
Dr. Anna Filip, a family practitioner at Thundermist, at the
suggestion of his attorney. Tr. 564-70. She prescribed
medication to treat depression and ADHD. Tr. 571. By December
5, 2012, her examination reflects largely normal mental
findings, including “able to sit still during visit,
able to use full sentences and can complete full thoughts . .
. much improved since starting Adderall.” Tr. 564.
January 2013 until June 2014, Plaintiff was in jail in New
Hampshire. Tr. 28. Based on statements reflecting psychosis
(e.g., “I am the son of God”; “I
was Batman and became the Joker”), Plaintiff was found
incompetent to stand trial and sent to New Hampshire Hospital for
a competency/restoration evaluation. Tr. 525-26. There a
neuropsychological assessment was performed by Drs. Laura
Flashman and Megan Baldasarre (“Flashman/ Baldasarre
report”). Tr. 615-20. Their testing resulted in
findings of “low average intellectual abilities,
” with relatively intact performance on such skills as
memory and basic attention. Tr. 619. They opined that he
appears to have “mild subcortical systems dysfunction,
” potentially attributable to “recent head
injury” as well as to his “history of ADHD,
bipolar illness and polysubstance abuse.” Tr. 620. In
its recommendations, the report suggests, “he may wish
to complete one task before moving on to the next, as he may
have a harder time when he is trying to multi-task or manage
multiple projects at one time.” Id. The New
Hampshire Hospital discharge notes dated July 16, 2014,
include the observation that, despite the refusal to accept
recommended psychiatric medications, during “the entire
admission here, ” “he was in excellent behavioral
control” and that, at discharge, he was “in
stable condition.” Tr. 614. The discharge summary
reflects the conclusion of the treating staff that the
Flashman/Baldasarre report showed that “he was
generally intact.” Tr. 613.
2014, Plaintiff was released by New Hampshire on probation
back to Rhode Island; he resumed care with Dr. Filip at
Thundermist. Tr. 559. Two weeks later, he filed the pending
disability applications, resulting in a prompt file review by
expert psychologist Dr. John Warren. Tr. 86-96, 97-107.
Meanwhile, Dr. Filip sent him for a medication evaluation to
a psychiatric nurse specialist, Nancy Shea. Nurse Shea's
August 27, 2014, mental status observations were entirely
normal, including focused attention, euthymic mood and
appropriate affect. Tr. 555. Opining soon afterwards, Dr.
Warren explained his Step Two and Step Three findings:
“when sober and involved in some form of structured
programming, claimant retains the capacity to perform basic
tasks and relate with others well enough for routine
workplace purposes.” Tr. 91, 102. Dr. Warren opined to
an RFC that reflected Plaintiff's ability to perform
simple routine, repetitive tasks and instructions, with
moderate attentional, social and adaptational limitations.
Tr. 91-94, 102-04. Based, inter alia, on Dr.
Warren's opinion, the claims were denied initially on
September 29, 2014. Tr. 19.
October 2014, Plaintiff initiated mental health treatment at
the Kent Center with a therapist, Ms. Stacie Barden, LCSW,
and a psychiatrist, Dr. Liliya Koyfman. During intake with
Ms. Barden, Plaintiff stated that, “he thinks that
therapy and psychiatry will help him be approved [for SSDI]
so ‘I can collect a check and live off the government,
'” as well as (falsely, as far as the MGH record
reveals) that he was “in a coma for 19 days”; Ms.
Barden recorded her observation of psychosis and his reports
of delusions. Tr. 610. According to the record, Plaintiff
never saw Ms. Barden again. During Dr. Koyfman's initial
psychiatric evaluation in December 2014, Plaintiff told her
that he was anxious about money, having been denied
disability: “Between lawsuit and disability, I need some
kind of money and then I can look for a job.” Tr. 725.
On examination, Dr. Koyfman found decreased concentration,
with Plaintiff focusing only on his desire for a prescription
for Adderall, depressed mood, but appropriate affect and
thoughts and no psychosis or suicidal/homicidal ideation. Tr.
726. In January 15, 2015, based, inter alia, on an
assessment performed by expert psychologist, Dr. Stephen
Clifford, Plaintiff's disability applications were denied
on reconsideration. Tr. 110-31. Dr. Clifford affirmed Dr.
Warren's Step Two/Step Three explanation, and opined to
the same RFC. Id.
the second denial, Plaintiff continued to see Dr. Filip and
Dr. Koyfman. At a June 2015 appointment with Dr. Koyfman, on
examination, she noted appropriate affect, normal
concentration and impulse control, with no delusions or
hallucinations; the only findings of any significance are
“dysphoric” mood and “spontaneous”
speech. Tr. 686-87. By August 2015, Dr. Filip's mental
status evaluation was essentially normal. Tr. 658. Dr.
Koyfman sometimes reported irritated mood and impaired
impulse control and concentration, for example at the
appointment just before his ALJ hearing. Tr. 728.
reconsideration, but before the ALJ's hearing, in March
and December 2015, Ms. Barden submitted two substantially
similar mental RFC assessments; both opine to Plaintiff's
inability to attend for extended periods, to perform
activities on a schedule or sustain an ordinary routine, as
well as to marked social impairments. Tr. 643-45, 696-97. Ms.
Barden concludes that, “it is not likely that
[Plaintiff] would be capable of engaging in any substantial
gainful employment.” Tr. 642.
decision, the ALJ accepted as severe impairments substance
addiction disorder, personality disorder, anxiety and ADHD.
Tr. 22. Affording “great weight” to the
non-examining expert psychologists (Drs. Warren and
Clifford) and “little weight” to the
therapist, Ms. Barden, he found that Plaintiff's RFC
permitted him to perform simple, routine, repetitive work
with social limitations. Tr. 29-30. In reliance on the
testimony of a vocational expert, the ALJ found that
Plaintiff could perform his prior work as a dishwasher, as
well as office cleaner, both of which require educational
development Reasoning Level 2, and price marker, which can be
done by an individual limited to Reasoning Level 1.
Accordingly, the ALJ concluded that Plaintiff was not
disabled. Tr. 33. This case followed.
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) (per curiam); see also Barnes
v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991) (per
curiam); 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. § 404.1529(a).