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Dixon v. Berryhill

United States District Court, D. Rhode Island

February 23, 2018

BRYAN KEITH DIXON, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

         A “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[1] findings are not supported by substantial evidence. Defendant Nancy A. Berryhill (“Defendant”) has filed a motion for an order affirming 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 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 GRANTED.

         I. Background[2]

         During 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.

         On 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.

         After 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.

         From 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[3] 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.

         In July 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.

         In 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.[4] 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[5] 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.

         Following 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.

         After 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.

         In his 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)[6] 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.

         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) (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).

         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. § 404.1529(a).

         III. Disabilit ...


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